The High Court of Northern Ireland has rejected an application to transfer child welfare proceedings to Northern Ireland, stating that it is not in a better position than courts in the Republic of Ireland to assess the best interests of young children and that children are It has been determined that the person resides in Northern Ireland. Republic of Ireland.
About this matter:
- Quote:
[2023] NIFam25
- judgement:
- court:
NI High Court
- judge:
Judge David McFarland
Delivering his judgment in the High Court, Mr Justice David McFarland said: The Northern Ireland courts would be well placed to assess KG’s best interests. ”
background
Baby girl KG was born in the UK in October 2022 to unmarried parents who are members of the Irish travel community.
The child had lived with his mother in various locations, including Northern Ireland, which the mother considered home. On 17 July 2023, the Children and Families Agency contacted Gardaí and a home visit was carried out in Coros Common. On this day, an Irish court issued an emergency protection order seeking the protection of the child.
The child’s parents then left the Republic of Ireland that same day and traveled with her to Northern Ireland, where police located the family. Taking into account the conditions of the home and the condition of the child, police took custody of the child under a protection order and subsequently handed him over to the Health and Social Care Trust. The Trust handed the child over to the Agency for Children and Families on 21 July 2023, where she was placed with her foster parents and an interim care order was granted on 25 July 2023.
The child’s mother has brought legal action in Northern Ireland seeking a judicial review of the trust’s decision to remove the child from its jurisdiction and place her in the Department of Children and Families. The application for judicial review was refused as the trust admitted it had unlawfully removed the child.
On 9 November 2023, the child’s mother issued an application seeking an order transferring the proceedings to Northern Ireland under Article 8 of the 1996 Hague Convention on Parental Responsibility and Protection of Children.
high court
Mr Justice McFarland considered the provisions of the Hague Convention and pointed to the exception in Article 8 which allows the country of the child’s habitual residence to: especially Request that another State with substantial ties to the child assume jurisdiction in the best interests of the child. The court also considered a derogation from Article 9, which provides for similar requirements for “other” States. especially Authorizes the state of habitual residence to have jurisdiction.
The court heard that the Roscommon District Court held a full hearing on 14 December 2023, where it was held that the child was habitually resident in the Republic of Ireland and that there were no exceptions based on the best interests of the child. He explained that it had been dismissed.
Recognizing that determining “habitual residence” is a “fact-finding exercise based on the child’s best interests,” the judge considered the following: “By operation of the provisions of the Hague Convention and by the general application of res judicata, this court is bound.” The fact-finding decision of Roscommon District Court found that KG was habitually resident in the Republic of Ireland and that the courts of that country were presiding over it. It was ruled that it had jurisdiction. ”
Accepting that the Roscommon District Court’s decision that section 8 could not be invoked was not the result of a fact-finding investigation, Mr. Justice McFarland said that he was precluded from considering the issue or reaching a different conclusion by applying section 9. I thought not.
The court noted that the Republic of Ireland exercised primary jurisdiction by making an emergency protection order on 17 July 2023, and that when the child was removed from the custody of the father and placed in the care of the trust, the trust He explained in detail that he had no jurisdiction as a guardian. The child was resident in the Republic of Ireland.
The judge ruled that although the child’s parents were living in Northern Ireland at the time of the hearing, “the presence of parents and other family members outside the jurisdiction would prevent Tusla from carrying out its functions directly.” I hadn’t thought about it.” or indirectly using the services of the Trust. ”
The court recognized that the assumption of jurisdiction by the state in which the child is not habitually resident was a deprivation of rights, and found that “there is no convincing evidence that the trust and the Northern Ireland courts are better placed to assess this. “There is no evidence presented.” KG’s maximum benefit. CJEU in Agency for Children and Families v. D. [2017] 2 In considering similar provisions in the Brussels IIA Framework, WLR 949 states that the transfer must have a real and tangible added value with respect to decision-making. ”
Focus on it red [2021] In the 1970 EWHC, Judge McFarland wrote that the decision to refrain from requesting Swiss authorities in this case was “clear evidence that the Swiss legal framework allows for the application of the principle of mutual trust between the contracting parties.” I thought the decision was made based on. To solve problems within the case that may arise and practical difficulties that may arise. ”
The court stressed that “while the practical difficulties associated with the KG case are not insurmountable, mutual respect and the Republic of Ireland’s ability to address the issues are clearly relevant to this case.”
conclusion
The court therefore dismissed the application on the basis that the child was not habitually resident in Northern Ireland and the High Court of Northern Ireland was not in a better position than the courts of the Republic of Ireland to assess the best interests of the child. did.
Mother v. Medical and Social Welfare Trust and Anole [2023] NIFam25
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