On 12th April 2018 Mr Justice Francis gave judgment in the case of CFA (Ireland) v F  EWHC 939 (Fam) (12 April 2018).
This is a case about parents ‘fleeing’ from the UK to Ireland in an attempt to avoid child protection proceedings here. I have written before about this phenomenon and the dangers it can pose to parents and children. See ‘Helping Parents leave the Jurisdiction’ first published in September 2015 and ‘Mums on the Run’ first published in September 2016.
This current is case is another illustration of the futility of this strategy.
I would be interested to know who helped the parents in this case leave the jurisdiction and what interest or investigation – if any – they made into what is described as the ‘extremely complicated’ background of the mother.
If previous cases are any guide, they made none because they don’t see this as relevant – the only goal is to get parents out of the ‘clutches’ of the evil child snatchers. It seems that the issue of ‘mums on the run’ is gaining increasing prominence. The influence of certain individuals such as John Hemming and Ian Josephs in the continued encouragement of this often futile endeavour, needs to be taken much more seriously by all those charged with securing the welfare of children.
Josephs is quite clear that he gives money to parents without any check or even concern about what challenges and traumas they have faced which might impact on their ability to provide safe care for a child. The most notorious example of this is of course Marie Black – a convicted paedophile who Josephs helped travel to France before her trial and conviction.
I have commented over the years that it is going to take a child to die before anyone takes this seriously. I really hope I am wrong about that.
Facts of this case and the court’s decision
CFA involved a child F, who was born in late 2017 and at the time of the court hearings was living in foster care in Ireland. Her parents had travelled from the UK to Ireland when the mother was pregnant with F and another sibling was in the care of an English local authority. The issue was now which country should decide where F should live as she was growing up.
Article 15 of the Brussels II regulations sets out the procedure the courts need to follow when transferring these cases.
Article 15(1) provides:
“By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:
The matter had first come before Judge O’Leary in Ireland on 8 January 2018 and she granted the Article 15 request to transfer. The parents appealed and it came before HHJ Donnabháin on 6 February 2018 who confirmed that earlier decision. The matter then came before the English courts. In February 2018 MacDonald J agreed with the Irish courts.
MacDonald J allowed the mother and father the chance to argue about why this shouldn’t happen and the parents put their arguments in writing and appeared before Francis J. After some confusion about whether the parents were physically in Ireland and attempting to challenge decisions made there, the hearing got underway but required considerably more time than the hour which it had optimistically been allowed.
Francis J was clear that factual background of the parents ‘fleeing’ was not relevant to the decision he was now making and he didn’t hold it against the parents ‘as a black mark’. He recognised that the Irish judgments contained some very important information and he cited it at some length. He found that the Irish courts had give very clear reasons as to why F’s case should be transferred.
HHJ Donnabháin had found that F has ‘a UK nationality and identity.’ Further, the mother’s circumstances also raised concern. At para 5 he said:
This lady’s background [by which he means the mother] is extremely complicated and requires the fullest access to all the medical, psychiatric, and social work reports which exist. These reports can only be ultimately relied upon to be produced in the United Kingdom and they are of fundamental importance to informing any court decision regarding the child’s welfare.”
And at para 13 he said:
I should say that it is obvious to me from the background that I have read about this case that the mother is entitled to the court’s greatest sympathy and understanding for she has had, it is undoubtedly true, an extremely difficult, troubled, and traumatic time. I need say no more about that for the purposes of this judgment but it is important to her that she knows that it is acknowledged by me when giving this judgment.
Francis J reminded himself of the observations of the President of the Family Division in Re HJ (A Child)  EWHC 1867 (Fam) which commented that transfer requests were effectively a ‘summary process’ – to go into the merits of the case in any great detail would risk protracted and costly battles as to which is the correct jurisdiction. So the transfer decision must be made swiftly and what really matters in this case is the decision that will be made in due course by the court deciding where F should live as she grows up.
The proposed transfer must be in the best interests of the child and Francis J found that the Irish courts had already made that assessment and found the transfer would be positively beneficial.
The parents’ arguments against transfer
The parents argued they are settled in Ireland and want to be assessed there. However the Judge responded that transferring the case to England would not prevent the parents being assessed in what they say is now their home country and he did not see this as a determinative feature.
Of more importance was their argument that if F came to England that would make it more difficult for them to see her. However, the Judge commented that there was nothing to stop the local authority, if they obtained an interim care order for F, to allow her to stay in the interim care of her current foster carers in Ireland: ‘There is nothing particularly unusual about that. Indeed, Schedule 2 of the Children Act 1989 specifically provides for such placement’.
F’s guardian in Ireland made it clear shat F should not be moved in the interim and Francis J agreed.
…I am not saying that it would mean that there could not ever be a change of interim care, but it seems to me that a change of interim care is almost always to be avoided in these cases if the interim care is satisfactory. As far as I can see here, it is not just satisfactory but extremely good interim care that F is currently enjoying. However, there is no reason for me to think that the acceptance of a transfer request would alter the possibility of F continuing to be with her Irish foster carers.
The Judge however rejected the parents’ arguments that it would be contrary to F’s best interests to endure a short journey from Ireland to England and further comments that if F did end up living in England then the parents could be helped to travel to see her, at least in the short term.
He concluded at para 33:
I am completely satisfied that it is in F’s best interests for this case to be transferred to England. Moreover, the principles of comity require that I should have very considerable respect and regard for the Irish order, which I do, albeit that I am of course not bound to accept the request. However, having applied, I hope properly, the test which is set out in Article 15(5) and its interpretation by recent case law, I am completely satisfied that this court should accept the request and I now do so.
A case in August 2018 where an Advocate General of the European Court of Justice was highly critical of the actions of both the English and Irish authorities, who organised the removal of children from Ireland without the parents knowledge and without them having sight of the English LA’s application to enforce orders for removal. See this post from The Transparency Project.
The Irish courts have also commented critically, as reported by the Irish Examiner:
Irish social workers must “stop immediately” the practice of acting in conjunction with their UK counterparts in seeking the return to Britain of children at the centre of care proceedings without the parents’ knowledge of that application, the Court of Appeal has said.
If it does not stop, social workers could face contempt of court proceedings, Mr Justice Gerard Hogan said. He also expressed the “deepest misgivings” about the conduct of Irish and English social workers in one such case.
However In Lincolnshire County Council v J.MCA & anor  IEHC 514 (25 September 2018) the Irish court ordered the return to England of a child removed by her parents after the making of interim care orders; following mistaken advice from a McKenzie Friend in England that the father’s ‘parental rights’ permitted them to do this.
Part of the parents’ arguments against return was that their English lawyers had not ‘fought’ for them and the English courts had made the wrong decisions. The Irish court pointed out that the decisions so far of the English courts were interim decisions only. They said this about the parents’ challenge to the English court system at para 39 of the judgment:
…the respondents have in substance made an allegation that the English courts are unwilling to protect their rights or those of the child. This allegation has been made without any supporting expert evidence or any affidavit from the lawyers who represented the respondents in the English courts or any evidence other than the opinion of the respondents. I have no hesitation in rejecting the submission. The respondents were afforded legal representation before the English court; appropriate hearings were conducted; a doctor gave evidence and was cross-examined; future hearings were being planned; this was all done in a similar fashion to how adversarial proceedings are carried out in Ireland. Further, the interim arrangement was in my view a humane one, involving the child being placed with her grandmother and the respondents being permitted three access visits per week. There is no evidence at all to suggest that the English courts are unwilling to protect the child’s rights or those of the respondents. In reality all that is offered is the respondents’ personal view that the doctors and the court were wrong in their diagnosis and that they were being treated unfairly by the courts. They could have advanced their case vigorously if they had stayed for the full hearing; and it can be done on their behalf at any future hearing, with appropriate evidence …