HJ (A Child)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby President of the Family Division |
| Judgment Date | 02 July 2013 |
| Neutral Citation | [2013] EWHC 1867 (Fam) |
| Court | Family Division |
| Date | 02 July 2013 |
| Docket Number | Case No: FD13P90015 |
[2013] EWHC 1867 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby President of the Family Division
Case No: FD13P90015
Mr Henry Setright QC (instructed by Bindmans) for the Health Service Executive of Ireland
Hearing date: 10 May 2013
Sir James Munby President of the Family Division:
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.
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).
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.
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."
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.
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.
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.
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.
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.
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...
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