The High Court has rejected a mother’s judicial review challenge to a District Court decision inviting the parties to seek transfer of her son’s care proceedings to England and Wales. The decision concerned jurisdiction over the proceedings; it did not order the child to move there.
Mr Justice Max Barrett delivered judgment on 15 March 2018. The District Court had found that the child, identified as J, had a particular connection to England and Wales and that its courts were better placed to hear the care case. It stayed the Irish proceedings and invited an application to the courts there to accept jurisdiction. No such decision by the English and Welsh courts had yet been made.
The case arose after J was taken into the Child and Family Agency’s care at birth under section 12 of the Child Care Act 1991. He remained with foster carers. His mother had regular access, and the judgment recorded that she had a positive relationship with the foster parents. The District Court had also heard uncontroverted expert evidence that any new placement should be long term and that an interim placement would harm J’s welfare. His current foster parents could care for him only until the proceedings were resolved.
The mother sought to quash the District Court order, retain jurisdiction in Ireland and, if necessary, refer questions of EU law to the Court of Justice of the European Union. She argued, among other things, that J’s connection to Ireland precluded a connection to England and Wales, and that transferring jurisdiction would require transferring him physically.
The High Court rejected those arguments. It held that a child may have a particular connection to more than one member state and that jurisdiction can be transferred without the child moving. It accepted as rational the District Court’s reliance on the availability in England and Wales of documentary evidence about earlier proceedings concerning J’s older sibling, and on the possibility of compelling the sibling’s father to give evidence there.
The High Court also upheld the District Court’s approach to J’s best interests. That court had concluded that the English and Welsh courts were better placed to hear the case, but that moving J to the United Kingdom at that time was not in his best interests. If those courts accepted jurisdiction, they would decide how the case should proceed, including whether J should remain in Ireland. If they declined, the Irish courts would continue hearing the case under the relevant EU regulation.
Justice Barrett declined to refer questions to the EU court, finding the issues could be answered from the regulation’s text. He concluded that the challenged decision had no legal deficiency or unlawfulness and declined all the reliefs sought. The judgment did not decide the underlying care application or determine J’s eventual placement.