The Court of Appeal has partly allowed a mother’s appeal against orders concerning her child, K, finding that the High Court lacked jurisdiction to authorise his transfer from Ireland to the care of Dundee City Council’s Children’s Services in Scotland.
In a judgment delivered on 29 April 2015, Ms Justice Finlay Geoghegan said the High Court was right to find that K was habitually resident in Scotland when the Irish proceedings began in November 2014. The appeal court also upheld the finding that the courts of Scotland, rather than Ireland, had jurisdiction over parental responsibility matters concerning him.
But the court ruled that those findings did not themselves give the High Court power to order K’s transfer. It said no Scottish court order before the High Court required K to be returned to Scotland. The Scottish interim compulsory supervision order required him to live at a place of safety, with its location withheld from his mother, and provided for supervised contact. It did not direct his return from Ireland or his placement with Dundee City Council’s Children’s Services.
The appeal court said the Scottish courts had to decide whether K should leave his Irish foster placement and return to Scotland. It found the High Court had exceeded its jurisdiction in making orders permitting the Child and Family Agency (CFA) to remove K from his placement and transfer him to the Scottish authority. The court also rejected reliance on the High Court’s inherent jurisdiction as a basis for those orders.
The court therefore vacated the two parts of the High Court order authorising the transfer and the steps needed to carry it out. It did not order K’s return to Ireland. At the time of the appeal, he was already in Scotland in the care of Dundee City Council’s Children’s Services; the appeal court said an order reversing that move would itself involve a parental responsibility decision for which Irish courts lacked jurisdiction.
The CFA was directed to provide the judgment to Dundee City Council’s Children’s Services and ask that it be brought to a future hearing concerning K. The mother was given liberty to use the judgment in future applications in Scotland or Ireland. The court noted that it remained open to her to apply to the relevant Scottish body or court to bring K to live in Ireland.
The appeal court also clarified that a District Court hearing childcare proceedings with a European dimension must consider whether it has jurisdiction under the EU Regulation on parental responsibility and, where another member state’s courts have jurisdiction, declare that it has none. It said the District Court retains a limited power to make urgent provisional protective orders. The court left open the extent of that power and did not decide the District Court’s role under Article 15.