username

password

Established
AlphabiolabsHousing Law WeekBerkeley Lifford Hall Accountancy Services

Home > Judgments

Child And Family Agency of Ireland v AB [2021] EWHC 1774 (Fam)

Keehan J decides the first application made by the The Child and Family Agency in Ireland (CFA) for a transfer request pursuant to Article 8 of the 1996 Convention rather than the previously used provision of Article 15 of the Brussels II Revised regulation ('BIIR').

___

After Brexit applications to transfer care proceedings between EU states to or from the UK cannot be made under Art 15 BIIR. The CFA therefore sought to rely on Article 8 of the Convention of 19th October 1996 on Jurisdiction Applicable Law Recognition Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children ('the 1996 Convention') which provides:


ARTICLE 8 (1) By way of exception, the authority of a Contracting State having jurisdiction under Article 5 or 6, if it considers that the authority of another Contracting State would be better placed in the particular case to assess the best interests of the child, may either  – request that other authority, directly or with the assistance of the Central Authority of its State, to assume jurisdiction to take such measures of protection as it considers to be necessary, or – suspend consideration of the case and invite the parties to introduce such a request before the authority of that other State.

(2) The Contracting States whose authorities may be addressed as provided in the preceding paragraph are a) a State of which the child is a national, b) a State in which property of the child is located, c) a State whose authorities are seised of an application for divorce or legal separation of the child's parents, or for annulment of their marriage, d) a State with which the child has a substantial connection.

(3) The authorities concerned may proceed to an exchange of views.

(4) The authority addressed as provided in paragraph 1 may assume jurisdiction, in place of the authority having jurisdiction under Article 5 or 6, if it considers that this is in the child's best interests

AB was subject to a pre-birth child protection plan to English local authority No 1.  AB's full sibling was in foster care under an interim care order to that local Authority. The parents went to Ireland for the birth of AB, to avoid the local authority seeking to remove him too.

CFA were notified by the local authority and they issued care proceedings in Ireland and AB was placed under an interim care order. The parents moved back to England to live in Local Authority No 2.  A judge in Ireland decided that the proceedings were better heard in England and therefore CFA applied to the Family Court in England that the proceedings should be heard here.

Keehan J decided that the issue of inter jurisdictional transfer under Article 8 should be decided on the same principles as cases under Art 15 BIIR. He therefore applied the reasoning of Cobb J in Re LM [2013] EWHC 646 (Fam) and Munby P in In the Matter of HJ (A Child) [2013] EWHC 1867 (Fam) and ordered the acceptance of the transfer requested . He designated local authority 2 as the authority to bring the necessary proceedings under s31 Children Act 1989.

Case summary by Nicholas O'Brien, Barrister, Coram Chambers

For full case, please see BAILII