SUPREME COURT
24/15
Denham C.J.
O’Donnell J.
MacMenamin J.
Dunne J.
Charleton J.
O’Malley J.
IN THE MATTER OF KJ A MINOR BORN ON THE 5TH OF MARCH 2008,
AND IN THE MATTER OF THE CHILDCARE ACT 1991 (AS AMENDED),
AND IN THE MATTER OF COUNCIL REGULATION (E.C.) NO. 2201/2003 OF THE 27TH OF NOVEMBER 2003, CONCERNING JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF JUDGMENTS IN MATRIMONIAL MATTERS AND MATTERS OF PARENTAL RESPONSIBILITY IN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURT
The Child and Family Agency
Plaintiff
AND
CJ and CS
Defendants
Judgment of O’Donnell J. delivered the 28th of July, 2016
1 Transnational proceedings in respect of children and particularly those involving aspects of public law childcare, raise many difficult issues. They are also nearly always conducted in circumstances of urgency, emotion and in the absence of comprehensive information. Even sympathetic and well intentioned decision making is no guarantee of a good outcome. However informal the proceedings and however practical and sensitive the approach taken, any legal proceedings must still take place within a structure created by legal rules. This case illustrates the importance of a clear understanding of the applicable law. It is also a case, where regrettably, urgency trumped accuracy, and instead of clarity the proceedings have brought confusion and worse.
2 The relevant facts are set out in the comprehensive judgment of the Court of Appeal (Finlay Geoghegan J.: Peart and Mahon J.J. concurring) of the 29th of April 2015. The first named respondent in these proceedings, CJ, is the mother of K, a child born in Scotland in 2008. The father of K, is the second named defendant, who has taken no part in these proceedings. Paragraphs 4-12 of the judgment of the Court of Appeal recount the facts essential to an understanding of the legal issues in this case:
“4. K was born in Scotland and has lived with his mother in Scotland for the greater part of his life. In particular, since 2011, he has lived with his mother at an address specified in the grounding application in Dundee. His parents separated prior to his birth, whilst his father lives in Dundee he has had little involvement in his upbringing. The guardian reports that she spoke with the father, who does not appear to have parental responsibility for K, but did wish him to return to Scotland.
5. Social Services in Scotland recorded childcare concerns regarding the mother and K since the time of his birth. The mother had a history of involvement with the Mental Health Services in Scotland. It appears, however, that in 2009, the case was closed to Social Services in Dundee. However, in December 2013, it was decided that the case should be allocated to a social worker which was done on 17th January 2014.
6. In the meantime, in April/May 2013, K was diagnosed with an autistic spectrum disorder. He was reviewed at a meeting held by the NHS in April 2013, by a consultant paediatrician and others at which the mother and her adoptive parents were present. A plan was formed for K which involved a review after he had started school.
7. K commenced school in the autumn of 2013. Unfortunately, the mother was involved in an incident, as she perceived it, in protection of K, as a result of which she was charged in October 2013 with assault on a child at the primary school, to which she pleaded guilty in January 2014. In the meantime, the mother had removed K from his first school; he started at a second school, was again removed, and in February 2014, started at a third primary school. The mother indicated a wish to home school K. There were also other concerns about the mother, in particular, her association with certain men prior to January 2014.
8. In March 2014, as the result of a child protection case conference on 25th March, 2014, K’s name was placed upon Dundee City Council’s Child Protection Register. Throughout the summer of 2014, there were relevant meetings held in respect of case conferences and what is termed a “core group” in relation to K.
9. K returned to school in the autumn of 2014. The mother, in October 2013, raised issues about K being bullied at school. On 10th October, school ended for the October holiday, during part of which a report exhibited in the High Court indicates K went on a caravan holiday with his maternal grandparents and then returned to Dundee. The Scottish social worker is recorded as visiting the mother and K at their home on 24th October 2014. This appears to be the visit during which an envelope was handed to the mother containing papers for a Children’s Hearing on 12th November 2014, referred to below. K did not go back to school on its resumption on 27th October 2014. There appears to have been a GP Certificate furnished to the school. On 29th October 2014, there was a “team around the child” meeting at K’s school. The mother did not attend the meeting. On 31st October 2014, the mother and K were reported as missing persons to the police in Scotland. On 2nd November 2014, the mother and K were traced to London (through her car registration) and spoken to by the English police on 2nd November 2014. On 3rd November, the mother made contact with and spoke by phone with Dundee Social Services and is reported as indicating that she was intending to travel to Holland.
10. The mother and K subsequently travelled to Ireland. It appears from the grounding affidavit that it has subsequently been ascertained that they stayed in a Dublin hotel on 8th November 2014, and that she arranged that her car was subsequently delivered to Ireland.
11. In the meantime, in Scotland, a report was made to the Scottish Children’s Reporter Administration and a Children’s Hearing took place on 12th November 2014. The mother (CJ) was not present and there is a dispute as to the extent of her knowledge of the hearing. On that day, an interim Compulsory Supervision order was made by the Children’s Hearing in the following terms:-
“1. The child is required to reside at any place of safety away from the place where he/she predominantly resides.
2. The Children’s Hearing orders that the place/places where the child is required to reside in accordance with this Order shall not be disclosed, whether directly or indirectly to his mother, [CJ].
3. Contact between [K] and his mother, [CJ] shall be arranged and supervised by the social work department.
4. [K] shall receive all necessary medical treatment and examinations.
The implementation authority is recorded as Dundee City Council and that the order would have effect until 03.12.2014.”
12. Pursuant to Interpol communications, the mother and K were located in Dublin on about 14th November 2014, and on 17th November 2014, K was removed from the care of the mother by the gardaí under s. 12(1) of the Child Care Act 1991. On that day, he was placed in the care of the CFA under s. 12(3) of the Child Care Act 1991.”
The next stage was then for court proceedings to be initiated.
Court Proceedings in Ireland
3 On the 18th of November 2014, the Child and Family Agency (“the CFA”) applied for and was granted an Emergency Care Order by the District Court. No issue arises now in relation to that order. K was placed in the care of the CFA under s.13 of the Childcare Act 1991 until the 25th of November 2014, and placed in foster care by the CFA. He had access with his mother. On the 26th of November 2014 the CFA sought and was granted an Interim Care Order in the District Court in respect of K following a hearing at which the mother opposed the order sought. In the course of the District Court hearings, it appears that the District Justice, quite properly, raised questions as to the extent of jurisdiction having regard to Council Regulation (E.C.) No. 2201/2003 of the 27th of November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“Regulation 2201/2003”).
The High Court Proceedings
4 On the 25th of November 2014, the CFA issued a plenary summons and a notice of motion seeking relief in substantially the same terms as the plenary summons. Liberty was given by the High Court on the same day to issue and serve the notice of motion returnable for the 27th of November 2014. There was a hearing in the High Court on the 9th of December 2014 at which submissions were made on behalf of the CFA, the mother (CJ) and a guardian who it appears had been appointed in the course of District Court proceedings on either the 4th or 5th of December 2014. The reliefs sought by the CFA in its notice of motion were in essence:
(i) A declaration that K is and at all material times, was habitually resident in Scotland.
(ii) A declaration pursuant to Article 17 of the Regulation that the Courts of Ireland have no jurisdiction under the Regulation in respect of matters concerning parental responsibility for K.
(iii) An order pursuant to the inherent jurisdiction of the High Court and/or Article 20 of the Regulation permitting the CFA to remove K from his current placement in Ireland and place him into the care of Dundee City Council’s child services in Scotland.
(iv) Ancillary orders providing for all necessary and incidental directions to facilitate the transfer of K from Ireland to Scotland.
(v) In the alternative orders and declarations pursuant to Article 15 of the Regulation directing the Court to transfer this matter to the Courts of Scotland and additional reliefs to facilitate the transfer of K to Scottish social services.
5 On the 11th of December 2014 and with commendable speed, judgment was delivered in the High Court. The Court referred to previous decisions of the High Court in respect of application under Article 11 of the Regulation in the context of seeking the return of a child wrongfully removed from the jurisdiction. In such cases the High Court is the appropriate jurisdiction and that the judge in the High Court takes an additional role in respect of the operation of the Regulation regarding child abduction cases. The Court also referred to the existence of the Scottish proceedings and the potential applicability of Article 3 of the Hague Convention to these proceedings, in the context of wrongful removal of a child. The Court also referred to the position in England and Wales where all proceedings under the Regulation had been assigned to the Family Division of the High Court under the Supreme Court Act 1981. Furthermore the Irish High Court was the court responsible for all applications for recognition or enforcement under the Regulation.
6 It appears the CFA also submitted that the District Court was a court of local and limited jurisdiction. The High Court concluded that it had jurisdiction to entertain the claim and made a declaration under Article 17 that the Courts of Ireland had no jurisdiction under the Regulation in respect of matters concerning parental responsibility for the child the subject matter of proceedings and directed that the child should be returned to Scotland. The Court concluded:
“This Court holds that the High Court is the appropriate forum to discharge the functions under the Regulation. The District Court does not have any power to make declarations under the Regulation. The District Court does not have power to conduct any enquiries as to which Member State has/does not have jurisdiction in matters of parental responsibility under the Regulation, nor does it have power to make requests of courts in other Member States under article 15 of the Regulation.”
7 Finally, it appears from the order of the High Court of the 11th of December, that the mother applied for a stay on the order and on hearing the mother and counsel for the CFA the Court refused a stay. Accordingly the child was returned to Scotland.
The Proceedings in the Court of Appeal
8 The mother appealed to the Court of Appeal. A guardian ad litem had been appointed in the context of the District Court proceedings and appeared through a solicitor and counsel. The CFA opposed the appeal in full. The guardian also opposed the appeal but made submissions against one part of the High Court judgment.
9 The Court of Appeal pointed out that the High Court had dealt with the motion as if it involved the making of final rather than interlocutory orders; although there was no formal consent by the parties treating the motion as the hearing of the action. In relation to the substance of the proceedings, the Court concluded that the High Court had been correct to find that the habitual residence of K was in Scotland. However, while sympathising with the apparent desire to have a streamlined system and a single court in the position to deal with all issues that might arise in respect of the Regulation, the Court of Appeal concluded that the High Court had been wrong to declare that the District Court did not have jurisdiction under Article 17 to declare that it had no jurisdiction as to the subject matter in the case. The Court of Appeal also addressed the subsidiary question as to whether the High Court itself had jurisdiction to make a more limited declaration that it did not have jurisdiction under Article 17. It held, that since an application had been made for an order returning the child to Scotland, that that was an order in relation to parental responsibility, over which the High Court did not in fact have jurisdiction (because the Court of Appeal held, that any such jurisdiction, which was doubted, was limited to circumstances where the return of the child was sought by order of a court having jurisdiction as to substance). In relation to that latter order, the Court addressed the submission that the High Court had jurisdiction to make an order under Article 20 of the Regulation. Reliance had been placed on my decision in this Court (McKechnie and Laffoy J.J. concurring) in CFA v RD [2014] IESC 47. The Court of Appeal observed that the Court in CFA v RD had not referred to the decisions of the Court of Justice as to the limits of the jurisdiction under Article 20 as discussed in Case C-523/07A [2009] ECR I-0000, Case C-403/09PPU (23rd December 2009), Deticek v Sgueglia and Case C-256/09 Purrucker v Valles Perez (15th July 2010). In any event the Court of Appeal pointed out that this Court in CFA v RD had proceeded upon the basis that the return of the child had been explicitly sought both by the English local authority having custody, and by express order for return made by the English High Court. Thus, the order for return in CFA v RD could be characterised as ancillary to the order of the English High Court being the court which had jurisdiction as to subject matter. That however was not the case here. The Court held that Article 20 did not permit the High Court in this case to make an order for the transfer of the child to the Scottish local authority. At paragraph 68 it stated:
“The position was factually fundamentally different to that pertaining before the Supreme Court in CFA v. R .D. In accordance with that judgment, it follows from the jurisdictional decisions that it was a matter for the courts of Scotland to determine whether or not K should be returned to Scotland in the short or longer term. In the absence of an order of the Children’s Hearing or any other relevant Scottish court, requiring the return of K to Scotland which may be recognised by an Irish court under the Regulation, it does not appear to me that the High Court had jurisdiction pursuant to Article 20 (and possibly Article 21) of the Regulation to make the orders permitting the transfer of K by the CFA to Scotland and into the care of Dundee City Council Children’s Services. It must be recalled on the facts of this case that K, prior to leaving Scotland, had not been in the care of the Dundee City Council Children’s Services. Further, the mother was contending that she lawfully moved to Ireland and she wished to remain in Ireland with K. In such circumstances, as K remained habitually resident in Scotland in accordance with the division of jurisdiction between Ireland and Scotland under the Regulation in relation to parental responsibility for K, it was the courts of Scotland which had to determine whether or not it was in the best interests or welfare of K that he should be removed from his foster care in Ireland transferred to the care of Dundee City Council Children’s Services and back to live in Scotland. The High Court did not have jurisdiction to make that decision and [the] order made.”
10 The Court of Appeal judgment also pointed out that one option available would have been to adjourn the proceedings and request CFA to arrange for an application to be made to the children’s hearing or other court in Scotland to decide whether it required K to be returned to Scotland. Any order made could then have been sought to be recognised by the High Court pursuant to Article 21 of the Regulation. The Court also concluded that the inherent jurisdiction of the High Court could not be relied on to make an order of return since recourse could only be had to the inherent jurisdiction of the High Court, if the court had jurisdiction as to the relevant subject matter. These conclusions led the court to vacate the order permitting the CFA to remove K from his current placement and to place him in the care of Dundee City Council Services. However, the court then faced the difficulty that that order, had been executed. The court addressed this issue at paragraph 74 of its judgment:
“However the factual position at the time of the hearing of this appeal is that K is back in Scotland in the care of Dundee City Council Children’s Services. This judgment also concludes that the High Court was correct in deciding that the habitual residence of K is in Scotland and that the courts of Scotland, and not of Ireland, have jurisdiction to hear all actions in relation to parental responsibility relating to K. Any order which this Court might now make which would seek to reverse the transfer of K which took place pursuant to the now vacated part of the High [Court] Order would involve a decision in relation to parental responsibility of K. This Court as a court of Ireland has no jurisdiction under the Regulation to make such a decision in relation to K. Only the courts of Scotland may take such decisions.”
11 It remained open to the mother to apply to the Scottish Courts for the direction that she be permitted to bring K to live in Ireland. It was also pointed out that Article 56 of the Regulation contains a procedure in relation to the placement of a child in institution care with a foster family in another Member State. Accordingly, the Court of Appeal directed the CFA to make a copy of the judgment available to the Dundee City Council Children’s Services and to request that body to bring the judgment to the attention of any future hearing of the Children’s Hearing or any other relevant court.
Appeal to this Court
12 The CFA has appealed this decision to this Court. The guardian ad litem supported the decision of the Court of Appeal subject to a contention that it considered that the principle expressed at paragraph 68 of the judgment had been expressed too narrowly. That paragraph, set out above, stated that jurisdiction under Article 20 to make an order of return was limited to circumstances in which an order had been made by the court of habitual residence requiring such a return. CJ, sought to agitate again the matters she had asserted in the High Court and Court of Appeal, and contended that the Court of Appeal ought to have ordered the return of her son to live in Ireland.
13 It is clear that these proceedings have reached an unhappy point. If this Court of Appeal judgment is correct then orders were made erroneously in the High Court, and moreover, since a stay was refused, the courts of this jurisdiction are not in a position to correct an identified error. Furthermore, the issues raised by the CFA are very far-reaching indeed, and both the High Court judgment and the Court of Appeal judgments reached significant (if opposed) conclusions as to the manner in which transnational issues may be dealt with under the Regulation in the Courts of Ireland. Accordingly, the resolution of this matter will have significant implications for all proceedings involving children where the Regulation is a live issue. It is highly desirable that this matter is resolved and clear guidance given, but it is less than satisfactory that the party who has the most obvious interest in opposing the CFA’s contention was not legally represented, although such representation was available.
14 I propose to state my conclusions as shortly as possible. First however it is necessary to say that I consider that the issuance of proceedings and application to the High Court were quite misconceived. I sympathise with the desire to have a single forum in which issues of the Regulation can be addressed. It is somewhat ironic that one of the advantages argued for of bringing such proceedings in the High Court, notwithstanding their costs, is the degree of legal expertise that are brought to bear on the proceedings. In the event, these proceedings have resulted in an unnecessary and avoidable legal tangle. More disturbing still is the fact that proceedings were brought by the CFA with the object of removing the child from the jurisdiction and sending him to another jurisdiction when that outcome had not been sought either by the body in to whose custody it was proposed to place the child, or the court which was found to be the only court that had jurisdiction to determine whether that was a desirable step. The outcome is that a very significant order has been made removing a child from the placement in this jurisdiction and under the jurisdiction of the Court, and from the degree of contact with the mother which was permitted in Ireland, and indeed from the jurisdiction of the courts of Ireland, without any court considering if that was in the best interest of the child. This would be a serious matter in any case, but it is particularly so here. It is apparent that relations between the mother and the social services in Dundee are poor. But one useful piece of evidence from an independent source is the report carried out and supplied to the court by the guardian ad Litem. That report recorded the guardian ad Litem’s opinion as follows:
“It is apparent that [CJ] and [K] have a loving, close relationship. They both report wanting and needing to be together. They both report a desire to remain in Ireland. [CJ] presents as having a genuine and sincere concern for her son’s wellbeing. When I observed them together it was apparent that they enjoy each others company and were affectionate with each other. Neither wanted to leave at the end of the access session.”
The fact is that the order made in the High Court returned this child to a placement in Scotland, pursuant to an order that the place where the child was required to reside would not be disclosed directly or indirectly to his mother and that contact between K and his mother would be arranged and supervised by the social work department.
16 It is also disturbing that the CFA resisted an application for the stay in the High Court with a consequence that an irreversible order was made an order moreover which the Court of Appeal, and, for reasons which I will address, this Court, considers to have been wrongly made. Behind all this is the fact that the CFA’s actions were directed towards the summary return of the child to removing it from this jurisdiction. In that regard, one of the most eloquent features of the case if the brevity of the affidavit of the Scottish social worker which was submitted in these proceedings. It runs to four paragraphs the first three of which are formal, and the fourth which provides:
“I have read the affidavit of [SG] sworn on the 25th of November 2014 and insofar as it contains a statement of facts, inference of facts, documents or information provided by the social services in Scotland, I believe the same to be true.”
17 The affidavit of the Irish social worker set out a considerable detail of the background of the relationship between CJ and her son, including some broadly stated and lurid assertions which were not later sustained. However, insofar as the future care of the child was concerned, the relevant portion of the affidavit was brief:
“Conclusion
53 I say it is in the view of the plaintiff on the basis of its limited interaction with K and his mother that it is in K’s best interest that he is returned to Scotland with a minimum of delay.
54 I say and believe that K has no connection with Ireland save for his presence in this jurisdiction.
55 I say and believe that it is in K’s best welfare interest that his case is dealt with by the court system in relation to children in Scotland.
56 I say and believe that the local authority and the care and clinical professionals who have been working with K’s family over a period of years and particularly extensively since in or around March, 2014, are better placed than the Irish authorities to assemble and to give evidence in any care proceedings surrounding K’s future care status. In as much as it may be necessary to call evidence in any future care hearing, I say and believe that the courts in Scotland, Great Britain, would be better placed than those in Ireland to hear that evidence.”
18 It is apparent therefore that in this case the CFA sought and obtained an order for the return of K to Dundee Social Services and under the supervision of the Scottish Courts, although Dundee Social Services had not sought the return, not had it been ordered by the Courts of Scotland. The proceedings were in effect being treated akin to an application under the Hague Convention with the significant qualification that it had not been determined that there had been unlawful removal, and the person or body having custody did not seek return. On this approach the determination of habitual residence leads, without more to an order for return. The result is the return of a child to a country where no body or institution has sought custody of the child, and where no court has determined that it is in its best interest that the child should return, and without the voice of the child being heard. This is an outcome which is not compatible with the careful allocation of jurisdiction under the regulation.
The Question of Interpretation
19 In approaching Council Regulation (E.C.) No. 2201/2003 it is I think useful to keep in mind that the essence of the Regulation in its field of application (Matrimonial Matters and Matters of Parental Responsibility) is the allocation of jurisdiction between Member States, and providing for the recognition and enforcement of judgments in such matters. In that respect it is comparable with Regulation 44/2001 on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (now recast as Regulation 44/2012) and can usefully be compared with that code. The essential function of each regulation is to identify the basis upon which jurisdiction may be established in respect of persons or institutions resident in Member States, and to provide for the examination of jurisdiction by the Courts of Member States where appropriate, and for easy enforcement of judgments and orders made by courts with jurisdiction, in the courts of the other Member States. The respective Regulations also make provision for the capacity of courts to make provisional including protective measures even though they do not have jurisdiction as to substance. There are undoubtedly difficult issues which can arise in all of these respects, but the basis structure is clear and requires cooperation and trust between the courts of Member States. It follows that Regulation 2201/2003 is concerned with much more than childcare proceedings of the type initiated here. The Regulation deals with matters of parental care in general and also matrimonial matters. The provisions of the Regulation such as Articles 17 and 20 must have the same interpretation in each situation. Regulation 2201/2003 also incorporates provisions of the 1980 Hague Convention on the return of children removed from one country to another in breach of a right of custody. That Convention, and accordingly Articles 10 and 11 of the Regulation, provide in general, for speedy return of a child wrongfully removed. The shadow of the Hague Convention proceedings and Articles 10 and 11 seems to have fallen over these proceedings and influenced them to some extent. It is important to note however, that Articles 10 and 11 were not invoked here, and could not have been invoked in these proceedings. Article 11 requires that “the person, institution or other body having rights of custody” should apply to the courts of the other Member State for an order for return. No such application was made here, and accordingly the provisions of Article 11 and the 1980 Hague Convention are of no relevance to the issues which arise in these proceedings. The question here was solely as to jurisdiction of the District Court, and subsequently the High Court, to make the orders sought in the proceedings before the respective courts, and if so, the appropriateness or correctness of any such order.
20 I agree with the High Court and the Court of Appeal that the habitual residence of the child here was, at the relevant time, in Scotland. It followed therefore that the courts of Scotland had jurisdiction in respect of matters of parental responsibility (Article 8). It also followed therefore that the only jurisdiction which the Irish Courts could have, was that under Article 20, namely in urgent cases (which this case was) to make provisional including protective measures.
21 I also agree with the judgment of the Court of Appeal that the High Court was in error insomuch as it decided that the District Court could not carry out the exercise contemplated and declaration envisaged by Article 17. The suggestion that the District Court was disabled from so doing (and the corresponding suggestion that the High Court was the sole court which had jurisdiction) seems to have followed from a view of the status of the District Court as a court of local and limited jurisdiction, and the fact that the District Court has no equity jurisdiction. If so, this reasoning was quite misconceived. There is nothing formal or equitable in proceedings under Article 17: all that is required is that a court of a Member State which is seized of a matter concerning parental responsibility (or in an appropriate case a matrimonial matter) should make an examination as to jurisdiction, and where it concludes that it does not have jurisdiction as to substance because the habitual residence is in another contracting State, it must not seek to exercise such jurisdiction, but should instead state clearly that it has no such jurisdiction. There is no magic to the particular formula used: what is important is that having concluded that another Member State has jurisdiction as to substance, the court should not then exercise any jurisdiction as to substance, and should then only consider whether it should make any order under Article 20, within the limits of that Article, and in the knowledge that the jurisdiction as to substance is or may be exercised by the courts of another Member State.
22 I do not think it is necessary to finally resolve the question whether the High Court had jurisdiction to make a declaration that the District Court did not have jurisdiction as to substance. The essential purpose of these proceedings was almost the reverse: to seek a determination from the High Court that the District Court could not carry out an examination as to substance or make any determination under Article 17. I observe that it is only the court seized which must examine jurisdiction if necessary of its own motion, and declare “of its own motion that it has no jurisdiction”. I do not however consider it necessary to make any final determination on the scope of the High Courts jurisdiction as that does not really arise for determination in this case.
23 The Court of Appeal concluded that the High Court had jurisdiction to make what must be considered to be its own Article 17 declaration, since technically, it was seized of an issue of parental responsibility, namely the application for return of the child pursuant to Article 20 (which in the event the court considered the High Court did not have jurisdiction to order). This analysis is perhaps unnecessarily complex. The application under Article 20 is necessarily predicated upon the absence of jurisdictions to substance. There could be no purpose therefore in making the declaration under Article 17. Insomuch as an order was properly within Article 20, then it could not fall within Article 17. Article 20 arises only when the court does not (or may not) have jurisdiction as to the substance of the matter. Article 20 provides that a court may make provisional including protective measures in respect of persons or assets in that State “even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter”. Equally, if a court is properly seized of jurisdiction under Article 20 that is to make a provisional or including protective measure in respect of a person or asset within its jurisdiction, then it “is seized of a case over which it has jurisdiction under the Regulation,” and accordingly could not make a declaration that it had no jurisdiction - albeit that the jurisdiction it has is limited to Article 20. I do not think anything in this regard is added, other than another layer of confusion, by reference to the inherent jurisdiction of the court.
24 I unreservedly agree with the Court of Appeal that Article 20 did not permit the order made in this case directing the return of the child to the care of Dundee Social Services at the very least without any order from a Scottish court directing such return and in respect of which any order of the Irish Court would be ancillary provisional and therefore protective. I also agree for the reasons addressed in the Court of Appeal that nothing in my judgment in CFA v RD [2014] IESC 47 could, or should, be taken as suggesting, still less establishing, that an Irish Court has jurisdiction under Article 20 to make a free standing order for the return of a child to Scotland when that return has not been sought by a body having custody, and ordered by a court having jurisdiction as to substance of claims in respect of parental responsibility. That judgment was delivered at short notice in order facilitate an application to an English court. The issue of whether there was jurisdiction under Article 20 to make a free standing order for a return was simply not addressed in argument or in the judgment. Furthermore, it could not have arisen in that case, since the entire basis of the application was that an English court had made an order for the return. The issue before the court was whether given the evidence and submissions which seem to have been advanced by all parties, that the English court might consider varying that order.
What ought to have happened?
25 The legal importance of this case is to provide guidance for future cases. It may be useful therefore to set out my views on what ought to have occurred in the District Court, if the law and procedure had been properly applied. In this case an application was made to the District Court for an interim care order. Technically, the District Court had an obligation then to make an examination as to jurisdiction under Article 17. That would have readily established that the child was at that time habitually resident in Scotland, and therefore that the courts of Scotland had jurisdiction as to substance. It also follows that the jurisdiction of the District Court was limited to Article 20, at least at that time. The next step would be to make an order securing the child’s position and to await any order from the Scottish Court. A number of possibilities arose. A party claiming they had a right to custody might have made an application to the Irish High Court for an order of return under Articles 10 and 11 of the Regulation. Another possibility was that an application would be made in the Scottish Courts and directions given as to the future care of the child, which may have involved an order requiring the return of the child to Scotland. Depending on the circumstances however, the Scottish Court might also have considered making an order under Article 15 allowing jurisdiction to be transferred to a court better placed. Finally, if nothing was done it was possible that habitual residence might change to Ireland, in which case the Irish Court would have jurisdiction as to substance. All of this was well within the competence, and jurisdiction of the District Court to deal with.
26 I do not think it is necessary to address the question of whether if an order for return was made by a Scottish Court, having jurisdiction, the District Court could make an order for return under Article 20. This turns not on the scope of Article 20, but rather on the power of the District Court. But that situation has not arisen. In any event it is not obvious that a formal order for a return by a Irish Court would always be necessary: in some cases it may be sufficient for the District Court simply to lift its care order and permit if necessary the release of a child in Ireland into the custody of a person authorised by a Scottish Court to bring the child back to Scotland. Furthermore, Article 21 permits the enforcement of orders of courts of other Member States.
27 Nor do I consider it necessary, or indeed necessarily wise, to seek to resolve the theoretical argument advanced in this Court, as to the limits of any order which might be made by any court under Article 20, and in particular whether the only possible order for return of a child that could be made under Article 20 (by an Irish Court having power to do so) would be one which in effect mirrored a corresponding order of the court having jurisdiction as to substance, in this case the Courts of Scotland. Once the essential issues as to jurisdiction have been established i.e. the court then having jurisdiction as to substance, and if so, the fact that a court acts here if at all under Article 20, the court should approach its task with a high degree of sensitivity as to the facts of the particular case. It is unwise in my view to seek to lay down bright line rules about factual situations which have yet arisen. There is I think wisdom however in the observations of Lady Hale in the United Kingdom Supreme Court case of In re J [2015] UKSC 70 at paragraph 39 of her judgment :
“However as Lord Wilson pointed out in the course of argument, the courts of the country where the child is are often better placed to make orders about the child’s return. Those courts can take steps to locate the child, as proved necessary in this case, and are likely to be better placed to discover the child’s current circumstances. Those courts can exert their coercive powers directly upon the parent who is here and indeed if necessary upon the child. The machinery of going back to the home country to get orders and then enforcing them in the presence country may be cumbersome and slow. Getting information from the home country may also be difficult. The child’s interest may indeed be compromised if the country where the child is present is not able to take effective action in support of the child’s return to the country of his or her habitual residence.”
None of this could however go so far as to permit the order sought in this case.
28 The end result is that I agree entirely with the judgment of the Court of Appeal that the order made for return was wrong, and should be set aside. I also consider that the CFA ought not to have resisted the stay application made by an unrepresented party, the result of which was to seriously compound the difficulty in this case. The issue however remains what may now be done in that regard. I agree with the Court of Appeal that it would be quite wrong at this stage to take further steps to reverse the effect of the High Court order. It must be remembered that the single fixed point in all the confusion in this case was that the habitual residence of the child at all material times was in Scotland, and accordingly, that it was to the Courts of Scotland who had jurisdiction as to substance, and should therefore consider the issue in respect of parental responsibility, and make decisions as to the best interests of the child. The order made (and not stayed) had the effect of returning the child to Scotland after the High Court hearing, but whether the child is in Scotland or in Ireland, the Courts of Scotland necessarily had jurisdiction to determine where the child should be and how he should be cared for. That jurisdiction is now being exercised. It would therefore be an exercise in futility, and worse, to require the CFA to seek the return of the child when the Courts of Scotland would still have the function, and the obligation of determining how, where and by whom, such care should be provided. Accordingly, and notwithstanding my serious reservations about the steps taken in this case, I do not consider it would be appropriate to do more than dismiss the CFA’s appeal, and affirm the order of the Court of Appeal. The issues debated in this case have concerned jurisdiction and procedure rather than the question of the care and best interests of K. Perhaps the only positive feature to emerge has been that the proceedings, while procedural in nature, have resulted in an insightful report from the guardian ad Litem on the relationship between K and his mother. I would accordingly make a direction similar to that contained at paragraph 75 of the judgment of Finlay Geoghegan J. in the Court of Appeal that the CFA make a copy of the approved judgment available to Dundee City Council Children’s Services in order that it should be brought to the attention of any future hearing in relation to K.
