Judgment: 2017-05-03 · Court archive

District Court finds it has jurisdiction over child protection case under EU presence rule

After finding that the child’s habitual residence could not be established and that the parties had not agreed to confer jurisdiction under Article 12, the court held that Article 13 applied because the child was present in the state.

An Chúirt Dúiche / The District Court · [2017] IEDC 11

Who, what, where, when and why

Who
  • The Child and Family Agency (Applicant)
  • F
  • Mother
  • Brendan Toale
What

After finding that the child’s habitual residence could not be established and that the parties had not agreed to confer jurisdiction under Article 12, the court held that Article 13 applied because the child was present in the state.

Where

No place detail is included in this summary.

When

Judgment:

Other dates in the report
  • 1 March 2017

    The decision followed an earlier ruling on 1 March 2017 that the court could not establish F’s habitual residence. The court heard further submissions on 16 March from the Child and Family Agency, the mother and the guardian ad litem. Judge Brendan Toale delivered this decision on 3 May 2017.

  • 9 August 2016

    The judge identified the relevant date as falling between 29 July and 9 August 2016, most probably 2 August and in any event before the hearing began on 9 August. The Child and Family Agency and the mother were parties to the case on that date. The guardian ad litem had been appointed after the interim care application hearing concluded on 9 August and was not a party at the relevant date. The judge did not decide whether the guardian was a party to the proceedings later.

Why

Reasons reported in the judgment

The District Court held that it had jurisdiction in proceedings concerning child F under Article 13 of the EU Brussels IIa Regulation, which gives jurisdiction to the courts of the member state where a child is present when habitual residence cannot be established and jurisdiction cannot be determined under Article 12.

The District Court held that it had jurisdiction in proceedings concerning child F under Article 13 of the EU Brussels IIa Regulation, which gives jurisdiction to the courts of the member state where a child is present when habitual residence cannot be established and jurisdiction cannot be determined under Article 12.

The decision followed an earlier ruling on 1 March 2017 that the court could not establish F’s habitual residence. The court heard further submissions on 16 March from the Child and Family Agency, the mother and the guardian ad litem. Judge Brendan Toale delivered this decision on 3 May 2017.

The parties did not dispute that F was a national of the state and therefore had a substantial connection with it for the purposes of Article 12. They also agreed that the court had to consider Article 12 before relying on Article 13. The issue was whether all parties had unequivocally agreed to the court’s jurisdiction by the time the proceedings began.

The judge identified the relevant date as falling between 29 July and 9 August 2016, most probably 2 August and in any event before the hearing began on 9 August. The Child and Family Agency and the mother were parties to the case on that date. The guardian ad litem had been appointed after the interim care application hearing concluded on 9 August and was not a party at the relevant date. The judge did not decide whether the guardian was a party to the proceedings later.

The mother argued that she had accepted the court’s jurisdiction by appearing without challenging it, and that the Agency had done so by bringing proceedings. She also relied on an alleged voluntary care agreement. The judge said no such agreement had been proved, though he was prepared to accept that a written reception into care form existed or that an agreement in standard terms could be implied. He found that it did not confer jurisdiction over these separate proceedings.

The judge concluded that neither the mother’s non-objection nor the Agency’s decision to issue proceedings amounted to an agreement between them to confer jurisdiction. He found no express or unequivocal agreement in place by the relevant date. As a required element of Article 12 was missing, the question of whether jurisdiction under that provision was in F’s best interests did not arise.

The court therefore held that jurisdiction could not be determined under Article 12. Because F was present in the state, Article 13 applied and the courts there had jurisdiction. The decision did not determine the guardian ad litem’s later party status or address the separate question of F’s habitual residence.

Read the original court judgment

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