Cobb J examines law and procedure of BIIR in order to transfer jurisdiction
A recent case in the High Court – Re LM (A Child)  EWHC 646 (Fam) – has demonstrated the effective use of Brussels IIR to effect a transfer of jurisdiction, with the approval of parties, from the Republic of Ireland to England.
A mother in the late stages of pregnancy with her fourth child travelled to the republic of Ireland with her husband and gave birth a month later. The mother had fled to Ireland to prevent her child being taken into care by the X County Council which was responsible for the mother’s three older children, who had been the subject of care proceedings and lived away from the mother.
After the child (LM) was born, Irish care proceedings were initiated and she was removed from her mother and placed in foster care. After a short while the parents returned to England and did not see their daughter for four months. The mother moved to the area of Y County Council and sought a transfer of the proceedings to the English court and a return of the child to its jurisdiction. The Irish court held that it was in LM’s best interests for proceedings to be transferred to the courts of England and Wales and a request was made (pursuant to Art 15(1)(b) of BIIR) by the High Court in Dublin that the courts of England and Wales accept jurisdiction.
The English Court accepted that a transfer of jurisdiction was in LM’s best interests. The court was also asked to determine which local authority in England should take responsibility for LM: X County Council, the authority for the area in which the child’s half siblings had been the subject of care proceedings; or Y County Council, the authority for the area where the mother was now resident. Cobb J in the High Court ruled that the circumstances of M’s older children formed the essential factual foundation of public authority intervention in Ireland and the authority where those facts arose would be the appropriate authority to be responsible for LM’s case, and not the local authority into which the mother had relocated. The Irish court and Health Service Executive of Ireland were directed to liaise with the local authority to effect a transfer of the child in accordance with Art 56 of BIIR.
“This is an important judgment in the use of BIIR to transfer jurisdiction from one country to another; Mr Justice Cobb examines carefully both the law and procedure in these cases. He expressed particular concern about the futility and potential damage to a child of the parents leaving this jurisdiction to avoid public authority intervention in their lives. He noted that the case served to underline the effective co-operation both between the courts and the public authorities of each jurisdiction.”
Henry Setright QC of 4 Paper Buildings and Alex Ruck Keene of 39 Essex Street (instructed by Bindmans LLP) represented the Health Service Executive of Ireland. The mother and father appeared in person. Diane Campbell of Dere Street Barristers (instructed by the county solicitor) represented X local authority. Gwynneth Knowles QC of Atlantic Chambers (instructed by the county solicitor) acted for Y local authority.
For the judgment, and a fuller summary by Alison Easton of Coram Chambers, please click here.
SOURCE: Family Law Week