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 SHORT ARTICLES AND COMMENTS

RECENT DEVELOPMENTS CONCERNING TRANSFER

OF CHILD CARE PROCEEDINGS UNDER BRUSSELS II
REVISED

Determination of child abduction disputes under the mechanisms provided by

Council Regulation 2201/2003 of November 27, 2003 concerning jurisdiction
and the recognition and enforcement of judgments in matrimonial matters
and the matters of parental responsibility ("Brussels II Revised") has become
a familiar feature of the Irish legal landscape in recent years.' However, the
procedure for transferring proceedings to another Member State pursuant
to art. 15 of Brussels II Revised has only recently required consideration,
particularly in the context of transfer of child care proceedings. 2 This article
seeks to explore the grounds on which a court may transfer child care
proceedings to another Member State on foot of art. 15 of Brussels II Revised
and to review a number of recent decisions on this important issue.

BRUSSELS II REVISED

Article 8 of Brussels II Revised sets out the general rule regarding jurisdiction
as follows:

1. The courts of a Member State shall have jurisdiction in matters of

parental responsibility over a child who is habitually resident in that
member state at a time the court is seised.

However, by way of exception from this general rule, art. 15 provides for a
mechanism whereby a court which would otherwise have jurisdiction in
accordance with art.8 may nonetheless request the courts of another Member
State to assume jurisdiction on the basis that the courts in that Member State
are "better placed to hear the case". Article 15 provides:

1. 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

1. See, for example, Shannon, Child Law, 2nd edn (Dublin: Round Hall, 2010), pp.135-
153 and 613-617; and Kilkelly, Children s Rights in Ireland: Law, Policy and Practice
(Dublin: Tottel, 2008), pp. 167-200.
2. Indeed, it would seem that art. 15 in general has received relatively little consideration to
date across the EU; the first preliminary reference to the Court of Justice of the European
Union concerning this provision was made by the English Court of Appeal in August
2013, in E. v B. (C-436/13).

181
182 Short Articles and Comments

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:
(a) stay the case or the part thereof in question and invite the parties to
introduce a request before the court of that other Member State in
accordance with paragraph 4; or
(b) request a court of another Member State to assume jurisdiction in
accordance with paragraph 5.

A request for transfer of proceedings pursuant to art. 15 can be made by any

party to the proceedings, on the court's own motion (provided at least one of
the parties consents), or at the request of a court of another Member State with
which the child has a particular connection (provided at least one of the parties
consents).' Article 15(3) sets out five circumstances in which a "particular
connection" to another Member State will be established, namely, where that
Member State:

(a) has become the habitual residence of the child after the court referred
to in paragraph I was seised; or
(b) is the former habitual residence of the child; or
(c) is the place of the child's nationality; or
(d) is the habitual residence of a holder of parental responsibility; or
(e) is the place where property of the child is located and the case
concerns measures for the protection of the child relating to the
administration, conservation or disposal of this property.

Article 15(4) provides that the court of the Member State which has jurisdiction
in respect of the substance of the matter may set a time limit within which the
courts of the other Member State shall be seised in accordance with para. L
Furthermore, art. 15(5) provides that the courts of the other Member State
may accept jurisdiction within six weeks where satisfied that this is in the best
interests of the child. In this case, the court first seised shall decline jurisdiction.
Otherwise, the court first seised shall continue to exercise jurisdiction in
accordance with arts 8-14 of the Regulation.

RE L.M (A CHILD)

It would appear that the first case involving a transfer of child care proceedings
from Ireland pursuant to art. 15 was made by the High Court (Birmingham J.)
in December 2012. There is no written judgment available in respect of this
decision, possibly because the request for transfer was made on consent.
However, the High Court of England and Wales delivered a judgment in
respect of the acceptance of that transfer in Re L.M (A Child),' which sheds
3. Art.15(2).
4. [2013] EWHC 646 (Fam.); [2013] 3 W.L.R. 1463.
 Short Articles and Comments 183

some light on the background to the case, including the decision of the High
Court in this jurisdiction.
Cobb J. outlined the facts in the case, which were that the mother and
father travelled to Ireland while she was in an advanced stage of pregnancy.
The mother had three older children, all of whom had been taken into care in
England. The mother gave evidence that her express intention in travelling to
Ireland was "to avoid my child being stolen" by the local authority which had
taken her three older children into care. Upon the birth of the baby in July 2012
in Ireland, she was taken into care by the HSE and placed in foster care. The
mother and father left Ireland in November 2012, and the mother subsequently
applied for transfer of the child care proceedings concerning her baby to the
courts of England and Wales pursuant to art. 15. Cobb J. noted that all parties
consented to the transfer of those proceedings. He was satisfied that the criteria
for transfer of proceedings pursuant to art. 15 were met, and that such transfer
was in the best interests of the child.' On this basis, he accepted the request
to transfer the proceedings and went on to address the legal and practical
complications that arise when seeking to achieve a transfer of jurisdiction in
these circumstances. 6
The decision of Cobb J. also contained a stark warning for other parents
contemplating similar action:

"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 27th November 2003 ... where it is demonstrated to be in
7
the interests of the child to do so."

As the request for transfer of proceedings was made with the consent of all
parties, neither the Irish nor English courts were faced with any significant

5. Cobb J. expressly addressed the issue of the role of the court which has been requested to
accept a transfer of proceedings (at paras 35-38), concluding that his function was not to
conduct a full reconsideration of the case, but rather was more limited to a consideration
of whether acceptance of the transfer of proceedings was in the best interests of the child.
6. For example, the decision of Cobb J. referred to co-ordination and co-operation between
the judiciary and public authorities in Ireland and England and Wales in relation to the
effecting of the transfer, as well as matters of English law concerning the local authority
which was to be responsible for the child care proceedings once transferred.
7. At para. 1466.
184 Short Articles and Comments

disputes as regards the transfer. However, since the decision in L.M., a number
of further applications for transfer of proceedings have been heard by the Irish
courts, in which the parents disputed the transfer of proceedings, requiring both
the High Court and Supreme Court to engage with more difficult questions in
this context.

HEALTH SERVICE EXECUTIVE v L. G.

The facts in Health Service Executive v L.G.' were similar to those in Re L.M
in so far as the English mother had travelled to Ireland at an advanced stage of
pregnancy with the apparent intention of frustrating plans by her local authority
in England to institute care proceedings in respect of her child once born. One
day after the birth of the baby, the HSE obtained an emergency case order for
a period of eight days, and thereafter interim care orders were granted by the
District Court in respect of the baby pursuant to the Child Care Act 1991. But,
unlike Re L.M, the parents in L.G. did not consent to the application by the
HSE for transfer of the child care proceedings pursuant to art. 15 of Brussels
11 Revised. Birmingham J., who gave judgment, was therefore required to
determine whether the court should make an order transferring the child care
proceedings in this jurisdiction to the courts of England and Wales.
In addressing, firstly, the requirement that the child have a "particular
connection" to England and Wales, Birmingham J. was satisfied, on the basis
both of the child's nationality and the fact that England was the habitual
residence of his mother, that the particular connection test was satisfied. The
judge then proceeded to consider whether the courts of England and Wales
were best placed to hear the case. In this regard, he noted that two older
children born to the mother had been placed in care in that jurisdiction and that
"very considerable information about this family unit was assembled in the
course of the earlier care proceedings" which would be available to the English
courts.' It was also noted that there were a number of relatives in England who
had indicated their willingness to be assessed as potential carers. Furthermore,
Birmingham J. took into account the fact that the child had no real connection
with Ireland other than as the place of his birth, which came about "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".' For all these reasons, he concluded that the
courts in England and Wales were better placed to hear the case. Finally, the
court addressed the best interests of the child. In what was arguably somewhat
circular reasoning, Birmingham J. observed 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".1 Having already found that the courts best positioned in this case were

8. [2013] IEHC 297.

9. At para.20.
10. At para.20.
11. Atpara.21.
 Short Articles and Comments 185

the courts of England and Wales and, further, noting the possibility of the child
having contact in the future with his siblings and extended family members
who resided there, Birmingham J. was satisfied to make a request to the courts
in England and Wales to assume jurisdiction.
In Re H.J., Munby J. delivered a judgment in which he accepted the request
for transfer on the basis that it was in the best interests of the child.1 2 Munby J.
also made some interesting comments on the need to ensure a swift resolution
of such proceedings. These touched on the procedures which in his view ought
to be adopted by the court making the request for a transfer:

"... [I]t 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 BilR 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."13

Munby J. suggested that "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", and went on to suggest that there was no automatic
reason for the court in the requested State to conduct hearings in every case
as to whether it should accept jurisdiction. Thus, Munby J. considered that
"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"."

HEALTH SERVICE EXECUTIVE v MW

The most contentious case decided by the Irish courts to date pursuant to art. 15
is undoubtedly that of Health Service Executive vM WI The facts again mirror
to a large extent those in earlier cases. The defendants travelled to Ireland when
the mother was at an advanced stage of pregnancy. Shortly after the child was
bom, as a result of contact between the HSE and the relevant local authority

12. [2013] EWHC 1867 (Fam.). The decision of Munby J. is also noteworthy in so far as
he strongly endorsed the "masterful" decision of Cobb J. in Re L.M. on the scope of
application of art. 15 in such cases and the duties of the courts of the requested State
being limited to a consideration of the best interests of the child.
13. At para.9.
14. At para.9.
15. [2013] IEHC 280; [2013] IESC 38; [2013] 2 I.L.R.M. 225.
186 Short Articles and Comments

in England-which revealed that the mother had previous contact with social
services in that country and that she had three older children, all of whom had
been removed from her care-the HSE obtained orders pursuant to the Child
Care Act 1991, taking the child into care. The HSE subsequently applied to the
High Court for an order transferring the proceedings to the courts of England
and Wales pursuant to art. 15, which application was strenuously opposed by
the mother. The two principal objections that appear to have been raised on
behalf of the mother were, firstly, that art. 15 could not apply to the transfer of
public law proceedings including child care proceedings and, secondly, that
the transfer of the proceedings would breach the rights of the mother under
EU law and, in particular, her right to freedom of movement, by operating
as an impermissible coercive mechanism which would change the habitual
residence of the child without the consent of her mother and, as a consequence,
would force the mother to return to England and Wales against her wishes.
Both the High Court and Supreme Court dismissed these objections and held
that the courts of England and Wales should be requested to assume jurisdiction
pursuant to art. 15.
In relation to the applicability of art. 15 to public law/child care proceedings,
it was, at root, submitted on behalf of the mother that what was being sought
was not in fact a transfer of proceedings at all, given that the circumstances were
such that the same parties would no longer appear and that the local authority
in England and Wales would be required to commence fresh proceedings under
English child care law. This argument was summarised by Mostyn J. in the
High Court of England and Wales in In Re T (A Child) (Care proceedings:
Request to assumejurisdiction)'6 in the following terms:

"The difficulty is that the wording of Art 15 would suggest that the
transfer is made so that the very same parties may litigate as parties the
same lis in another EU jurisdiction. But by its very nature in a public law
case the parties will alter if there is such a transfer.""

Cobb J. implicitly acknowledged this argument in his decision in Re L.M

when summarising the issues requiring determination. The question which for
him arose was the following:

"... [H]ow should the transfer be effected to the Courts of England and
Wales (given that there are no currentproceedings here and the child is
not physically present here?"" (Emphasis added.)

However, both Mostyn J. in Re T and Cobb J. in L.M were satisfied that

transfer of child care proceedings was capable of coming within the ambit of
art.15, and this was the approach ultimately preferred by both the High Court
and Supreme Court in M W. Both the High Court and Supreme Court in M W

16. [2013] EWHC 521 (Fam.); [2013] 2 W.L.R. 1263.

17. Atpara.1271.
18. [2013] EWHC 646 (Fam.); [2013] 3 W.L.R. 1463 at para.28.
 Short Articles and Comments 187

were satisfied that a purposive construction of art.15 of Brussels II Revised,

which is concerned with the welfare and best interests of children, could not
permit the exclusion of public law proceedings, as to hold otherwise would
diminish the effectiveness of the Regulation. 9 It is perhaps notable that whilst
MacMenamin J. cited the decisions of the Court of Justice of the European
Union (CJEU) in C.20 and Health Service Executive v S.C.2 1 in support of this
conclusion, neither of these judgments specifically concerned art. 15 of the
Regulation. While the policy concerns of both the English and Irish courts
is to discourage parents from effectively fleeing to another Member State in
advance of the birth of a child in the "futile hope" of avoiding care proceedings
in respect of such children, it is respectfully submitted that it is not entirely
clear that such concerns properly fall within the ambit of art. 15 in its current
form. It may, therefore, be that this is a question which will ultimately require
to be addressed either by CJEU or the EU legislature.
The second ground of objection raised in M W, namely the breach of the
EU law rights of the mother, including her rights to free movement, does
not appear to have been expressly considered by the High Court.22 In the
Supreme Court, MacMenamin J. accepted that free movement of persons was
a fundamental right protected by EU law, and referred to a range of measures
adopted under EU law to govern the interaction between this right and family
law proceedings, including Brussels II Revised. In a somewhat terse statement,
MacMenamin J. dismissed the mother's objection on this ground, stating:

"It is simply not possible to juxtapose the right of free movement and the
Regulation as if they were in some way in conflict. They are in fact the
opposite sides of the same coin. The Regulation arises as a consequence
and facilitates the right of free movement of workers and citizens. It is
part of the policy which regulates free movement itself."23

The reasoning underlying this conclusion is somewhat opaque, and it is

unfortunate that the Supreme Court did not give further consideration to this
issue. It is submitted that there was a prima facie conflict between the mother's
free movement under EU law and the decision to transfer the child care
proceedings concerning her child to England and Wales, given the mother's
status as a worker in this jurisdiction and her stated intention to remain here. In
those circumstances, a more nuanced approach based on a balancing of rights
or proportionality assessment would have been preferable.

19. See para.5 of the decision of Birmingham J. and paras 20-21 of the decision of
MacMenamin J. (with whom Denham C.J. and Clarke J. concurred).
20. (C-435/06) [2007] E.C.R. 1-10141.
21. (C-92/12) [2012] 2 F.L.R. 1040.
22. Other than a very brief reference at para.9 of the judgment of Birmingham J. in the
context of the "particular connection" test; however, this reference appears to relate to
the applicability of free movement principles to the child, and does not expressly refer
to the more substantial issues concerning the mother's rights to freedom of movement
as a worker in the State.
23. At para.17.
188 Short Articles and Comments

Having rejected the primary objections raised by the mother in respect of

the transfer, the Supreme Court reviewed and upheld the High Court findings in
respect of each of the elements required under art. 15. Both courts were satisfied
that the child had a "particular connection" with England and Wales both by
reason of her status as a British citizen (notwithstanding her simultaneous
entitlement to Irish citizenship) and also as the habitual residence of the child's
father. It is worth noting the comments of MacMenamin J. in this context:

"One cannot simply ignore here the reason why the mother arrived in
Ireland. It was not for a specific work related reason. She informed
hospital staff in Ireland that she had moved here to start a new life with
the child she was expecting. Prior to moving here, she expressed views
to the effect that she wished to remove herself from the supervision of the
English social services. If a person removes themselves from a member
state to another in order to avoid the effect of the previous interaction
with social services and the court system of that member state, can it
truly be said the person has established habitual residence in the host
member state?"24

Both the High Court and Supreme Court were also satisfied that the courts of
England and Wales were best placed to hear the proceedings, having regard
to the mother's extensive prior dealings with law enforcement agencies and
social services in that jurisdiction. As Birmingham J. stated:

"Apart from the experts who prepared reports and gave evidence in the
childcare and criminal proceedings there are childcare workers, social
workers, local authority personnel, teachers and probation officers, who
are likely to be in a position to offer relevant evidence. How many of
these will be required to give evidence is impossible to say. It must be
stressed this is not a case of witnesses as to fact that may be required
to deal with a single incident or a small number of clearly identifiable
professional witnesses being required to give evidence. If that was the
case, then it might well be realistic to bring them to Ireland to give
evidence or to arrange for the taking of their evidence by video link.
Rather, there is a body of potential witnesses, some as yet unidentified,
who may be required to give evidence."25

MacMenamin J. upheld these conclusions and, in addition, approved the

following statement by Birmingham J. on the appropriate test to be applied
in determining whether the courts in another member state are best placed to
hear the case:

24. At para.23. This finding might have offered a more solid grounding for the court's
conclusions on the free movement issue, although it would perhaps have required
the court to engage with the difficult concept of abuse of rights as considered, e.g., in
Secretary of State/for the Home Departmentv Akrich (C-109/01) [2003] E.C.R. 1-9607.
25. At para.23.
 Short Articles and Comments 189

"... [I]f an individual has never had any relevant contact with the legal
system or with social services, then one court is as likely to be as well
positioned as another to deal with the matter. Conversely, if an individual
has an intense engagement with the legal system and social services of
a particular area or State over a prolonged period, there would appear to
be real advantages in having the courts close to that area deal with the
matter."2 6

Finally, both the High Court and Supreme Court were satisfied that it was in
the best interests of the child that the proceedings be transferred to the courts of
England and Wales. Although both courts acknowledged the somewhat difficult
balance required to be struck in this context, having regard to the mother's
stated intention of remaining in Ireland, which would therefore potentially limit
future contact with her child should that be deemed appropriate, Birmingham
J. was ultimately satisfied that "it is clearly in the best interests of L. that
these decisions be taken by the court in the best position to do so".27 These
conclusions were accepted on appeal by MacMenamin J.

CONCLUSIONS

It is not difficult to appreciate the concerns of both the public authorities

charged with child protection in Ireland and England, and of the courts in both
jurisdictions, in the light of the apparent recent trend of parents seeking to avoid
impending child protection proceedings by relocating to another jurisdiction
before the birth of a child.28 However, it is important that such legitimate
concerns are met with not only a robust, but also a legally grounded, response.
As noted above, on one view, some questions remain about the applicability
of art. 15 of Brussels II Revised to public law/child care proceedings, and the
question of striking the correct balance between transfer of proceedings and
the right to freedom of movement may yet require further evaluation.

PatriciaBrazil
Trinity College Dublin

26. At para.32.
27. At para.27. Other factors relied on by Birmingham J. in support of this finding included:
the possibility of identifying a placement for the child amongst her extended family in
England; the potential for future contact with her older siblings who were already in care
in that jurisdiction; and the broader range of options available to the courts in England in
the child care context, including the possibility of adoption.
28. Indeed, it is remarkable to note that Cobb J. in Re L.M [2013] EWHC 646 (Fam.) at
para. 10 suggested there was an orchestrated campaign advising parents to adopt this
course of action in some cases.