Northern Ireland

Abstract

Limitations regarding the ‘welfare interests of the child’ test

In the matter of TH (A male child aged one year and nine months)

The High Court, McFarland J

Delivered 2 November 2021

Introduction

TH was born in England in January 2020 to unmarried parents, both of whom were citizens of an EU country (‘EUC’). The mother had been resident in England and had been known to social services and police with issues concerning abuse of alcohol and her mental health. Her two older children, aged 14 and 11 (step-siblings of TH), had been the subject of English child protection plans but were removed by the mother back to EUC (without advising social services) where they currently live with their maternal grandmother.

TH, then a four-week-old baby, was brought by his mother to Northern Ireland to join the father but he was arrested on the day of their arrival and subsequently convicted and imprisoned. The mother was unable to cope and the police and Trust intervened primarily on the basis of alleged neglect of the child. A police protection order was granted in March 2020, followed by an emergency protection order and an interim care order in June 2020, from which time TH had resided with foster carers.

The whereabouts of both parents had been difficult to verify. Independent evidence indicated that the mother had been arrested in the Republic of Ireland in 2020, then returned to Northern Ireland but left in January 2021. She was then arrested in Scotland in April 2021 and detained pending deportation. The father was in custody in the Republic of Ireland in the summer of 2020 and was deported to EUC in May 2021. It is understood, based on their own self-reporting, that both are now living in another EU country.

The maternal grandmother continued to live in EUC caring for TH’s step-siblings. As part of the Trust’s care planning, contact was made with the Central Authority of EUC. It carried out a capacity assessment of the grandmother and reported that she is ‘ready to be a carer for her grandson … [and] is able and has the possibility to take care of the child’. The Trust carried out its own assessment in June 2021, which was less supportive of the grandmother’s parenting ability. Current care planning was focused on keeping TH in Northern Ireland in an adoptive placement, pending a decision from the Best Interests Panel. The Trust was currently applying for a care order.

The parents’ application

The parents had applied for the proceedings to be transferred to EUC and the court established that Council Regulation (EC) No 2201/2003 (‘Brussels IIa’) applied. All parties agreed that TH was habitually resident in Northern Ireland at the time the courts in Northern Ireland became seised [had ownership] of the case. Under Article 8, the courts of Northern Ireland had jurisdiction and under Article 15 such a court may stay the case and either invite the parties to the proceedings to apply to a court in another EU state, or invite a court in that state, to assume jurisdiction. To do this the court must be satisfied that:

The child has a particular connection with that country;

The court in that country would be better placed to hear the case; and

It is in the best interests of the child.

It was agreed by the parties that TH, by virtue of his parents’ nationality, was a national of the EUC and therefore had a particular connection to it.ⁱ McFarland J noted the guidance provided by the CJEU in Child & Family Agency v Pⁱⁱ as to the interpretation of the provisions of Article 15 and referred to Keegan J’s summary in Re Tom,ⁱⁱⁱ of the principles emerging from the CJEU ruling, viz:

Article 15(1) must be interpreted strictly as it is a derogation from the general rule that a court should exercise jurisdiction relating to a child who is habitually resident in that country. To this end, transfer should only occur when the case is exceptional;

There is a strong presumption in favour of the court exercising jurisdiction in the country of the child’s habitual residence;

When making an assessment of whether to transfer the case, a court should be guided by the need to ensure that a transfer would give genuine and specific added value with respect to the decision to be made;

When considering whether the other state is ‘better placed’ to hear the case, a court should not take into account the substantive law of the other state;

When considering the best interest of the child, the court must be satisfied that the transfer will not be detrimental to the situation of the child.

McFarland J stated that the two key issues for determination were whether the court in EUC would be better placed to hear TH’s case and whether transfer was in his best interests. In considering both questions, the court was carrying out separate exercises in light of all the circumstances in the case.^iv The judge added that Baroness Hale in Re N^v had stressed that although the two questions are inter-related they should be dealt with separately and that the ‘best interests’ test applied to the question of the transfer, not to the eventual outcome:^vi

The question is whether the transfer is in the child’s best interests. This is a different question from what eventual outcome to the case will be in the child’s best interests. The focus of the inquiry is different, but it is wrong to call it ‘attenuated’. The factors relevant to deciding the question will vary according to the circumstances. It is impossible to be definitive. But there is no reason at all to exclude the impact upon the child’s welfare, in the short or the longer term, of the transfer itself. What will be its immediate consequences? What impact will it have on the choices available to the court deciding upon the eventual outcome? This is not the same as deciding what outcome will be in the child’s best interests. It is deciding whether it is in the child’s best interests for the court currently seised of the case to retain it or whether it is in the child’s best interests for the case to be transferred to the requested court.

Therefore, he stressed, it is important that the argument in relation to which court has jurisdiction is not based on wider issues and noted that, as Baker J stated in Re IB:^vii

It must be emphasised that this court is not at this stage determining whether I’s future lies in Latvia, but rather whether that question should be determined here or in Latvia. Considerations as to merits of the care systems of the two countries, or indeed of the merits of the placements proposed for the child, are irrelevant matters for the purpose of the questions this court has to determine.

Another way of putting it, as expressed by Black LJ in Re N,^viii is that the decision relates to transferring the problem and not the case:

Article 15 is not a provision which facilitates the transfer of particular proceedings, as such, to another jurisdiction. It cannot be, because other jurisdictions do not share our child protection arrangements. What is transferred is, putting it bluntly, the problem, for which the other jurisdiction will, if the transfer is made, take responsibility, leaving our proceedings either stayed or discontinued.

McFarland J added that Ryder LJ, in Re M,^ix had suggested a number of questions of fact that a court may wish to consider when conducting its evaluation:

It is entirely proper to enquire into questions of fact that might inform the court’s evaluation of whether a court is better placed to hear a case. Without wishing to prescribe an exhaustive list, those facts might include the availability of witnesses of fact, whether assessments can be conducted and if so by whom (i.e. not a comparative analysis of welfare perceptions and principles but, for example, whether an assessor will have to travel to another jurisdiction to undertake an assessment and whether that is a lawful and/or professionally appropriate course), and whether one court’s knowledge of the case provides an advantage, for example by judicial continuity between fact finding and evaluation, and so on.^x

Consideration

As McFarland J explained, the parents claimed that a court in EUC was better placed to hear the case and that this would be in the best interests of TH for a number of reasons:

TH’s maternal grandmother, step-siblings and extended family live in EUC. The parents regard their present sojourn in another country as temporary and have expressed a desire to return to EUC. Decision-making should therefore be made by the courts of EUC.

A kinship placement with the grandmother exists in EUC which has been approved by the EUC authorities after completing a viability assessment of the grandmother.

If transferred, the facility to provide further and updated reports in respect of individuals resident in EUC would be enhanced.

EUC is the country of TH’s nationality and ethnic origin.

Both parents and the grandmother lack fluent English and would have difficulty participating in court proceedings using English.

On the other hand, as he pointed out, the Trust (with the support of the guardian ad litem), countered these arguments by stressing that:

TH is habitually resident in Northern Ireland and has lived here since he was four weeks old. Care proceedings have been ongoing since June 2020 and are nearing their conclusion.

A transfer could well result in delay in a final determination.

TH has never been to EUC. He has grown up with English speakers and his vocabulary, although limited by his age, is based on English. The language of EUC is foreign to him.

There is an element of continuity in relation to social work staff and the guardian ad litem who have been involved for 18 months. Although this will not be lost completely it will be restricted due to geographic and language difficulties should jurisdiction pass to EUC.

Although the maternal grandmother resides in EUC, the parents do not and their commitment to that country is uncertain.

He also noted that the Trust had raised other issues such as the viability of any placement with the maternal grandmother, the lack of other family members and the likely trauma that would flow from any transfer of residence for TH. He did not propose to address such matters as in his view they clearly related to the wider ‘best interests’ test which a court, whether in EUC or in Northern Ireland, would have to apply in due course. He considered that they had ‘only a modest relevance to the “best interests” test relating to the transfer itself ’.

McFarland J stressed that habitual residence was the primary factor when determining the appropriate forum. He did not consider that the courts in EUC would be in a better place to hear the case, nor that it would be in TH’s best interests for them to do so. He explained that all the evidence in relation to threshold would be given by witnesses based in Northern Ireland. Assessment of the parents had not been possible as they were no longer in the UK, but were also not living in EUC. Any such assessment, should it be required, would present difficulties wherever the case was heard. An assessment of the grandmother, a potential kinship carer, had already been conducted both by the EUC authorities and by the Trust. The one, potentially strongest, point raised by the parents was that any further assessment of the grandmother which would assist whichever court is making the decision would benefit from being carried out under the auspices of the EUC courts. In such circumstances, the Trust would then have to show, given its adoption-orientated care plan, that, in the words of Lady Hale in Re B,^xi ‘nothing else will do’ which, as Lord Neuberger had emphasised,^xii would normally include any court being satisfied that there was no practical way of the authorities (or others) providing the requisite assistance and support to the grandmother should that be required. However, the parenting assessment from EUC appeared to indicate that no assistance or support would be necessary, as it was content that the grandmother was capable of looking after TH and, in the words of Keegan J in Re Tom:^xiii

It is not for the courts of this or any country to question the competence, diligence, resources or efficacy of either the child protection services or the courts of another state.

He commented that the issue was therefore unlikely to require any further significant investigation.

McFarland J pointed out that the courts in Northern Ireland had been in control of the Trust’s intervention in TH’s life for some time and, with a final hearing due in early 2022, there was a strong case for judicial continuity being maintained. He noted the many judicial comments about the need for decisions concerning jurisdiction to be made at an earlier stage^xiv but that for a variety of reasons, primarily related to the Covid-19 pandemic, early determination of this issue had not been possible. He added that had this matter fallen to be determined at an earlier stage, his decision might have been different.

For McFarland J ‘the critical factor is delay’. Transferring jurisdiction now would almost certainly necessitate delay in determining TH’s future. Article 3(2) of the Children (NI) Order specifically refers to the need for a court to consider delay as being not in any child’s interests:

In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

It was abundantly clear to him that any decision to transfer jurisdiction would necessitate delay. While advising that such a transfer would not necessarily determine the outcome of the case (as although TH was habitually resident in Northern Ireland, the court was equipped with the powers to effect a transfer of his care to EUC either under a public law or private law solution) he concluded by declining to exercise his discretion to stay the proceedings with a view to transfer under Article 15.

Held

Parental application refused.

Comment

It is always interesting to note the limitations that apply to the ‘welfare interests of the child’ test. In this instance, the criteria for determining the most appropriate jurisdictional forum would seem to lean in favour of the Northern Ireland courts: there is uncertainty surrounding the parents’ residence; there are doubts as to the quality of their relationships with the child; and the child’s attachment to the foster carers must be taken into account. The extent of ongoing proceedings and the consistency of professional involvement are also important factors. However, the result, arguably, will be prejudicial to any long-term objective application of that test as the growing bond between child and carers, in his current adoptive placement, will inevitably displace all other considerations. In relation to such a very young child in a relatively brief ‘looked after’ placement – whose parents, family network and approved/willing carer are all resident in another jurisdiction – kinship and cultural links must constitute significant factors in determining his long-term welfare interests. The very real jurisdictional difference in the childcare and protection laws of the countries concerned means that the ‘welfare interests test’ is necessarily relevant to a determination on the appropriate forum, and perhaps should not be foreclosed by a decision which elides the purposes of proceedings.

Notes

i. See Article 15(3)(c)

ii. [2017] 1 FLR 223

iii. [2021] NIFam 7

iv. Citing, Munby J in AB v JCB [2008] EWHC 2965 at [35]

v. [2016] UKSC 15 at [43]

vi. Ibid, at para 46

vii. [2014] EWHC 16 at [24]

viii. [2015] EWCA 1112 at [189]

ix. [2014] EWCA 152 at [20]

x. [2013] UKSC 33

xi. Ibid, at [105]

xii. Op cit, at [15]

xiii. Citing, for example, Moylan J in Leicester City Council v S [2014] EWHC 1575 at [9] and [10]

Kerry O’Halloran, lawyer, social worker and academic, prepared these notes.