The District Court has ordered that further proceedings concerning a child in care be transferred to the courts of England and Wales, after finding that Ireland had jurisdiction but that the English and Welsh courts were better placed to deal with the case.
The judgment, delivered by Judge Paul Kelly on 24 May 2018, concerns a child identified as K M. The court said the child was born in Letterkenny on 21 January 2018 and was placed in the care of the Child and Family Agency the following day under an emergency care order. He remained with foster carers in Ireland.
The court found Ireland was the child’s habitual residence under Article 8 of the EU Regulation on parental responsibility. It said Ireland was the only country he had known and that the Irish court had jurisdiction. The court became seised of the matter on 22 January, when the emergency care application was lodged; it said no proceedings were then before the courts of England and Wales.
The question before Judge Kelly was whether the case should nevertheless be transferred under Article 15. The Agency and the child’s guardian ad litem supported transfer. The judgment records that the child’s parents were UK citizens habitually resident in England, where his half-siblings and extended family also lived. A paternal aunt had offered to care for him and had passed the initial assessment stage.
The court concluded that the child had a particular connection with England and sufficient proximity to rebut the usual presumption that the case should be heard where he was habitually resident. It said a transfer would bring him closer to his family, allow access to support services, and make contact with his parents easier. The court also cited the Blackburn local authority’s documentary records and access to witnesses.
The judgment records the guardian ad litem’s view that the transfer would not harm the child. At four months old, he was nonverbal and dependent on adult carers; the guardian considered he had not formed attachments to his foster carers so strong that separation would be detrimental. The foster carers were expected to travel with him to support a handover.
Judge Kelly ordered the courts of England and Wales to be seised within six weeks. He also granted the Agency liberty to apply for a further order if necessary. The judgment noted an earlier English High Court order, dated 16 March 2018, declaring that the English and Welsh courts did not have jurisdiction over parental responsibility at that time; the English local authority had said it would accept designation of an Irish interim care order if the proceedings were later transferred.
The judgment states that the hearing took place in camera and warns against publication of material likely to identify the child. This draft therefore retains the anonymised identifiers used in the judgment.