Supporting Documents:

BETWEEN:

RESULT: The Court grants leave to appeal to the Supreme Court from the decision of the Court of Appeal delivered on the 29th April, 2015.

REASONS GIVEN:

1. This determination relates to an application by the Child and Family Agency, the applicant, referred to as “CFA”, in which it seeks leave to appeal to this Court from parts of the decision of the Court of Appeal (Finlay Geoghegan, Peart and Mahon JJ.) delivered on the 29th April, 2015. CFA were represented by solicitor and counsel in the Court of Appeal.

2. C.J. the respondent, is referred to as “the respondent”. The respondent was not legally represented in the Court of Appeal. The respondent is a litigant in person in this Court, representing herself. The respondent is the mother of the child K.J., born on the 5th March, 2008. The child is referred to as “K”.

3. The second named respondent, C.S. is the father of K., but did not participate in the High Court or in the appeal to the Court of Appeal.

4. Ruth More O’Farrell, the notice party, is a guardian ad litem appointed in the context of related District Court proceedings, and appeared through solicitor and counsel in the High Court and the Court of Appeal for K.

5. This Court has jurisdiction to hear an appeal from the Court of Appeal in the circumstances described in Article 34.5.3° of the Constitution, which states:-

“3° The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that –

i the decision involves a matter of general public importance, or

ii in the interests of justice it is necessary that there be an appeal to the Supreme Court.”

7. The constitutional framework established by the 33rd Amendment of the Constitution thus requires, in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal, that it be demonstrated that either “a matter of general public importance” arises, or that “in the interests of justice it is necessary that there be an appeal” to this Court.

8. The statutory framework for the exercise of the right to apply to this Court for such leave is to be found in the Court of Appeal Act, 2014, and in particular the provisions of s. 44 of that Act which inserts a new s. 7 into the Courts (Supplemental Provisions) Act, 1961. The Rules of Court are set out in the amended Order 58.

9. The Constitution has retained the entitlement of one appeal as of right from the High Court to the Court of Appeal, subject to express exclusions or regulation by statute. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined principally to cases where, as a result of the determination of the Court of Appeal, the decision of that Court is such that the issues raised on a proposed appeal would involve a matter of general public importance or would be such that it is in the interests of justice that there be a further appeal to this Court.

10. In this application the CFA seeks to appeal parts of the decision of the Court of Appeal. The specific parts of the decision of the Court of Appeal which is sought to appeal are:-

“(i) The finding that as the court seised of proceedings under the Child Care Act 1991, there is a mandatory obligation on the District Court to conduct an enquiry in cases with a European dimension as to whether it has jurisdiction under Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (‘the Regulation’) or whether the courts of another Member State have jurisdiction and an obligation on it to make a declaration under Article 17 of the Regulation if it makes a finding that it does not have jurisdiction under the Regulation.

(ii) The finding that the High Court is only ‘seised’ of a case under the Regulation in certain circumstances and that its jurisdiction to make a declaration under Article 17 of the Regulation is thereby limited.

(iii) The finding that Article 20 can only ground a jurisdiction to make a transfer order for a child in respect of whom a declaration has been made under Article 17 in circumstances where a court of the Member State having jurisdiction in relation to that child has made an order seeking the return of the child.

(iv) The finding that the jurisdiction of the court to make orders in aid of foreign proceedings may be considered to exist pursuant to the ‘Recognition and Enforcement’ provisions of the Regulation rather than pursuant to Article 20 of the Regulation.

(v) The finding that recourse may only be had to the inherent jurisdiction of the High Court if the courts of Ireland have jurisdiction in relation to the matter under the Regulation.”

(i) K. was the subject of child care proceedings in Scotland.

(ii) The respondent, K.’s mother, left Scotland with K. and travelled to Ireland before the hearing of the child care proceedings in Scotland.

(iii) The respondent had been validly served with the child care proceedings in Scotland.

(iv) An order was made in the child care proceedings in Scotland in the absence of the respondent providing for K. to be removed from the respondent’s care and placed in the care of Social Services in Dundee. The order was continued on its expiry.

(v) The habitual residence of K. was Scotland.

(vi) Therefore under Article 8 of the Regulation, the Courts of Scotland had jurisdiction in matters of parental responsibility under the Regulation.

13. The High Court made the following orders:-

“2 A Declaration pursuant to the terms of Article 17 of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, that the Courts of Ireland have no jurisdiction under the Regulation in respect of matters concerning parental responsibility for the Minor.

3. A Declaration that K.J., a minor, born on the 5 March, 2008 (hereinafter “- the Minor -”) is and at all material times hereto was habitually resident in Scotland, Great Britain.

[…]

4. An Order pursuant to the inherent jurisdiction of this Honourable Court and/or Article 20 of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, permitting the Child and Family Agency to remove the Minor from his current placement in this jurisdiction and place the Minor into the care of Dundee City Council’s Children’s Services in Scotland, Great Britain.

5. An Order permitting the Child and Family Agency to take all necessary steps for the purpose of implementing the transfer of the Minor from Ireland to Scotland.

6. An Order permitting the Child and Family Agency to liaise with the Irish Central Authority and/or the Central Authority for Scotland with regard to the circumstances of the Minor.

7. An Order lifting the in camera rule for the purposes of permitting the Child and Family Agency to convey any necessary information and reports relevant to any proceedings in Ireland in respect of the Minor, to Dundee City Council’s Children’s Services in Scotland and/or the Central Authority for Scotland and/or the Courts of Scotland, for the purposes of sharing information relating to the said Minor.”

14. The Court of Appeal vacated the orders of the High Court which permitted the CFA to remove K. from his placement in Ireland and to place him in Scotland. The Court of Appeal ordered as follows:-

“IT IS ORDERED that the appeal be allowed and that the said Order of the High Court be varied by vacating the following provisions of the said Order

• Permitting the Child and Family Agency to remove the Minor from his current placement in this jurisdiction and place the Minor into the care of Dundee City Council Children’s Services in Scotland.

• Permitting the Child and Family Agency to take all necessary steps for the purpose of implementing the transfer of the Minor from Ireland to Scotland.”

“

(i) The interpretation and operation of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, applies to children who are the subject of care proceedings and has wide reaching implications for them and for the protection of their best interests.

(ii) Prior to the decision of the Court of Appeal, the function under Article 17 of the Regulation had been exercised by the High Court. The Court of Appeal interpreted Article 17 as placing a mandatory obligation on the District Court as the court “seised” of proceedings under the Child Care Act 1991 to exercise the function under Article 17 by conducting enquiries in relation to jurisdiction under the Regulation and making the requisite declaration if applicable. This fundamental change as to which court should exercise the functions under Article 17 will have far reaching consequences and it is therefore important that there should be certainty and finality either that this is the correct interpretation of Article 17 and of the Regulation or that Article 17 and the Regulation should be interpreted in a manner that allows the domestic procedural law in each Member State to determine which court should make the relevant declaration.

(iii) Prior to the decision of the Court of Appeal, the jurisdiction relied upon to effect a transfer of a child in respect of whom a declaration was made under Article 17 was Article 20 of the Regulation and/or the inherent jurisdiction of the High Court. The Court of Appeal vacated orders made in this respect by the High Court and stated that orders in aid of foreign proceedings should be considered to exist pursuant to the “Recognition and Enforcement” provisions of the Regulation rather than under Article 20. The Applicant/Appellant anticipates that this will give rise to difficulties in seeking to transfer a child to another Member State, particularly if this jurisdiction is to be exercised by the District Court, which is a court of local and limited jurisdiction. There is therefore a need to consider the means by which a child may be transferred to another Member State on foot of a declaration being made under Article 17.”

17. The CFA is not seeking a declaration of unconstitutionality, or a declaration of incompatibility with the European Convention on Human Rights, or that this Court depart from one of its own decisions, nor that there be a reference to the Court of Justice of the European Union.

18. The CFA sought a priority hearing on the basis that there is a need for certainty in the manner in which Article 17 is interpreted and applied in Ireland.

Notice Party

19. K. appeared by his guardian ad litem, Ruth More O’Farrell, the notice party, and was legally represented. He is referenced as “the notice party”.

20. The notice party does not oppose the application for leave to appeal.

21. The notice party asks this Court, if leave to appeal is granted, to dismiss the appeal in part.

22. The notice party asks that the decision of the Court of Appeal be held to be correct insofar as it decided that the District Court, as the Court seised, was entitled and indeed obliged to determine pursuant to Article 17 of Council Regulation No. 2201/2003, whether it had jurisdiction to hear the application brought by the CFA in that court. The appeal against that portion of the decision should be dismissed, the notice party has submitted.

23. It was further submitted that the decision of the Court of Appeal was incorrect insofar as it determined that the High Court pursuant to its inherent jurisdiction could only order the return of a child to the place of his or her habitual residence if the courts of that place had made a prior order directing his or her return. The notice party submits that the appeal against that portion of the decision should be allowed.

24. The notice party filed the following in relation to the application for leave to appeal:-

“(i) The [notice party] does not oppose the application for leave to appeal.

(ii) It is accepted that the interpretation and operation of the Regulation involves significant consequences in respect of the welfare interests of minors.

(iii) The decision of the Court of Appeal concerns two main issues.

(iv) The first concerns the correct meaning and application of Art. 17 of the Regulation.

(v) That issue affects all cases in the District or Circuit Court whether of a private law or public law nature where jurisdiction is alleged to arise under the Regulation.

(vi) The general public importance of the issue is evidenced by the fact that the decision of the High Court at first instance on that issue had given rise to two consultative case stated from the District Court prior to the Court of Appeal decision overturning the High Court decision.

(vii) If the [CFA] is correct in its interpretation of Art 17 (which the Notice Party contests) then the lower courts are regularly carrying out examinations in regard to jurisdiction pursuant to Art 17 in reliance on the Court of Appeal decision even though they have no power or authority to do so.

(viii) Given the statutory functions of the [CFA] in regard to the care of children pursuant to the Child Care Act 1991, as amended, it would appear to be in the interests of justice that its appeal against the decision of the Court of Appeal should be determined by the Supreme Court.

(ix) The second issue is the extent of the jurisdiction of the High Court to order the return of a child to the jurisdiction of his or her habitual residence pursuant to Article 20 of the Regulation and the inherent jurisdiction of the Court.

(x) That issue has been the subject of a recent judgment of the Supreme Court in CFA v. RD [2014] IESC 47.

(xi) The decision of the Court of Appeal misinterprets and unduly narrows that decision.

(xii) The effect of the Court of Appeal decision will make it more difficult to protect the best interests of a child where those best interests require that he or she be returned to the country of habitual residence.

(xiii) In such circumstances it is the interests of justice to have the appeal in regard to this issue determined by the Supreme Court.

(xiv) Further the question of the correct interpretation of the extent of Article 20 and the inherent jurisdiction is a matter of general public importance which affects a significant number of children.”

“Freedom of movement entitled my son and I to move to Ireland in November. There were no proceedings against at that time. Just another lot of lies from unqualified, bitter social workers, following my complaints against them.”

“(i) Freedom of movement entitles my son and I to move to Ireland when we did last year.

(ii) Reason for move was to better my sons life, take him out a substandard school, where he was victim of horrendous physical bullying,

(iii) Social work never involved with my care of [K.] before he started primary school.

(iv) [K.] is a 7 year old autistic boy, who has NEVER been separated from his capable, loving mother before. The emotional abuse social work have inflicted on him and me since November is beyond barbaric. 3 foster homes since November? And social work stopped contact for a year with son and mum, purely because he told me horrific stories of his horrific foster placement?? He is not thriving in his placement. I haven’t seen him since May!! I know [K.] better than any8one (sic), he is NOT thriving, but suffering hugely, been cruelly separated from his loving mother since November.

(v) The opinion of the child in care has to be taken into consideration, sadly, yet again, my boy’s voice and views get ignored by unqualified social workers, who have NO experience of autism. [L.W] admitted in district court in Dublin, she was no expert on autism, and that [K.] had tried to discuss bullying issues with her before. Sadly NO professional in Dundee does take bullying seriously, and as a degree educated mother, I have a legal right to decide how my son gets educated. Due to the sub standard levels of education for autistic children in Dundee, I choose to withdraw my son, from that school, through the correct procedures.

(vi) Unlike social workers, I can back my actions up with lots and lots of real evidence to prove how bad his current school is social workers are cruelly forcing back into.

(vii) The emotional abuse caused by social workers on my son and I, will unfortunately never be repaired.”

“(i) We were not subject to care proceedings. Social work have to exhaust all other remedies first before stealing a child and removing from perfectly good environment, again, social workers in Dundee failed to that also. Huge breach of their guidelines.

(ii) I had not been served with proceedings prior to us moving in October 2014.

(iii) On what grounds did an EPO get granted? Ive still to see any evidence that I abused my son, again, im not allowed to see any, cause its non existent.

(iv) Under European Convention, everybody has the right to choose where they reside. Why doesn’t this apply to myself and my son?? ”

28. The interpretation and operation of Council Regulation (EC) No. 2201/2003 of 27 November 2003 applies to children and has significant implications for them, and in the circumstances of this case involves a matter of general public importance.

29. The interpretation of Article 17 of the Regulation, and its application to the courts, and to which court, requires certainty and finality as a matter of general public importance.

30. The means by which a child may be transferred to another Member State on foot of a declaration being made under Article 17 requires clarity and in the circumstances of this case is a matter of general public importance.

31. The extent of the inherent jurisdiction in relation to the return of a child to the place of his or her habitual residence requires clarity, and in the circumstances is a matter of general public importance.

32. The applicant has raised points of substance for the jurisdiction of this Court. Several matters of general public importance, as set out, have been raised. In the circumstances, the Court determines that it is in the interests of justice that there be an appeal to this Court. The Court is satisfied that the constitutional threshold for leave to appeal to this Court has been met.

33. The Court grants leave to the applicant to appeal to this Court from the decision of the Court of Appeal delivered on the 29th April, 2015, on grounds identified herein and which will be specified further at a directions hearing.

And it is hereby so ordered accordingly.