The Supreme Court has upheld a finding that the courts of England and Wales have jurisdiction over the care of an anonymised child, but adjourned for one week its decision on whether he should return there from Ireland.
The urgent appeal concerned orders made by the High Court on 24 June 2014. The High Court had declared under Article 17 of the EU regulation that Irish courts lacked jurisdiction over parental responsibility because the English and Welsh courts were first seized of the matter. It also made a provisional order under Article 20 allowing the Child and Family Agency to move the child from his care placement in Ireland to Birmingham City Council. That return order was stayed pending appeal and to allow him to finish the school year.
The Supreme Court dismissed the appeal against the Article 17 declaration. It said the primary questions of fact and the decision on care and custody belonged to the courts of England and Wales. The court said the application was not brought under Article 15, the regulation’s child-abduction provision, and treated the return question as one about provisional and protective relief under Article 20.
The circumstances had changed since the English High Court made a return order on 3 April. That order, made without notice and on limited information, found the child habitually resident in England, wrongfully retained in Ireland, and directed his return to Birmingham City Council. In an email placed before the Supreme Court, Birmingham City Council said the mother had expressed a wish to remain in Ireland with the child and acknowledged that she now accepted the father had perpetrated domestic violence against her. The council said it could not yet assess whether she could meet the child’s needs and protect him, and raised concerns about his educational development. It said an assessment could be carried out while mother and child remained in Ireland and would not actively oppose them staying if the child could be safeguarded.
The Supreme Court said the email raised the possibility that the English court might consider an immediate return unnecessary. It adjourned the Article 20 appeal for one week to allow Birmingham City Council, and the Child and Family Agency if appropriate, to seek the English High Court’s view on whether the child needed to return immediately pending a welfare decision. The Supreme Court said it would be disposed to order a return if the English court considered it appropriate.
The court did not decide the child’s future care. It continued the prohibition on publishing details likely to identify him and allowed the agency to share necessary information with the English authorities and courts.