The Supreme Court dismissed the Child and Family Agency’s appeal and affirmed the Court of Appeal’s order concerning a child identified as KJ. It agreed that the High Court had wrongly ordered the child’s return from Ireland to the care of Dundee City Council Children’s Services. The judgment was delivered by Justice O’Donnell on 28 July 2016.
The case concerned jurisdiction and procedure under EU Regulation 2201/2003, rather than a decision on the child’s care or best interests. The Supreme Court agreed that the child was habitually resident in Scotland, so Scottish courts had jurisdiction over parental responsibility. Irish courts could act only under Article 20, which permits urgent provisional or protective measures in limited circumstances.
The court held that Article 20 did not allow the High Court to make the order directing the child’s return to Scottish social services. No Scottish court had ordered the return, and Dundee City Council Children’s Services had not sought it. The judgment said the Irish proceedings had effectively treated habitual residence as enough to justify return, without a court with substantive jurisdiction deciding that return was in the child’s interests.
The judgment also rejected the argument that the District Court could not examine jurisdiction under Article 17. A court dealing with parental responsibility must consider whether it has jurisdiction and, if another state’s courts have jurisdiction over the substance, must not exercise that substantive jurisdiction. The Supreme Court said the District Court was competent to carry out that examination.
The High Court’s return order had already been carried out after it refused a stay. The Supreme Court said it would be wrong to take further steps to reverse that outcome: Scottish courts retained jurisdiction to decide where the child should live and how care should be provided, wherever the child was. It therefore dismissed the Agency’s appeal and affirmed the Court of Appeal’s order, without making a decision on care or welfare.
The Supreme Court directed the Agency to provide the approved judgment to Dundee City Council Children’s Services so it could be brought to the attention of any future hearing concerning the child. The judgment also recorded a guardian ad litem’s report describing a close and affectionate relationship between the child and his mother, and their stated wish to remain together in Ireland.