B e f o r e :
|CHILD AND FAMILY AGENCY OF IRELAND||Applicant|
|- and -|
|(1) A MOTHER (2) A FATHER (3) A LOCAL AUTHORITY||Respondents|
(Incorporating Beverley F. Nunnery & Co.)
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This transcript has been approved by the Judge.
MR D. DAY (instructed by Hecht Montgomery Solicitors) appeared on behalf of the First Respondent.
MS S. PYLE (instructed by Morrison Spowart Solicitors) appeared on behalf of the Second Respondent.
MR A. TAYLOR (instructed by the Legal Services Department of the Local Authority) appeared on behalf of the Third Respondent.
MS S. BEAUMONT (instructed by Zermansky Solicitors) appeared on behalf of the Children's Guardian.
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MR JUSTICE FRANCIS:
"In my view, this child has and does possess a UK nationality and identity."
"The evidence in relation to the child is such that she is well placed in foster care at the moment and the court is very slow to interfere with that placement but because of her nationality, and because of her particular connection with the UK which arises from the mother's background, any application in relation to the welfare or the upbringing of this child requires close attention to be given to the background and circumstances, particularly of her mother... This lady's background [by which he means the mother] is extremely complicated and requires the fullest access to all the medical, psychiatric, and social work reports which exist. These reports can only be ultimately relied upon to be produced in the United Kingdom and they are of fundamental importance to informing any court decision regarding the child's welfare."
"This cannot, in my opinion, be done in this jurisdiction. Therefore, the court better placed to deal with these matters is undoubtedly the court of the United Kingdom and Wales."
"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
(b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5."
"The courts of that other Member State [and of course by that, in this case, it means England and Wales] may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six 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."
"I add one thing. As Cobb J has explained, the function of the court of the requested state in a case such as this is fairly limited. Moreover, it is highly undesirable as a matter of general principle that unnecessary delay should be permitted in what is intended to be a relatively simple and straight forward process under Article 15(5). Unnecessary satellite litigation in such cases is a great evil. Proper regard for the requirements of BIIr and a proper adherence to the essential philosophy underlying it, requires an appropriately summary process. After all, too ready a willingness on the part of the court to go into the full merits of the case at this preliminary stage can only be destructive of the system enshrined in BIIr and lead to the protracted and costly battles over jurisdiction which it is the very purpose of BIIr to avoid."
"58 Third and last, the requirement that the transfer must be in the best interests of the child implies that the court having jurisdiction must be satisfied, having regard to the specific circumstances of the case, that the envisaged transfer of the case to a court of another Member State is not liable to be detrimental to the situation of the child concerned.
59 To that end, the court having jurisdiction must assess any negative effects that such a transfer might have on the familial, social and emotional attachments of the child concerned in the case or on that child's material situation."
"[F]'s carers are approved for long-term care and available to her for as long as she requires them. To move her now to interim foster carers with a view to a future move to permanent carers, whether a return to her birth parents or otherwise, at the end of child care proceedings runs contrary to her primary needs and best interests."