The Supreme Court allowed a mother’s appeal against a High Court decision authorising the Child & Family Agency (CFA) to ask an English court to take jurisdiction over a child care case. In reasons delivered on 19 July 2017, the Court explained how such transfer requests must be assessed under EU law. It did not transfer the case to England or decide the underlying child care application.
The case concerns R, born in Ireland in October 2014 after the mother, identified as JD, moved from the United Kingdom while pregnant. The judgment says UK authorities had concerns arising from her history and had considered foster care for the unborn child. R’s older sibling, S, had been placed in institutional care in the UK in 2010. The judgment records those matters as background to the proceedings, not as new findings about the mother’s current parenting.
After R’s birth, the CFA sought a care order in the District Court. That application was refused because the District Court considered the hearsay evidence on which the CFA intended to rely inadmissible. On the CFA’s appeal, the Circuit Court ordered R’s provisional placement with foster carers, and the order was renewed regularly. The mother had regular access. Separately, the High Court authorised the CFA to request that the High Court of Justice in England and Wales assume jurisdiction under Article 15 of the Brussels II Regulation. The High Court left R with the foster family in the meantime.
The Supreme Court referred questions about Article 15 to the Court of Justice of the European Union (CJEU). The CJEU held that the provision can apply to public law care cases even when a separate proceeding would need to be started in the other state. It said a transfer must offer genuine and specific added value to the case and must not be liable to harm the child’s situation. The assessment must consider possible effects on the child’s family, social and emotional attachments and material circumstances. A parent’s reasons for moving between states generally matter only insofar as they may have adverse repercussions for the child.
The Supreme Court said the child’s best interests must be considered separately from the question of which court is better placed to hear the case. It also said the court first dealing with an international child care matter should generally address jurisdiction, rather than a separate High Court application where District Court proceedings are already under way.
By the time the appeal returned after the CJEU ruling, the CFA had informed the Supreme Court there was no intention to seek a transfer to the UK. The case remains in Ireland. The interim care order had continued, and the foster carers were willing to care for R long term. The Court allowed the appeal, observing that the child’s interests were paramount and that delay in court proceedings can affect the potential outcome of sensitive cases.