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14 May 2018

Article 15 Brussels IIa: Transfer of Public Law Care Proceedings

3 mins

Amy Rowe recently represented the Child and Family Agency of Ireland in a case where an Article 15 transfer request had been made from the Irish court to the English High Court in the context of public law care proceedings.

The facts of the case involved a 7 month old girl referred to as ‘F’. F was born in late 2017. F was the youngest of two children, and the older sibling was previously the subject of public law care proceedings in England where a care order was made, and the child was subsequently placed for adoption. Whilst pregnant with F, the mother and father travelled to Ireland. The parents admitted to the Guardian in Ireland that they had travelled to escape the ‘clutches’ of the local authority in England.

The Child and Family Agency of Ireland issued care proceedings and an order was subsequently made on 8 January 2018 requesting the courts of England and Wales to accept jurisdiction under Article 15 of BIIa.

On 27 February 2018, Mr Justice MacDonald sitting in the English High Court made an order nisi accepting jurisdiction of this case. The mother and father were given the opportunity to make submissions, if so advised, as to why the transfer should not take place. The parents opposed the transfer primarily on the following bases:

They wished to be assessed to care for F in the long term and did not feel this could happen if proceedings were in the UK;

  • They were settled in Ireland;

  • Contact would be obstructed if proceedings were in the UK, as it would be likely that F was also transferred to the UK.

     Mr Justice Francis did not dispute that the parents were settled in Ireland but found that within care proceedings, there is nothing to preclude the parents being assessed in another country, which is not a rare occurrence. It was being suggested that F would remain in her placement in Ireland where she was well-cared for, but Mr Justice Francis went on to state that in any event if the proceedings were transferred to this jurisdiction, travel arrangements can be facilitated for contact in England if F was transferred to an English placement.

    Mr Justice Francis went on to consider the test in Article 15, which is whether the transfer would be in the best interests of F. The Irish courts had already determined that any transfer would not be detrimental to F and Mr Justice Francis felt satisfied that making a final order accepting jurisdiction was in F’s best interests.

    The complete judgment can be accessed here.

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