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Cite as: [2013] 2 FLR 708, [2013] 1 Fam 308, [2013] Fam Law 806, [2013] 1 FAM 308, [2013] EWHC 646 (Fam), [2013] 3 WLR 1463, [2013] Fam 308

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THE HON. MR. JUSTICE COBB

This judgment is being handed down in private on Wednesday 27^th March 2013. It consists of 23 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

		Neutral Citation Number: [2013] EWHC 646 (Fam)
		Case No: DH0900092/UA11COOO43

IN THE MATTER OF LM (A Child)
AND IN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURT
AND IN THE MATTER OF ARTICLE 15 and 56 of the COUNCIL REGULATION (EC) 2201/2003 OF 27th NOVEMBER 2003
AND IN THE MATTER OF AN APPLICATION UNDER THE CHILDREN ACT 1989.

Royal Courts of Justice
Strand, London, WC2A 2LL

27/03/2013

B e f o r e :

THE HON. MR. JUSTICE COBB
____________________

	Interested parties: Health Service Executive of Ireland
	- and -
	AM (mother) MM (father) 'X' County Council 'Y' County Council

____________________

Henry Setright QC, and Alex Ruck Keene (instructed by Bindmans) for the
Health Service Executive of Ireland
AM (mother) and MM (father) in person
Diane Campbell (instructed by County Solicitor) for X County Council
Gwynneth Knowles QC (instructed by County Solicitor) for Y County Council

Hearing dates: 12 and 13 March 2013.
Judgment: 27 March 2013
____________________

HTML VERSION OF JUDGMENT
____________________

The Hon. Mr. Justice Cobb :

Introduction

In June 2012, AM (hereafter "the mother"), then in an advanced stage of pregnancy, travelled with her husband, MM (hereafter "the father") to the Republic of Ireland. In the following month, she gave birth to a baby girl ("LM"). LM is the mother's fourth child. The mother's older three children have been the subject of public law proceedings in this country, and are subject to public law final orders, all in kinship placements away from the mother.

At this hearing, in London, the mother told me that she and her husband made that journey to Ireland "purposely to avoid my child [i.e. the baby] being stolen" by the local authority who had taken proceedings in relation to her older three children. It is common ground that this local authority would indeed have issued care proceedings in relation to the baby, had the mother remained in their area.

The mother went on to tell me that "unfortunately" their plan has "backfired."

Upon her birth, LM was immediately the subject of care proceedings in the Republic of Ireland. She was placed in foster care. Those care proceedings are progressing in the Cavan District Court.

Within months of LM's birth, it appears that the parents had second thoughts about the wisdom of their plan. They left the Republic of Ireland in October or November 2012; the mother now lives in this jurisdiction. The father, for work purposes, lives in Scotland.

The mother has now not seen LM for over four months. The father has only seen LM twice in her life.

LM remains in the Republic of Ireland, and is in foster care.

The mother now wishes for LM to be brought to the jurisdiction of England and Wales, and seeks orders that the Irish care proceedings be transferred to the English Court. All parties in the Irish proceedings concur with these proposals.

This judgment serves two principal purposes:

i) It discusses the legal and practical complications arising in seeking to achieve a transfer of jurisdiction in these circumstances;

ii) It seeks to provide solutions in the instant case, to achieve the move of LM to this jurisdiction in the near future, and the transfer of care proceedings to this Court, initially to the Family Division of the High Court.

This judgment further serves to highlight how futile, and potentially damaging to the infant child, was the course which the parents embarked upon in June 2012. I am advised that there are other parents who have considered leaving this jurisdiction (and indeed been advised by campaigning groups to do so, as the mother indicated she had been) to avoid public authority intervention in their lives, and to achieve some juridical advantage through process in the Irish Courts. Quite apart from the fact that the parents themselves in this case apparently soon came to realise that this was not a good solution for LM or themselves, this judgment will underline how effectively the Courts of England and Wales and the Courts in Ireland, and the public authorities in each State, are able to co-operate to achieve the transfer of a child, and the public law proceedings concerning that child under the Council Regulation (EC) 2201/2003 of 27^th November 2003 (hereafter 'BIIR'), where it is demonstrated to be in the interests of the child to do so. The approach of the English Courts and the Irish Courts appears to be similar; the Irish Constitution exhibits no intention to establish Ireland as a sanctuary for families from other jurisdictions: see the Irish Supreme Court's decision in Nottinghamshire County Council v B [2011] IESC 48 (at paragraph 72, per O'Donnell J.).

Background

The mother is a British national and is aged 28. She has four children: C (a girl) born [a date in] 2005, R (a boy) born [a date in] 2007 and L (a boy) born [a date in] 2009. Her fourth child, LM (a girl), was born in Cavan, Ireland on 20^th July 2012. LM is the only child born to the marriage of the mother and the father.

C, R and L were all the subject of public law proceedings brought by X County Council in March 2011. The evidence relevant to the 'significant harm' threshold derived from concerns about issues of domestic abuse within the family, alleged physical abuse of R, the mother's alcohol misuse, mental health issues, and neglectful parenting.

When the proceedings were commenced, the mother was in fact in prison having been remanded in custody for public order offences and offences of violence. In May 2011 the mother was convicted of those offences and was sentenced to a two year suspended prison sentence, and a twelve month probation order. Shortly after her release from prison, she commenced a relationship with the father.

The public law proceedings concerning C, R and L concluded in May 2012 (albeit final orders in relation to C had been made in October 2011); the court found the threshold criteria (section 31 Children Act 1989) established, and determined that it was not in the best interests of the children to be in the care of their mother. The Court made the following orders (in outline) in relation to the children:

i) C - a residence order in favour of her father, and a supervision order in favour of X County Council;

ii) R - a residence order in favour of his maternal grandmother, and a supervision order in favour of X County Council, and

iii) L - a care order in favour of X County Council, placed with paternal relatives.

All the children currently live in family/kinship placements in the area of X County Council.

By the time of the hearing in May 2012, the mother, who had by that time married the father, was pregnant. She made it known to the social work staff of X County Council that she intended to move out of the jurisdiction of the English Courts to prevent care proceedings being taken in respect of her then unborn baby. The judge who determined the care application noted in her judgment:

"her initial response to questions about [her plans for the birth of her child] was that she would no longer be in this country for the birth. When questioned further by me, she vouchsafed she would be either in Scotland or Ireland for the birth".

On 29^th June 2012, shortly before the birth of LM, the mother moved with her husband to the Republic of Ireland.

As soon as LM had been born on [a date in] 2012, the Health Service Executive of Ireland ("HSE"), which had been made aware of the previous care proceedings in England and Wales by X County Council and/or by the mother herself, and after consideration of the facts, applied for and was granted an emergency care order in the Cavan District Court. An on-notice hearing took place on 26^th July 2012 and an interim care order was made by the Cavan District Court under section 17(1) of the Child Care Act 1991; that order was expressed to run until 17^th August 2012, and it has subsequently been renewed by further orders made by that court. Within the Irish proceedings, social work and forensic psychological assessments have been undertaken of the mother and the father, and a psychiatric assessment of the mother; LM had been represented by a Guardian ad Litem. Unsurprisingly, at an early stage of the proceedings, the HSE made enquiries of X County Council to explore the possibility of LM being placed in the area of X County Council.

In October or November 2012, the mother left the Republic of Ireland; the father had left sometime earlier. Upon her return to this jurisdiction, the mother moved to the area of Y County Council; her Irish solicitors indicated that she had done so "with a view to building a life for herself there". The status of her residence in the area of Y County Council is potentially relevant on a question of 'designation' of relevant authority, and I discuss it further below. It is to be noted that Y County Council is approximately 200 miles distance from X County Council.

In December 2012 the mother (by her lawyers in Ireland, as she was by this time living back in this jurisdiction) made a free-standing application to the High Court in Dublin (not the Cavan District Court where the proceedings were ongoing) seeking an order for the transfer of the Irish care proceedings relating to LM to the courts of England and Wales. In support of that application, the mother swore an affidavit in which she made these representations:

"My other three children and my extended family are all resident in England and Wales. My husband's family are all resident either in England or Wales or Scotland. Therefore, [LM]'s entire extended family is habitually resident in the United Kingdom. My husband and I had hoped to build a life for ourselves in Cavan, but it is becoming increasingly clear to us that this is not going to be possible.

I am in the process of securing accommodation in [the area of Y County Council]. It is my hope that my husband will also make this his permanent residence so that we can build a life together in the United Kingdom and work towards re-unification with our daughter.

[LM] is a UK citizen by virtue of my and my husband's UK citizenship. [LM] has no connection with Cavan or Ireland apart from the fact of having been born there. If the care proceedings were to continue in Ireland and she were to remain in HSE care, then she would be most likely spend her entire childhood in a place where she has no family connections of any kind. If the care proceedings are transferred to the courts of England and Wales, it will be possible for my husband and me to have greater involvement in [LM]'s life in the short term, while meeting our family and professional commitments.

I say and believe and am advised by my legal representatives that the courts of England and Wales are better placed to hear the ongoing care proceedings concerning [LM]. I further say and believe and am advised by my legal representatives that it is in [LM]'s best interests for her to be moved to England and Wales and for the case concerning her welfare to be transferred to that jurisdiction."

The mother contended in her application that -

i) LM is a British national; and that

ii) She and the father are both habitually resident in England and Wales.

She argued that, on either basis, the Irish court could satisfy itself that LM has "a particular connection" to the jurisdiction of England and Wales (Article 15(3) BIIR).

All parties served with the mother's application consented to the grant of the relief she sought. On 20^th December 2012 Mr. Justice Birmingham, by consent, made a request that, pursuant to Article 15(1)(b) of BIIR:-

"The High Court of England and Wales accept jurisdiction in relation to the proceedings concerning the placement of [LM] in to public care".

That request was specifically predicated upon his findings / declarations that:

"the courts of England and Wales are better placed to hear any further proceedings concerning the placing of [LM] into public care, and that it is in the best interest of [LM] for any further proceedings concerning the placing of [LM] in to public care to be heard before the courts of England and Wales, and that [LM] has a particular connection with England and Wales within the meaning of Article 15(1) of [BIIR]".

This request was transmitted by way of the Central Authorities designated under BIIR. Notwithstanding this formal request, on 21^st December 2012 the mother appeared in person (without notice to any other party) before the Urgent Applications Judge of the Family Division in London (Mostyn J); it appears that the mother was seeking to accelerate the transfer process by engaging directly with the English courts. Mostyn J was informed by the mother (as it so appears from the recital on the face of the order) that "on 20^th December 2012 Mr. Justice Birmingham, sitting in the High Court in the Republic of Ireland, invited this court to assume jurisdiction in relation to [LM] pursuant to Article 15 of [BIIR]". His Order contains the request that "the High Court of the Republic of Ireland do confirm that veracity of the aforesaid representations and do produce a copy of the said request to the office of Lord Justice Thorpe to liaise to establish all facts and matters relevant to the aforesaid."

On 4^th January 2013, the Department of Justice & Equality (Ireland) sent the request for transfer to the Central Authority of England and Wales. On 11^th January 2013, the Irish High Court Judge designated as the liaison judge for BIIR purposes (the 'Network' Judge) contacted the office of Lord Justice Thorpe (having liaised with Birmingham J) to inform that office of the transmission of the Article 15 request through the offices of the Central Authorities. On the 15^th January 2013, the English Central Authority sent the request to the Clerk of the Rules, who placed the request before Roderic Wood J; he requested information from X County Council as to its interest in the welfare of LM, having regard to the earlier proceedings in which it had been the Applicant concerning C, R and L. A detailed summary of X County Council's involvement with the mother and her family was sent by e-mail from the lawyer at the council to the Clerk of the Rules, who then placed the information before me, sitting as the Urgent Applications Judge, on 5^th February 2013.

Recognising the range and complexity of the jurisdictional and practical difficulties in accepting the request for transfer, and the apparent desirability of doing so, I instigated enquiries of Irish Network Judge as to whether -

i) Direct judicial communication could be facilitated between Birmingham J and myself, and

ii) Whether the Irish High Court could forward copies of any documents prepared by the mother or other parties for the purposes of the proceedings before Birmingham J, so that I could more fully understand the background to the Article 15 request.

In fact, before any direct judicial communication could be achieved, the HSE instructed solicitors in England, Messrs Bindmans, who contacted my clerk to request a hearing in this jurisdiction in order to facilitate the resolution of the Article 15 request.

This hearing, which took place over 12^th and 13^th March 2013, was accordingly arranged. Before notice of this hearing had been communicated to all parties, the mother once again appeared in person before a judge of the Family Division, this time before Eleanor King J (again without notice to the other parties). Upon sight of a number of documents (precisely which documents it is not clear) Eleanor King J made an order listing the matter for consideration on 6^th March 2013, directing attendance by a representative of Y County Council. Once Eleanor King J became aware of the listing of this hearing, she adjourned her listed return date to 12^th March.

At this hearing, on the matters relevant to and consequent upon the Article 15 transfer request, the position of the parties is as follows:

i) The mother: The mother initially proposed, and continues to support, a transfer of the proceedings to this jurisdiction, stating that it is clearly in LM's interests that such a transfer should be effected. Towards the conclusion of her submissions, she appeared to suggest that her agreement to the Article 15 transfer was in fact conditional upon the receiving authority being identified as Y County Council rather than X County Council. I note the mother's position in this regard and discuss it further below. That her acceptance of transfer is said to be conditional on the identification of a specific local authority as applicant in this country is of no real consequence, given that effective transfer relies on 'acceptance' by one party only to the Irish proceedings; in the instant case, the HSE has indicated its unconditional acceptance.

ii) The father: By letter dated 6^th March 2013 from the father's Irish solicitors, I was advised that he "continues to support his wife's Article 15 request and consents to the transfer of the public law proceedings in their entirety to the jurisdiction of England and Wales. Our client is content that his position be confirmed by Counsel on behalf of the HSE to the English court on 12^th March 2013." In fact the father attended, from Scotland, for the second day of this hearing and confirmed that he supported the transfer but (corresponding to the position of his wife) wished me to identify the proposed applicant authority as Y County Council;

iii) The HSE: The HSE unconditionally 'accepts' the transfer and supports the court taking effective steps to achieve transfer of the proceedings to this jurisdiction; it invites me to be satisfied that it is in the best interests of LM that the proceedings are so transferred; the HSE is neutral on the identification of the appropriate 'receiving' authority;

iv) The Guardian ad Litem in the Irish proceedings: The Guardian, by letter dated 11^th March 2013, confirms that it is her opinion:

"that the application being made is in the interests of [LM] and should be proceeded with as a matter of urgency …."

The Guardian expresses her concern that "a transition plan" should be devised to achieve the physical transfer of the infant LM to this jurisdiction ideally to "a long term placement …. should the decision outcome of care proceedings in England and Wales be that [LM] remain in long term State care". She supports a transition plan "strictly on the basis that" LM is placed in the care of a specific local authority (she had proposed X County Council) and recommends that a Guardian ad Litem be appointed for LM.

The legal complexities associated with the request for transfer of the proceedings, and of LM herself to this jurisdiction should I accept the transfer, are further complicated by a disagreement between X County Council and Y County Council (both of which are represented before me), as to which should be the authority responsible for LM in the interim, and the applicant authority in any public law proceedings in the courts of this jurisdiction. In this hearing, I have been requested by the parties to identify which authority should be nominated to be the applicant in public law proceedings; I have been asked to select the authority by reference to the criteria relevant to the 'designation' of such authority in the event that a care order were to be made. It has been agreed between X County Council and Y County Council, entirely responsibly in my judgment, that the authority which I identify will accept responsibility for LM, and stand as the applicant in proceedings relating to her.

The issues:

This Article 15(1) request of 20^th December 2012 generates a number of jurisdictional, legal, and practical complications upon which my judgment and guidance is sought. I am specifically asked to consider:

i) First, whether this Court should accept the transfer request under Article 15. In determining this issue, I have been invited to consider whether my role is to determine simply the 'best interests' limb of the Article 15 test, or whether I am entitled to (and/or should) consider all of the 'transfer' criteria;

ii) If a local authority is to be engaged here to accept responsibility for the care proceedings, how could or should that be done?

iii) If there is to be a transfer, how should the transfer be effected to the Courts of England and Wales (given that there are no current proceedings here and the child is not physically present here)?

a) If an authority is to take responsibility under transferred proceedings, should it be X County Council (in whose area the events occurred which prompted the public law proceedings concerning LM's half-siblings, and in whose area LM's half-siblings continue to reside), or Y County Council (where the mother contends that she now ordinarily resides)? Each authority contends that the other should be responsible;

b) If the proceedings are to be transferred, what transitional arrangements should be made for LM, and for the proceedings, in what jurisdiction, and how?

Having read the documents filed herein, the position statements of the parties, and having heard oral submissions over 1½ days, and given the urgency of a determination, I informed the parties as to the conclusions which I had reached in relation to the questions posed above (which I have set out again below at paragraphs 76 to 84); I indicated that this, my reasoned judgment, would follow.

Article 15 Request for Transfer

The relevant legal framework for the transfer of proceedings between the courts of Member States is contained with Article 15 of BIIR. There has been no issue before me that Article 15 applies as much to public law proceedings as it does to private law proceedings (see further on this point the judgment of Mostyn J handed down on the second day of this hearing: Re T (A child: Article 15 of BIIR) [2013] EWHC 521 at paragraph 23 and 24(i)). Article 15 provides as follows:

"Transfer to a court better placed to hear the case.

(1) By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child;

(a) Stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or

(b) Request a court of another Member State to assume jurisdiction in accordance with paragraph 5.

(2) Paragraph 1 shall apply:

(a) Upon application from a party; or

(b) Of the court's own motion; or

(c) Upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3.

A transfer made of the court's motion or by application by a court of another member State must be accepted by at least one of the parties.

(3) The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State;

(a) becomes the habitual residence of the child after the court referred to in paragraph 1 was seised; or

(b) is the former habitual residence of the child; or

(c) is the place of the child's nationality; or

(d) is the habitual residence of a holder of parental responsibility; or

(e) is the place where property of the child is located, and the case concerns measures for the protection of the child relating to the administration, conversation or disposal of this property.

(4) The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1.

If the courts are not seised by that time the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

(5) The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within 6 weeks of their seisure in accordance with paragraph (1)(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

The courts shall co-operate for the purposes of this Article, either directly or through the Central Authorities designated pursuant to Article 53".

There is no doubt that the Irish Courts properly have the sole habitual residence based jurisdiction as to the "substance of the matter" concerning LM at present. At the instigation of the mother, as I have referred above, Birmingham J declared himself satisfied that the three-fold criteria for transfer of the proceedings to this jurisdiction were indeed established, though I have no record of his reasoning. Although not expressly specifying under which criterion he determined LM's "particular connection" with the jurisdiction of England and Wales, there is no doubt that this jurisdiction is the place of LM's nationality: see Article 15(3)(c), and section 2(1)(a) British Nationality Act 1981. The mother is a British citizen by birth.

It is almost certain that the mother is currently habitually resident in England and Wales; she plainly asserts that she is. This would in fact found another basis upon which LM could have a "particular connection" with this jurisdiction.

Birmingham J. considered that this Court would be "better placed to hear the case", and in this respect he was entitled to have regard to the fact that the mother has now returned to this jurisdiction after her relatively brief stay in Ireland, and that there is no indication that she harbours any intention of returning. Further, the evidence which justified public authority intervention in this family's life in 2012 originates in this jurisdiction, in the area of X County Council. The mother has indicated an intention vigorously to oppose any final public law order; given her residence in this jurisdiction now, it would be preferable for her to have that opportunity in the courts of the country in which she now lives. For all these reasons, I recognise that this Court is indeed prima facie "better placed to hear the case".

The request for transfer under Article 15 was further predicated upon a conclusion that it is in LM's "best interests" for the transfer to be made to this court. It is suggested on behalf of HSE that the best interests test is amply satisfied by a combination of the following factors, in summary:

i) LM is British; her parents, siblings and kinship carers are British.

ii) LM has no family in Ireland. Her only connection with Ireland is that she is physically present there because of a tactical international move made by the mother to avoid the jurisdiction of the English courts.

iii) The mother is now in this jurisdiction and has indicated a wish to remain here. Were LM to be returned to this jurisdiction, this would render easier the facilitation of contact between her and her mother. Assessments of family relationships will be more effective if mother and daughter can be seen regularly together;

and

iv) The background history of LM's older half siblings originates entirely in the area of X County Council; this evidence is likely to be important in any determination of LM's future care.

It is clear from Article 15(5) that the request for transfer must be considered judicially rather than administratively. Hence this hearing. However, a question arises whether the function of a court in the requested State determining a 'transfer request' is limited to a consideration of "best interests" only, or whether the court has a wider remit to review for itself all of the criteria for transfer. In considering this question, I must be careful not to arrogate to myself a function properly within the exclusive jurisdiction of the foreign court: see Munby J (as he then was) in AB v JLB (Brussels II Revised) [2009] 1 FLR 517.

My reading of Article 15(1) and Article 15(5), taken together, leads me to the conclusion that my function is limited to a "best interests" determination only. Article 15(1) appears to contemplate that it is in the courts of the Member State having jurisdiction as to the substance of the matter, requesting transfer, that the question of whether the child has a "particular connection" with the court of another Member State which would be "better placed to hear the case" should be considered. The role of the court of the requested State appears, by Article 15(5), to be limited to a consideration of "best interests" having regard to "the specific circumstances of the case"; the "best interests" evaluation will necessarily not be as profound as on a full hearing of an application for substantive relief with the benefit of the full evidence. While not relevant for my determination on these facts, if a court of a requested State considered that, contrary to the determination of the requesting State, the child did not in fact have a "particular connection" with the requested State in accordance with Article 15(3), and/or that the court of the requested State was not in fact "better placed to hear the case", it would surely reasonably easily reach the conclusion that it was not in the "best interests" of the child to accept the request for transfer, and would therefore decline it.

This approach appears to be consistent with the text of the Practice Guide to BIIR which, although only advisory, is nonetheless of assistance. In its section relating to Article 15, the text reads as follows:

"The court which has received the request for a transfer must decide, within 6 weeks of being seised, whether or not to accept the transfer. The relevant question should be whether in this specific case a transfer would be in the best interests of the child. The Central Authorities can play an important role by providing information to the judges on the situation in the other Member State. The assessment should be based on the principle of mutual trust and on the assumption that the courts of all Member States are in principle competent to deal with a case." [emphasis added].

Having regard to all of the circumstances of this case, and drawing upon the factors identified in paragraph 34 above in particular, I am wholly satisfied that it is in the best interests of LM that the public law proceedings should indeed be transferred to this jurisdiction. It follows that the courts of England and Wales will accept the request for transfer of the proceedings, and jurisdiction to determine the case concerning LM.

It is unfortunate that this request for transfer has not been determined more swiftly. I recognise that the mother herself made individual efforts to accelerate the process. Where an Article 15 request is made, it would be helpful, in my judgment, for the requesting State to communicate such a request at once through the offices of the International Judicial Network; further or alternatively, the court in the requesting State should invite one of the parties in that case (in a public law matter, the public authority, I suggest) to drive along the request, and seek directions for the judicial determination of such a request, in the requested State. These routes may prove to be more effective, and speedy, than the alternative of communicating the request through the Central Authorities designated by BIIR.

The Article 15 transfer takes effect between the general jurisdiction of the requesting State and the general jurisdiction of the requested State. I need therefore to turn next to the arrangements domestically for giving effect to the transfer.

Giving Effect to the Transfer

The arrangements for the transfer of proceedings from one Member State to another demands co-operation with regard to the accompanying physical transfer of the child; reference is therefore indicated to Chapter IV of BIIR ("Co-operation between Central Authorities in matters of Parental Responsibility"). Where the transfer is of a public law process, Article 56 comes in to play, in respect of which sub-paragraphs (1)-(3) state:

(1) "Where a court having jurisdiction under Articles 8 to 15 contemplates the placement of a child in institutional care or with a foster family, and where such placement is to take place in another Member State, it shall first consult the Central Authority or other Authority having jurisdiction in the latter State where public authority intervention in that Member State is required for domestic cases of child placement.

(2) The judgment on placement referred to in paragraph 1 may be made in the requesting State only if the competent authority of the requested State has consented to the placement.

(3) The procedures for consultation or consent referred to in paragraphs 1 and 2 shall be governed by the national law of the requested State."

As confirmed by the judgment of the Court of Justice of the European Union in Health Service Executive v SC (Case C-92/12 PPU) [2012] 2 FLR 1040, it is necessary for a consent from a 'competent authority' to be obtained in advance of any judgment made by the court of the requesting State (Article 56(2)); the mechanism for obtaining consents in England and Wales in respect of 'incoming' requests from Courts in other EU states for placements in residential or foster care is now set out in the non-statutory advice note issued by the Department for Education (January 2013). In this instance, whilst no formal Article 56 request has yet been made, it will be apparent from reading the totality of this judgment that a competent authority of England and Wales ("the requested State") will consent to the placement. The Irish Court will, in the circumstances, exercise a residual jurisdiction simply to achieve the transition of both LM and the proceedings to this jurisdiction. Once the proceedings are transferred, the jurisdiction of the Irish Court will cease.

Local authority engagement with the Request for Transfer

The Family Procedure Rules 2010 contain domestic procedural provisions relevant to the transfer of proceedings under Article 15 of BIIR: see rule 12.61 to 12.71 inclusive. Rule 12.66 provides as follows:

"(1) Where any court other than the High Court receives a request to assume jurisdiction in a matter concerning a child from a court or other authority which has jurisdiction in another Member State or Contracting State, that court must immediately refer the request to a Judge of the High Court for a decision regarding acceptance of jurisdiction to be made.

(2) Upon the High Court agreeing to the request under paragraph (1), the court officer will notify the parties to the proceedings before the other Member State or Contracting State of that decision and the case must be allocated as if the application had been made in England and Wales.

(3) Upon allocation, the court to which the proceedings are allocated must immediately fix a directions hearing to consider the future conduct of the case.

The court officer will serve notice of the directions hearing on all parties to the proceedings in the other Member State or Contracting State no later than 5 days before the date of that hearing."

Rule 12.66(2) contemplates two distinct steps:

(1) That the court officer will notify the parties to the proceedings before the other member State (in this instance, Ireland) of the decision of this court to accept the transfer; and

(2) This court must allocate the case within this jurisdiction "as if the application had been in England and Wales". Once the case has been allocated, a directions hearing must be fixed to "consider the future conduct of the case": Rule 12.66(3).

These rules essentially provide for the court to proceed here as if the application for a public law order had been made in respect of LM under Part IV of the Children Act 1989 (and in particular, on these facts, under section 31 Children Act 1989). In my judgment, it must follow that the provisions of Part IV in their entirety therefore apply to the future management of the case once the jurisdiction of England and Wales is engaged.

Rule 12.66(2) contemplates that this court, as the court of a requested State, shall take at least some preparatory steps (identified in paragraph 44(2) above) to give effect to the imminent receipt of the proceedings. This anticipatory process operates as an exception to the principle that the courts of England and Wales will not generally exercise jurisdiction in relation to a child who is neither physically present nor habitually resident here; such a course has been recognised as a legitimate approach by way of an "auxiliary" power exercisable in limited circumstances "to provide protective measures to safeguard children in transit from one jurisdiction to another…" [47]: see Re W (Jurisdiction: mirror order) [2011] EWCA (Civ) 703. The judgment of Thorpe LJ in Re W drew on the decision of Singer J. in Re P (A child: mirror orders) [2000] 1 FLR 435, in which it was observed that:

"… there is the category of case, of which this one is typical, where a foreign court is making provision for contact to take place in another jurisdiction in this case England. In that category of case it is important that there should be the possibility for orders to be made in advance of and against the arrival of the child so that the parties and the foreign court may have confidence that if either of them seeks to take advantage of the presence of the child in the contact jurisdiction, the court there will not lend itself to any such attempt." [Emphasis added]

Singer J. considered that "as a matter of common sense, of comity, and of public policy" the High Court should make orders in these circumstances notwithstanding the absence of the child or the lack of habitual residence of the child in question: see page 441 ibid (and see also Wilson J (as he then was) in A v A (Abduction: Jurisdiction) [1995] 1 FLR 341). The "expedient" route (as he described it) adopted by Singer J is arguably no longer necessary, given the provisions of Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection Of Children 1996 (which entered into force here on 1^st November 2012).

Rule 12.66(2) requires me to allocate a case as if the application under section 31 Children Act 1989 had been made in England and Wales. Given the unusual circumstances in which these public law proceedings have come before the English courts, I will in the first instance allocate the proceedings to the High Court, Family Division. For the time being at least, I intend to reserve the proceedings to myself. Consistent with the mandatory requirements under Rule 12.66(2) and (3) to prepare for "the future conduct of the case" it falls to me next to consider the question of which Local Authority should stand in the position of Applicant for the purposes of advancing the proceedings under Part IV of the Children Act 1989.

In this respect, I note that the only applicants for a care order could be an English or Welsh local authority, or the NSPCC (section 31(1)/(9) Children Act 1989); it is appropriate that the identified applicant authority should be the one which, on the information available, would be likely to be the 'designated' authority under Section 31(8) Children Act 1989 in the event that a care order is made. In this case I welcome the willingness of the two local authorities to accept the nomination of relevant local authority within this process; additional hurdles would need to have been overcome had there not been this level of co-operation, given the limits of the court's powers to make a care order in the absence of an application, and/or to require a local authority to take proceedings: see on these points Nottinghamshire County Council v P [1994] Fam 18, and R v East Sussex CC ex parte W [1998] 2 FLR 1082 (though see Ward LJ in Re D (A child)(Care Order: Designated Local Authority) [2012] EWCA Civ 627, [2012] 3 WLR 1648 at paragraph 20, referred to further, below).

Identification and designation of Local Authority following Transfer

Section 31(8) of the Children Act 1989 provides:

"The Local Authority designated in a care order must be –

(a) The Authority within whose area the child is ordinarily resident; or

(b) Where the child does not reside in the area of a Local Authority, the Authority within whose area any circumstances arose in consequence of which the order is being made."

That sub-section of the 1989 Act has to be read with section 105(1) and section 105(6).

"Local Authority" is defined in section 105(1) of the 1989 Act as meaning, in relation to England, "the Council of a County, a Metropolitan District, a London Borough or the Common Council of the City of London" and in relation to Wales, "the Council of a County or a County Borough".

Section 105(6) provides that:

"In determining the "ordinary residence" of a child for any purpose of this Act, there shall be disregarded any period in which he lives in any place –

(a) which is a school or other institution;

(b) in accordance with the requirements of a supervision order under this Act;

(ba) in accordance with the requirements of a Youth Rehabilitation Order…..; or

(c) While he is being provided with accommodation by or on behalf of a Local Authority."

For completeness, it is noted that the test for which authority would be designated in a supervision order is different from the test under section 31(8) (see Schedule 3, para.9(1) Children Act 1989); no party has contended in this case that I should determine which authority should take the lead in the care proceedings by reference to the likelihood that LM will live "within their area".

The interplay of section 31(8) and section 105(6) Children Act 1989 has generated considerable jurisprudence over the last two decades; that jurisprudence now has to be revisited (in some respects) given the repeal of section 23 and the different layout of statutory duties under sections 22A-G Children Act 1989. I have been referred in argument to the decisions of Northamptonshire County Council v Islington Borough Council [1999] 2 FLR 881 ("the Northamptonshire case"); C (A Child) v Plymouth County Council [2000] 1 FLR 875 ("the Plymouth case)"; Re H Care Order: Appropriate Local Authority) [2004] 1 FLR 534 (for convenience, I shall refer to this as "the Norfolk case"); Re D (A child) [2012] EWCA (Civ) 627 (for convenience, "the Kent case"), which are all decisions of the Court of Appeal; and Sheffield County Council v Bradford Metropolitan Council [2013] 1 FLR (forthcoming) ("the Sheffield case"), a decision of Bodey J.

The hopes of Thorpe LJ in the Northamptonshire case that the statutory sub-sections could provide "a simple test" to be "operated by the court in what should be the unlikely event of dispute, to determine which Local Authority is to be responsible for the care plan and its implementation" (p.891A) have not entirely been fulfilled, as the subsequent case-law demonstrates. What he hoped would be a "rapid and not over sophisticated review of the history to make a purely factual determination" (p.890G ibid.) in any given case has equally proved forlorn.

In this case, X County Council seeks to persuade me that the provisions of section 31(8) and section 105(6) do not apply readily, or at all, where a public law case is transferred to this jurisdiction under Article 15. Miss Campbell, on X County Council's behalf, illustrated that submission by suggesting that there may well be cases which fall into neither sub-paragraph of section 31(8) where for instance, a child is not "ordinarily resident" in England and Wales, where there is a combination of the following factors:

i) That the precipitating 'significant harm' or likelihood of harm generating public law proceedings in fact occurs abroad,

ii) There are no pre-existing concerns about the child arising within this jurisdiction; but where

iii) It is deemed by a requesting state that the child has a "particular connection" with a given requested state, that that state would be "better placed" to hear the case and both states consider that it would in fact be in the best interests of the child that the public law proceedings are heard here.

Further submissions on behalf of X County Council, focusing on the individual facts of this case, were advanced as follows:

i) That it would be unhelpful, and contrary to the expectation of the Irish Court requesting the transfer, for the mother and child to be living in the areas of separate local authorities which are 200 or so miles apart;

ii) That if X County Council took the view that LM should be placed with her mother under an Interim Care Order then, pursuant to section 22C (confirmed by the "Sheffield" decision) the designated authority would become Y County Council (if I found that the mother is indeed ordinarily resident in that area); and

iii) That the mother has not lived in the area of X County Council since June 2012 and that an 'exceptionality' test should apply.

Miss Campbell nonetheless accepts that the local authority which is identified by me as the applicant authority in this case is bound inevitably to rely upon the "threshold findings" made by the Circuit Judge who sat in the care centre in the area of X County Council, and who determined the proceedings concerning the mother's older three children.

On behalf of Y County Council, Miss Knowles argued that:

i) The ordinary arrangements for designation under section 31(8) and section 105(6) apply to a public law case which has been transferred under Article 15;

ii) that LM is not ordinarily resident in the area of Y County Council (section 31(8)(a));

iii) that there is evidence that the mother is not herself "ordinarily resident" in the area of Y county Council; and

iv) that section 31(8)(b) therefore applies, which determines that the designation in this case would fall to X County Council.

The mother supports the arguments of X County Council; she told me that there had been a "complete breakdown" in her relationship with the key social workers in X County Council when they were engaged in safeguarding her older children. She alluded to the practical difficulties which would arise in her having regular and meaningful contact with LM, given the distances she would have to travel, and told me that if LM were in the area of X County Council she "couldn't attend contact".

First, I reject Miss Campbell's submission that section 31(8) does not apply to an Article 15 transfer case. I am specifically required (on acceptance of transfer) to proceed "as if the application had been made in England and Wales" (rule 12.66 FPR 2010 – above). I recognise (as Miss Campbell submitted) that a highly unusual situation may indeed arise where (on the facts) neither sections 31(8)(a) nor (b) obviously apply. In such a case (which I expect will be vanishingly rare), I apprehend that the Court would apply an 'exceptionality' test such as referred to in the 'Northamptonshire' case. I do not need to address this point further here, as it is unnecessary for me to do so.

There is no doubt that "ordinary residence" and "habitual residence" are close relatives. The phrases have been treated as equated one with the other, indeed they have been described as synonymous; see V v B [1991] 1 FLR 266, Gateshead Metropolitan Council v L [1996] 2 FLR 179, and Re V (A Minor) Abduction: Habitual Residence [1995] 2 FLR 992. In Nessa v Chief Adjudicating Officer [1999] 2 FLR 1116, Lord Slynn described an "overlap" between the meaning of "ordinary" and "habitual" residence, recognising that one is sometimes defined in terms of the other. In Nessa the House of Lords recognised that there is "a common core of meaning" between the two phrases (see also, for completeness, Barnet London Borough Council v Shah [1983] 2 AC 309 at 342, [1983] 1 All ER 226 at 234).

That 'ordinary residence' and 'habitual residence' are broadly synonymous was a proposition accepted by all parties in these proceedings.

A child's habitual residence is generally the habitual residence of his or her married parents, or of his or her mother if she has sole custody rights and the child is in her care. These general statements of principle are not without exceptions. One important exception, in my judgment, applies on these facts. Where a child has been born abroad, and has never set foot in England and Wales, the child cannot be said to be habitually resident in England and Wales; see Rimer and Patten LJJ, giving the majority decision in ZA and PA v NA [2012] EWCA (Civ) 1396.

I draw particular attention to the comments of Rimer LJ at paragraph 38 and 39:

"[38] The decisions of this court in Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 and Al Habtoor v Fotheringham [2001] 1FLR 951 show that the question of whether a person is habitually resident in a particular country is one of fact. They further show that an essential ingredient in the factual mix justifying an affirmative answer is that the person was at some point resident in that country; and that it is not possible to become so resident save for being physically present there. If there has been no residence there, there can be no habitual residence there.

[39] Habitual residence in a particular country is not, therefore, a status in the nature of a legal concept that can, in the case of a child who has never resided there, be attributed to him at birth merely by virtue of his association with a parent who is habitually resident there. I consider, with respect, that it follows that the decision of Charles J in B v H (habitual residence: Warship) [2002] 1 FLR 388 was, as regards child H, wrong. Charles J found that H was habitually resident in England and Wales, but the child had never been there and so the essential factual ingredient of physical presence there was missing."

I have also had regard to the comments of Patten LJ at paragraph 46 and 47, in which he summarised the relevant principles referable to established jurisprudence. He drew there upon the Court of Appeal decision in Re M (Abduction: Habitual Residence) [1996] 1 FLR 887, in particular, in support of his conclusion that the acquisition of habitual residence in any country requires the adult or child in question to be physically present there. At paragraph 60 he further observed –

"It is clearly artificial as a matter of ordinary language to say that a child is habitually resident at birth in a country to which it has never been. As the cases recognise, residence denotes and involves a physical presence. Where the parent or parents have established a place of habitual residence in a particular country it will usually require no more than a moment's presence in that jurisdiction for a newly born child to acquire the same status." [emphasis added]

If "ordinary residence" and "habitual residence" are to be treated as having the same meaning for the purposes of section 31(8), as confirmed by all represented parties before me (see para.62 above), then in view of the judgments of the majority of ZA and PA v NA, the child LM is not, in my judgment, ordinarily resident in England and Wales, let alone any authority within this jurisdiction.

Having determined that the provisions of section 31(8)(a) do not apply on these facts, I turn to consider the provisions of section 31(8)(b); the circumstances in consequence of which the application before the English court is to be considered cannot, on any construction, be said to have arisen in the area of Y County Council. The circumstances obtaining to the mother's older three children formed the essential factual foundation of public authority intervention in Ireland, and as was rightly conceded by Miss Campbell on behalf of X County Council, will be heavily relied upon by the Applicant public authority in this jurisdiction to establish the "threshold criteria" under section 31 of the 1989 Act. It follows that the Local Authority which would be designated for the purpose of a care order in this case would be X County Council, which I accordingly identify as the appropriate applicant authority for the purposes of public law proceedings in this country, and shall be regarded as the "Competent Authority" of this, the "requested State", under Article 56(2) for the purposes of effecting the physical transfer of LM to this jurisdiction.

These conclusions are sufficient to dispose of the dispute on the identification of the appropriate applicant local authority for the purposes of public law proceedings concerning LM in this jurisdiction. Other, more tortuous, routes were proposed by Miss Knowles which I summarise briefly as follows:

i) As the HSE is not a local authority within the meaning of section 105(1) (see above), LM's period in foster care cannot strictly speaking be "disregarded" under section 105(6). As Ward LJ said in the "Kent" case:

"all that is required to be done is to determine where the child is, as a simple matter of fact, ordinarily resident at the time before the accommodation is provided. Section 105(6) should be confined to that and no more." [28]

The ordinary residence immediately preceding the commencement of the period of disregard is therefore deemed to continue uninterrupted. For a very short time following her birth, and before her reception into the care of HSE, LM would have to have been regarded as "ordinarily resident" in Cavan, Ireland, where the mother was arguable ordinarily resident at the time of LM's birth. If so, then section 31(8)(a) is discounted and we revert to section 31(8)(b) as before.

ii) If I was (contrary to the submission in (i) above) to treat LM's period in care in Ireland as a "disregarded" period, I would not be able to find, as a mixed question of fact and law that the mother's move to the area of Y County Council had created an ordinary residence for LM there for the following reasons –

a) The ordinary residence of a child will not change to that of his or her parent during public law proceedings unless the child is placed with or lives with the parent: see section 22C(2) – (6) of the 1989 Act and the "Sheffield case" (at paragraph 19);

b) Developments affecting the family during the period to be disregarded may be considered if they are "exceptional": see the Northamptonshire case at page 889F. In the "Plymouth" case Thorpe LJ refined what he had meant by "exceptional" developments; those words were not designed to give "the judge some sort of discretionary exit from the plain application of the mechanism contained in sections 31 and 105 …." (page 879B). It is notable in this respect that the factors adumbrated in paragraph 9 of the "Norfolk" judgment (see p.537) as tending to show an ordinary residence in that county were held in the Court of Appeal (see paragraph 13, p.538) to be insufficient to classify this as an exceptional case justifying a departure of the simple test identified in the earlier decisions of the Court of Appeal. On the facts of the instant case, the factors pointing towards ordinary residence in the area of Y County Council do not, when taken in combination, permit me to conclude that this case comes anywhere near the test of "exceptionality";

c) Y County Council has placed before this Court some limited evidence which indicates that the mother has not been candid with the Housing Authority in that area in making her application for housing, ostensibly mis-representing her "family" connections in the area, her marital status, and the composition of her dependent family at present (i.e. indicating that "she has four children [inferentially currently living with her]" which "is putting a strain" on the family with whom they are staying; she separately stated that there are four children "to be housed with [her]"). In her submissions, the mother broadly acknowledged these mis-representations. The mother only has temporary accommodation in the area of Y County Council (she was described on the form as "staying on the sofa" with friends). Moreover, she has an obvious and admitted record of "tactical" moves of home, and, had I been required to make a determination of the facts in this respect, I am not at all sure that I could have concluded that she is in fact "ordinarily resident" in the area of Y County Council in any event.

If I had been required to give greater weight to the arguments set out in sub-paragraph 68(i) or (ii) above, at their highest such arguments would simply have led me to conclude that LM is a child not resident in the area of any Local Authority; these arguments would not have led to a conclusion that LM could be clothed with the same ordinary residence as her mother. In the circumstances I would have once again been driven back to section 31(8)(b).

Transitional Arrangements

The Irish Court has the power in its domestic jurisdiction pursuant to section 47 of the Child Care Act 1991 to place a child outside its territory: see Western Health Board –v- KM [2001] SC 103, [2002] 2IR at page 26, where McGuinness J. said:

"In my view these powers [i.e. those under section 47 of the 1991 Act] include a power to direct or permit the placement of a child outside the State where the evidence before the Court indicates that such a placement is truly in the best interests of the child".

As indicated above (see paragraph 41 and 42) I consider that the placement of LM in this jurisdiction should be achieved under the provision of Article 56, and I leave responsibility for transitional arrangements and interim care until LM's arrival in this jurisdiction with the Irish Court. In my judgment, it is preferable for the courts of the Member State having jurisdiction as to the substance of the proceedings concerning LM to oversee the transfer arrangements (Article 15) rather than by exercising powers under Article 20 with the Regulation jurisdiction vested in this Court. That said, I contemplate that the jurisdiction of the Irish Court will cease upon LM's physical move to this jurisdiction, and the parental responsibility held by HSE will, I propose, be deemed to come to an end at the commencement of the directions hearing which I have directed pursuant to Rule 12.66(3) of the FPR 2010, as discussed above (see paragraph 44(2)). As soon as the Irish Court has indicated its intention to effect the transfer, I invite the HSE to notify my clerk and I will fix the date of the hearing; on that date, I will consider all applications for interim orders.

I will further make contact with the CAFCASS High Court team to discuss with them the allocation of a Guardian for LM within these High Court proceedings.

Co-operation and assistance

Under Article 15(6) (see above) it is to be noted that the courts of the Member States are expected to co-operate for the purposes of transfer requests, either directly or through the Central Authorities. I would like to observe that there has been a good degree of co-operation between the Irish and English authorities in pursuit of an outcome which will promote the best interests of the infant child LM. That co-operation has been significantly enhanced by the assistance offered to this court by the HSE which has co-ordinated and presented material to facilitate the speedy and informed resolution of this application. The HSE still has an important role to play in achieving the transition of LM, and these proceedings, to this jurisdiction, but as indicated above its role will cease at the very point at which I next have cause to consider the application. In the circumstances I wish to extend the gratitude of this court to the HSE, and those whom they instructed for the purposes of this transfer request hearing.

I have been greatly assisted by counsel for the two local authorities, which have taken – as I mentioned earlier – the entirely responsible approach in this case of accepting at an early stage that I would be selecting one to be the applicant authority on the material available to me.

Finally, the mother and father are to be commended for conducting themselves with dignity, unrepresented, in these difficult, and technically complex, proceedings. I remind them that I have formed no judgment on the substantive proceedings concerning LM at this stage. That is for another day.

Conclusions

I find that it is in LM's best interests that the proceedings are transferred from the Cavan District Court to the Courts of England and Wales.

I find that LM is currently not ordinarily resident in England and Wales, and that the circumstances in consequence of which the application is being made arose in the area of X County Council. Having regard to the provisions of section 31(8)(a) and (b) of the Children Act 1989, I will nominate X County Council as the applicant authority in the public law proceedings, which will be treated for all purposes (once jurisdiction is established here) as if made in England and Wales (pursuant to rule 12.66).

I will invite the court officer formally to notify the parties in the Irish proceedings that the English Court has accepted the request to assume jurisdiction (rule 12.66(2)), and in taking note of this position, I will ask the Irish Court further to note that the case will be allocated to the Family Division of the High Court, to be listed before me in the first instance.

I invite the Irish Court, and the Irish HSE, to consult with the social services of X County Council in accordance with Article 56 of BIIR to effect the transfer of the child.

I invite the Irish Court to direct that the statements and reports filed in the Cavan District Court proceedings are to be disclosed into the public law proceedings which are to be heard in this jurisdiction.

As soon as the Irish Court has prepared the plan to give effect to the transfer, I invite the HSE to notify my clerk and I will fix an urgent directions appointment (rule 12.66(3)) with a time estimate of 1 day, at which I will consider applications for interim orders.

As soon as LM has arrived in this jurisdiction, I expect X County Council to file and serve any application for interim orders, supported by evidence and, if an interim public law order is sought, a statement of interim 'threshold'. I note that the mother seeks orders (she has filed a C100 dated 21^st December 2012) which would have the effect of placing LM in her care, and she may also file evidence in support of the same.

I will invite CAFCASS Legal to appoint a guardian for LM, or to indicate whether CAFCASS in the area of X County Council should be asked to appoint a guardian.

The HSE will effectively cease to have responsibility for LM when the hearing commences in accordance with the provisions above.