Health Service Executive of Ireland v Am (Mother) and Others

JurisdictionEngland & Wales
JudgeThe Hon. Mr. Justice Cobb
Judgment Date27 March 2013
Neutral Citation[2013] EWHC 646 (Fam)
Docket NumberCase No: DH0900092/UA11COOO43
CourtFamily Division
Date27 March 2013

[2013] EWHC 646 (Fam)





Royal Courts of Justice

Strand, London, WC2A 2LL


The Hon. Mr. Justice Cobb

Case No: DH0900092/UA11COOO43

Interested parties:

Health Service Executive of Ireland
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.

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.

The Hon. Mr. Justice Cobb



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.).



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...

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