The High Court has ordered the immediate release of a three-year-old child from the Child and Family Agency’s care to the parents, quashing Irish interim care orders made while the family was living in Ireland.
In a judgment delivered on 29 September 2017, Mr Justice Richard Humphreys also ruled that two English orders concerning the child were not recognisable or enforceable in Ireland. He said the English orders had been made without advance notice to the parents, and that serving them after they were made did not give the parents an opportunity to arrange a defence as required by the applicable EU regulation.
The court heard five linked proceedings: an application concerning recognition and enforcement of the English orders, three judicial reviews and a habeas corpus application. The judge dismissed the parents’ motion to set aside an earlier ex parte High Court order on non-disclosure grounds, but allowed their challenge under Article 33 of the regulation. The resulting order declared the English orders not recognisable or enforceable in the State.
The judge quashed District Court orders made on 25 and 31 July, and on 28 August and 25 September. He found that the conduct of the July hearings created a reasonable apprehension of bias and breached basic fair-procedure requirements. The judgment cited interventions directed at the parents’ barrister, including a threat to cite her for contempt, criticism of her representation and a demand to inspect a parent’s iPad. The judge also found that the August decision failed to state and apply the correct statutory test for an interim care order, lacked adequate reasons and did not properly weigh the family’s rights.
The agency’s case had relied on concerns including past domestic-violence incidents, difficulty assessing the child and the parents’ proposed sailing trip to Spain. The judge described the evidence of likely harm as weak on the material before him. He noted that the English social worker had said the risk remained unassessed because the parents had not engaged with services; the agency’s stated aim had been to facilitate safety pending execution of the English orders.
The court declined to remit the matters to the District Court. It ordered that any further proceedings involving the parents be heard by a different judge. A separate injunction restrains anyone with notice of the order from transferring the child out of Ireland without parental consent or a further Irish court order expressly authorising transfer, made on notice or notified in time for an effective challenge.
The judgment did not determine the child’s current habitual residence. It said any future consideration of that issue would need to take account of circumstances at that time, and suggested that the parents and authorities consider an assessment in Ireland to avoid further litigation.