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HJ (A Child) [2013] EWHC 1867 (Fam)

Application by the Health Services Executive of Ireland for the transfer of public law proceedings to England and Wales under Art 15 of Brussels (II) Revised

The mother had two older children from previous relationships, both of whom had been the subject of care proceedings instigated by West Sussex County Council and on 25 April 2012 both were made the subject of care and placement orders by the family proceedings court. By that time the mother was heavily pregnant with the child 'HJ'. She fled to Ireland in early May. HJ was born on 24 May 2012 and made the subject of an emergency care order by the Sligo District Court the same day. The parents returned to England in late June 2012.

On 7 February 2013 the Health Services Executive of Ireland (HSE) applied to the Irish High Court under Article 15 for the transfer of the matter to England and Wales. The application came before Birmingham J, who gave judgment on 2 May 2013. Birmingham J found, answering the questions arising under Article 15(1), that HJ had a "particular connection" with England and Wales, the English court was "better placed" to hear the case, and it was in the "best interests" of the child for proceedings to be heard in England and Wales. Birmingham J accordingly made an order pursuant to Article 15(1)(b) requesting this court to assume jurisdiction and an order pursuant to Article 15(1)(a) that the HSE be at liberty to introduce a request before the English court. That request came before Sir James Munby P.

The President endorsed the recent comments by Cobb J in the case of Re L-M (Transfer of Irish Proceedings) [2013] EWHC 646 (Fam). He agreed wholeheartedly with the sentiments Cobb J expressed in para [10] as to the futility of the course adopted by the parents in that case; and he agreed with his analysis in paras [35]-[37] of the limited function of the court of the requested state and with his analysis in paras [56]-[67] regarding the operation of sections 31(8) and 105(6) of the Children Act 1989 in cases such as this. He also endorsed Cobb J's various observations in paras [39]-[42], [70]-[73] as to the practical steps to be taken in such cases.

The President added that the role of the requested court was limited and the court should not be too willing to go into the merits of the case at a preliminary stage. In many cases the answer to the request would be obvious. There was no automatic need for a hearing to be listed on notice to the interested parties and it would often, as here, be appropriate for an order nisi to be made, which would stand unless an application were made for its set aside.

The President held that Birmingham J had been clearly correct and ordered that the request for transfer was accepted. His order, which is included in full in the judgment, included provision for the parents, if so advised, to have liberty to make representations if they considered that the matter should not be transferred, which would then be considered by the Court, but not automatically lead to an inter partes hearing.

He directed that WSCC be the allocated local authority and listed a one day hearing to consider interim orders before Cobb J and that HSE would cease to have responsibility for the child at the outset of that hearing, thus not necessitating HSE's attendance at the hearing. He commented, however, that in a case where an order nisi for transfer was made and there were to be (or could be) residual issues over transfer, the foreign authority's responsibility should cease during, rather than at the outset of, the further hearing. He directed limited disclosure from the previous proceedings, but commented that disclosure of previous papers should be considered on a case by case basis.

On a separate point, the President also stated that the use of the words "In the inherent jurisdiction of the High Court" in case headings was a solecism which "must now stop". The purpose of "In the matter of..." heading is either to identify the subject matter of the proceedings or to identify the legislative provision that founds the jurisdiction of the court. As the inherent jurisdiction was inherent in the court it did not need to be inserted into the headings of the case.

Summary by Thomas Dudley, barrister, 1 Garden Court
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This judgment was handed down in private but 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.

Case No: FD13P90015
Neutral Citation Number: [2013] EWHC 1867 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 2 July 2013

Before :

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION
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In the Matter of HJ (A Child)
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Mr Henry Setright QC (instructed by Bindmans) for the Health Service Executive of Ireland

Hearing date: 10 May 2013
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Judgment
Sir James Munby President of the Family Division :
1. This is an application by the Health Services Executive of Ireland (HSE) arising out of a request made on 2 May 2013 by Birmingham J in the High Court of Ireland pursuant to Article 15(1)(b) of Council Regulation (EC) No 2201/2003 of 27 November 2003, commonly referred to as BIIr. The proceedings, both here and in Ireland, relate to HJ. He was born, in Ireland, on 24 May 2012.

2. The material facts can be stated very shortly. HJ's mother has two children by a previous relationship, one born in September 2007 the other in November 2009. Care proceedings in relation to both children were commenced by the local authority, West Sussex County Council (WSCC), in April 2011. On 25 April 2012 the Family Proceedings Court made care orders in relation to both children and approved care plans for their adoption. By then, as will be appreciated, the mother's pregnancy was far advanced. The parents fled to Ireland in early May 2012. On 24 May 2012, the day he was born, the HSE was granted an emergency care order in relation to HJ by the Sligo District Court. The parents' last contact with HJ was in June 2012. By the end of that month both had left Ireland and returned to this country. On 7 February 2013 the HSE applied to the Irish High Court under Article 15. The matter came before Birmingham J on 30 April 2013. The mother was represented by counsel. Birmingham J gave judgment on 2 May 2013. He was, as it happens, the judge who had earlier dealt with the case of L-M that subsequently came before Cobb J in this country: Re L-M (Transfer of Irish Proceedings) [2013] EWHC 646 (Fam).

3. In his careful and compelling judgment, Birmingham J went through the facts and summarised what he called the main concerns of WSCC. He commented that "a very significant amount of detailed information as to [the parents] is available to the authorities in England and Wales" and referred to assessments carried out by various professionals in the context of the earlier care proceedings in this country. He set out the provisions of Article 15 before turning to consideration of the three questions arising under Article 15(1): Does HJ have a "particular connection" with this jurisdiction? Is the English court "better placed" to hear the case? Is this in the "best interests" of the child? He answered each question in the affirmative.

4. Having referred to what Cobb J had said in Re L-M at para [31], Birmingham J held that HJ is a national of this country and that the case accordingly fell within Article 15(3)(c). He held that it also fell within Article 15(3)(d) because this is the country of the parents' habitual residence. HJ accordingly has a particular connection with this jurisdiction. Birmingham J found that the English court was better placed to hear the case. He referred to HJ's wider family and continued:

"Given that all these people are resident in Britain, it seems to me that the courts in England and Wales would be better positioned to make these assessments. On the other hand if the case is dealt with in Ireland, the case will be dealt with by the courts of a country with which HJ has no real connection other than the chance of his birth place nor has any close family member of his any current connection with Ireland. That HJ was born here was as a result of a tactical decision taken by his parents at a time after a decision was taken by the competent authorities in England and Wales that a care order should be sought once the baby was born."

Posing the question, is it in HJ's best interests that the case be transferred?, he said:

"The first answer has to be that it is in a child's best interest that his or her welfare should be considered by the court best positioned to do so. In this case that is the courts of England and Wales. A further very significant consideration is that in England there is the possibility of him having contact in future with not just his parents, but with his half siblings and with members of his extended family … At this stage it is unclear whether that will happen or what form any contact might take but that is a possibility in England and Wales and offers a further reason for transferring the case."

5. Birmingham J accordingly made an order pursuant to Article 15(1)(b) requesting this court to assume jurisdiction and an order pursuant to Article 15(1)(a) that the HSE be at liberty to introduce a request before this court.

6. There is no need for me to go through Article 15 or to rehearse the jurisprudence. That has been done in masterly fashion by Cobb J in his judgment in Re L-M. I agree with his judgment. Without in any way seeking to limit the generality of that last observation, it may be useful if I spell out that I agree wholeheartedly with the sentiments Cobb J expressed in para [10] as to the futility of the course adopted by the parents in that case and, I might add, by the parents in the present case; that I agree with his analysis in paras [35]-[37] of the limited function of the court of the requested state; that I agree with his analysis in paras [56]-[67] of the operation of sections 31(8) and 105(6) of the Children Act 1989 in cases such as this; and that I agree with and would respectfully endorse his various observations in paras [39]-[42], [70]-[73] as to the practical steps to be taken in such cases.

7. In the present case the matter is all one way. Birmingham J was, if I may be permitted to say so, obviously right to conclude as he did and for the reasons he gave. More specifically, and focusing on the key question of how HJ's interests will best be served, there is really in this case, just as there was in Re L-M, only one possible answer: for the reasons given by Birmingham J it is plainly in HJ's best interests that his future be determined, as Birmingham J thought it should be, by the courts in this country.

8. 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.

9. In many of these cases – and both Re L-M and this case are good examples of the point – the proper answer to a request under Article 15 is pretty obvious. Plainly, where, notwithstanding the decision of the requesting court, there is some real point for the court of the requested state to consider, some solid point of substance, it may be appropriate for the judge at the initial without notice stage to give directions for a hearing on notice at which the parents or the local authority can argue that the court should not accept jurisdiction. But this should not be automatic. Where, as here, the case appears clear cut, the court can, and ordinarily should, make an order nisi, that is, an order that will take effect without any further hearing unless the parents (or the local authority) give notice of their wish to make representations as to why the order should not be made.

10. It was in these circumstances that on 24 May 2013 I made the order set out at the end of this judgment. It is, with only the most minor adjustments, in the form of the excellent draft prepared for me by Mr Setright. There is, however, one adjustment to which, if he will forgive me, I wish to draw attention. In accordance with what has now become the inveterate practice of the Family Division, the draft order was headed as being, amongst other things, "In the matter of the inherent jurisdiction of the High Court." This is a solecism. The purpose of 'In the Matter' headings in orders is twofold: either to identify the subject matter of the proceedings (as in "In the Matter of X (A Child) or "In the Matter of a Request by the High Court of Ireland dated [date] pursuant to Article 15(1)(b) of [the said] Regulation") or to identify the statute, directive, regulation or other legislative provision that founds the jurisdiction of the court (as in "In the Matter of the Children Act 1989" or "In the Matter of Council Regulation (EC) No 2201/2003 of 27 November 2003"). The inherent jurisdiction is, as the words indicate, the jurisdiction that is inherent in the court – in this instance that part of the jurisdiction inherent in the High Court of Justice as a superior court of record derived from the jurisdiction and practice of the old High Court of Chancery – independent of any specific legislative provision. The insertion in the headings to orders of reference to the inherent jurisdiction is both unnecessary and, as I say, a solecism. It must now cease.  

11. The order is largely self-explanatory, but there are two matters to which I should draw attention. First, although in the event I did not have to rule on the point, WSCC having accepted that it should be the designated local authority, it is clear on the facts that, consistently with Cobb J's analysis of the law in Re L-M, WSCC is indeed the relevant designated authority in accordance with section 31(8)(b). Second, the terms of paragraphs 4 and 5 of the order will be noted. The language of paragraph 5 was deliberately crafted to make clear that the mere giving of notice in accordance with paragraph 4 did not of itself confer a right to an inter partes hearing. It must depend upon the circumstances. In particular it must depend upon the reasons put forward in accordance with paragraph 4(c) as justifying the contention that the transfer should not take place. If there appears to be some arguable merit in the point, then an inter partes hearing may be appropriate. But if the reasons put forward for opposing the transfer are lacking in any arguable merit, or can properly and fairly be dealt with by the judge on paper and without a further oral hearing, then they should be dealt with accordingly. The delay and expense which is the inevitable consequence of a further hearing should be avoided wherever this can be done whilst still enabling the court to dispose of the matter fairly and justly.     

12. The order was served on the father on 29 May 2013 and on the mother on 10 June 2013. It is now 2 July 2013. The 10 days referred to in paragraph 4(b) of the order has thus expired. Neither parent gave notice. The order has accordingly become final.

13. There is one other important mater I should mention. The order in this case was made on 24 May 2013. Subsequently a very similar case in which Mr Setright also appeared came before Baker J. On being shown an anonymised version of the order I had made, Baker J raised what, if I may say so, are two very helpful points.

14. The first relates to paragraph 9(e)(iii). In the case before Baker J, the previous English care proceedings involving other children of the family were (unlike in the instant case where they were recent) very old. Baker J took the view that in those circumstances, requiring disclosure at this stage was unnecessary, and so that requirement was deleted from the draft. I respectfully agree. Whilst it may be, as in the present case, extremely useful for recent care decisions to be disclosed, making the same provision at the outset where those cases are very old may be unnecessary. Whether or not paragraph 9(e)(iii) is included in the order will, in other words, depend upon the circumstances.

15. The other point relates to paragraph 9(g) of the order. The effect of providing that the HSE should cease to have responsibility for HJ at the outset of the English hearing was that there would be no locus for the HSE at the hearing, as the element of retained Irish jurisdiction from which its residual parental responsibility flowed would be extinguished at the instant the hearing commenced. On that basis, it would be unnecessary for the HSE to attend the hearing at all. Baker J suggested that, although this would be acceptable in a case, like Re L-M, in which all inter-partes issues relating to the transfer had been determined by the English Court, and detailed arrangements for the physical transfer were provided for, it would be prudent in a 'transfer nisi' case in which, inevitably, some issues might remain undefined or unresolved, to provide instead that the words "at the outset" should be replaced by the word "during". He also suggested that, for the avoidance of doubt, the HSE should attend, so that if, for example, there was a difficulty with the physical transfer, and some aspects of the arrangements were other than complete and certain, the HSE would retain its parental responsibility and be present at the commencement of the hearing. I readily acknowledge the force of that. In an order nisi case, therefore, it may be more appropriate for words such as "at such point during or at or after that hearing as the Court may direct" to be substituted for the words "at the outset of that hearing" in paragraph 9(g).    

"IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF HJ …

AND IN THE MATTER OF COUNCIL REGULATION (EC) NO 2201/2003 OF 27th NOVEMBER 2003

AND IN THE MATTER OF A REQUEST BY THE HIGH COURT OF IRELAND DATED 2nd May 2013 PURSUANT TO ARTICLE 15(1)(B) OF THE SAID REGULATION



UPON the Court having listed this matter with urgency following the Request made herein pursuant to Article 15 of Council Regulation (EC) No 2201/2003 of 27th November 2003 ('BIIr') by Order of the Hon Mr Justice Birmingham in the High Court of Ireland dated 2nd May 2013 and by Order perfected on 8th May 2013 for the transfer of proceedings in respect of the child herein to England and Wales having been communicated directly by the Irish Court to the High Court of England and Wales

AND UPON the said request

AND UPON reading the position statement and chronology filed on behalf of the Health Service Executive of Ireland ('the HSE') dated 9th May 2012, and the documents specified in the reading guide within the said position statement, and upon the Court having been provided with a bundle by the HSE, the index of which is annexed to this order marked 'Schedule A'

AND UPON hearing leading counsel for the HSE on 10th May 2013 without notice to any other interested party or interested person or body

AND UPON West Sussex County Council ('WSCC') having subsequently indicated that in the event that the said request is accepted by the Court WSCC will not oppose being designated as the applicant local authority in the transferred proceedings and that WSCC is in the process of allocating a social worker, invites the Court to take case management decisions in those proceedings and intends to attend at the hearing provided for herein below

AND UPON the Court being satisfied on the basis of the material placed before it and subject to the provisions of paragraphs 4, 5 and 6 of the Order below that

(a) the child herein has a particular connection with England and Wales as defined in Article 15(3), and

(b) that the English Court is the Court best placed to hear public law care proceedings in respect of the child herein, and

(c) that it is in the best interests of the said child that such proceedings should be transferred from Ireland to England and Wales

IT IS ORDERED that:

1 The interested parties to this matter are (1) the HSE (2) [the mother] (3) [the father] and (4) WSCC.

2 The HSE shall be the lead interested party in this matter.

3 The Request made herein pursuant to Article 15(1)(a) and (b) by the High Court of Ireland and by the HSE for a transfer to the Courts of England and Wales of public law care proceedings in respect of the child HJ (born on … ) is accepted

(a) save and to the extent that it is necessary that the Irish Courts retain jurisdiction over HJ for the purposes of effecting his physical transfer into the jurisdiction of England and Wales and

(b) subject to the provisions of paragraphs 4, 5 and 6 below.

4 There be liberty to [the mother] and [the father] if so advised to make representations as to why the said transfer should not take place, any such representations shall

(a) be made on no less than one working day's prior notice to the English Solicitors to the HSE namely … by e-mail communication to …

(b) be made no later than 10 days after the service of this order

(c) be made in the first instance in writing, setting out with particularity the reasons for opposing the transfer, by e-mail communication to the President's Clerk …

5 The President will give further consideration to the Request in the event that such representations are received in accordance with the terms of paragraph 4 above.

6 In the event that no such representations are received no later than 10 days after the service of this order on [the mother] and [the father], the acceptance of the transfer shall become final without further notice to any interested party.

7 It is directed that the HSE shall, as soon as is reasonably practicable

(a) inform the mother and the father of these proceedings

(b) serve the mother and the father with this Order

(c) provide to the mother and the father (or to any Solicitor in England and Wales instructed by them) copies of the Court Bundle and any other material placed before this Court at this hearing.

(d) provide to WSCC [for the attention of … ] copies of the Court Bundle and any other material placed before this Court at this hearing, together with a copy of this Order, the Court hereby giving its permission for the disclosure of such material

8 Subject to the provisions of paragraphs 4, 5 and 6 above, it is further provided that:

(a) The High Court of Ireland and the Sligo District Court are respectfully invited to direct that all statements and reports filed in the public law care proceedings in respect of the child herein in those Courts are to be disclosed into the public law proceedings in the jurisdiction of England and Wales.

(b)  The High Court of Ireland and the Sligo District Court are respectfully invited to consult (the HSE being directed to liaise with those Courts and with WSCC for this purpose) with the social services department of WSCC to obtain an appropriate consent pursuant to Article 56(2) BIIr so as to permit the Irish Courts to make an order placing HJ (born …) with a foster family identified and agreed with WSCC.

(c) WSCC is respectfully invited to process forthwith any request received for a consent under Article 56(2) BIIr for a placement of HJ in a foster family identified and agreed as between itself and the HSE

9 Subject to the provisions of paragraphs 4, 5 and 6 above, it is further provided that:

(a) Pursuant to FPR r.12.66(2), the Court Officer shall notify the parties in the proceedings in the Sligo District Court in Ireland concerning HJ that the Courts of England and Wales have accepted the request made by the High Court of Ireland on 2nd May 2013 to assume jurisdiction over such proceedings (save and to the extent that it is necessary that the Irish Courts retain jurisdiction over HJ for the purposes of effecting his physical transfer into the jurisdiction of England and Wales).

(b) The transferred public law proceedings concerning HJ shall be treated for all purposes as if commenced in England and Wales under the requisite provisions of the Children Act 1989.  

(c) The designated local authority in the transferred public law proceedings in England and Wales concerning HJ is to be WSCC.

(d) The HSE shall as soon as is practicable notify the Court upon the preparation of a plan by the Irish Court to give effect to the transfer of HJ to the jurisdiction of England and Wales, and in anticipation thereof an urgent directions hearing with a time estimate of 1 day is hereby fixed before Mr Justice Cobb at 10-30am on 19th July 2013 pursuant to FPR r.12.66(3). At that hearing, which (for the avoidance of doubt) is fixed so as to take place subsequent to HJ's arrival in the jurisdiction of England and Wales, the Court will consider any interim applications in respect of HJ. The Court will also consider the allocation of the public law proceedings to the … Family Proceedings Court.

(e) Forthwith upon HJ's arrival in the jurisdiction of England and Wales, WSCC is to file and serve:

(i)  any application for an interim order in respect of HJ accompanied by supporting evidence;

(ii) (if an interim public law care order is sought) a document setting out the interim threshold criteria relied upon;

(iii) the order made in previous public law care proceedings in the … Family Proceedings Court, case number … with attached threshold findings made in respect of the mother's two elder children. 1

(f)  If [the mother] or [the father] wish to advance any proposals for HJs interim care, they shall file and serve upon WSCC any evidence upon which they seek to rely in support of such proposals at least two working days prior to the directions hearing provided for at sub-paragraph (d) above.

(g) The HSE shall cease (for purposes of the law of England and Wales) to have responsibility for HJ at the outset of that hearing. 2

(h) CAFCASS Legal is to appoint a Guardian for HJ forthwith.

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1  As to the appropriateness of including paragraph 9(e)(iii) see paragraph [14] above. 

2   In relation to the wording of paragraph 9(g) see paragraph [15]