RSS Feed

“If you ever go across the sea to Ireland”

 A discussion of two cases dealing with parents who fled to Ireland to avoid pending care proceedings. We are having a curious burst of the Higher Courts dealing with similar issues coincidentally in batches, and this is another example.

The longer judgment is in  Re LM (A Child) 2013, a High Court decision determined by Mr Justice Cobb

 http://www.bailii.org/ew/cases/EWHC/Fam/2013/646.html

and the shorter is a Court of Appeal decision

 Re OC and OE (Children) 2012 

 http://www.bailii.org/ew/cases/EWCA/Civ/2013/162.html

 

In the Court of Appeal case, the Local Authority had concerns about the children, though probably not sufficient to warrant removal, and the mother fled to Ireland with them. The LA sought Interim Care Orders and a return to the jurisdiction. The Court of Appeal agreed that the English Courts had jurisdiction and that making orders compelling the return of the children to the jurisdiction was correct, but reminded themselves, that the status quo prior to the move to another country ought to be restored, and that the Judge had erred in making Interim Care Orders and sanctioning removal of the children in the absence of (a) the parents being there to oppose and (b) the LA demonstrating that the grounds for removal were made out.

 

I felt for the LA lawyer,  “their advocate frankly conceded to the judge that he was not operating in legal territory familiar to him”   and of course, LA lawyers don’t tend to be specialists in international law. If we were, we would wear much more expensive shoes, and work shorter hours.

 The Re LM case is probably more interesting.  Justice Cobb sets out the background here

 

  1. In June 2012, AM (hereafter “the mother”), then in an advanced stage of pregnancy, travelled with her husband, MM (hereafter “the father”) to the Republic of Ireland. In the following month, she gave birth to a baby girl (“LM”). LM is the mother’s fourth child. The mother’s older three children have been the subject of public law proceedings in this country, and are subject to public law final orders, all in kinship placements away from the mother.
  1. At this hearing, in London, the mother told me that she and her husband made that journey to Ireland “purposely to avoid my child [i.e. the baby] being stolen” by the local authority who had taken proceedings in relation to her older three children. It is common ground that this local authority would indeed have issued care proceedings in relation to the baby, had the mother remained in their area.
  1. The mother went on to tell me that “unfortunately” their plan has “backfired.”

 

The plan backfired, because the authorities in Ireland issued their equivalent of care proceedings, and the child was placed in foster care. Having fled there only to avoid care proceedings, the parents had no real interest in staying or living in Ireland – the mother came back to England [although to a different LA than the one she had been living in, and which was 200 miles away] , the father for work purposes moved to Scotland. That obviously had a huge impact on their contact.

 

It was therefore the mother’s application for the proceedings relating to the child to be brought into the English jurisdiction.

 

The High Court went on to identify the main aims of the judgment, and one of them is particularly noteworthy (I know that the ‘flee to avoid proceedings’ is a common school of thought on the internet, and Ireland has been a popular choice – proximity, no language barrier, and their constitutional opposition to adoption being key factors in this. In this case, it seems that it was discussion on the internet that led mother to make that decision to flee to Ireland )

 

  1. This judgment serves two principal purposes:

i) It discusses the legal and practical complications arising in seeking to achieve a transfer of jurisdiction in these circumstances;

ii) It seeks to provide solutions in the instant case, to achieve the move of LM to this jurisdiction in the near future, and the transfer of care proceedings to this Court, initially to the Family Division of the High Court.

  1. 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 (hereafter ‘BIIR’), where it is demonstrated to be in the interests of the child to do so. The approach of the English Courts and the Irish Courts appears to be similar; the Irish Constitution exhibits no intention to establish Ireland as a sanctuary for families from other jurisdictions: see the Irish Supreme Court’s decision in Nottinghamshire County Council v B [2011] IESC 48 (at paragraph 72, per O’Donnell J.).

 

[The Irish case is worth reading, and I had not encountered it before. It sets out the very interesting analysis of the Irish constitutional situation with regard to adoption, particularly adoption of children of MARRIED couples http://www.bailii.org/ie/cases/IESC/2011/S48.html    which would probably be an entire article on its own. There certainly has been a school of thought, which this judgment corrects, that the Irish Courts and authorities could not and would not sanction a return of a child to a jurisdiction where adoption was a possible consequence of that return. It is rather more complex than that, and at the very least, the Irish courts would need to be satisfied that the risk of adoption was a very real and proximate one, rather than a possibility ]

The procedure is another Article 15 of Brussels II one [you may remember my recent blog on the Slovak case where the Slovak authorities used it to take over proceedings that were very advanced in the English Courts]

 

https://suesspiciousminds.com/2013/03/22/ambassador-with-these-brussels-2-applications-you-are-really-spoiling-us/ 

For that reason, I won’t set out all of the principles again. (Phew)

 

  1. At this hearing, on the matters relevant to and consequent upon the Article 15 transfer request, the position of the parties is as follows:

i) The mother: The mother initially proposed, and continues to support, a transfer of the proceedings to this jurisdiction, stating that it is clearly in LM’s interests that such a transfer should be effected. Towards the conclusion of her submissions, she appeared to suggest that her agreement to the Article 15 transfer was in fact conditional upon the receiving authority being identified as Y County Council rather than X County Council. I note the mother’s position in this regard and discuss it further below. That her acceptance of transfer is said to be conditional on the identification of a specific local authority as applicant in this country is of no real consequence, given that effective transfer relies on ‘acceptance’ by one party only to the Irish proceedings; in the instant case, the HSE has indicated its unconditional acceptance.

ii) The father: By letter dated 6th March 2013 from the father’s Irish solicitors, I was advised that he “continues to support his wife’s Article 15 request and consents to the transfer of the public law proceedings in their entirety to the jurisdiction of England and Wales. Our client is content that his position be confirmed by Counsel on behalf of the HSE to the English court on 12th March 2013.” In fact the father attended, from Scotland, for the second day of this hearing and confirmed that he supported the transfer but (corresponding to the position of his wife) wished me to identify the proposed applicant authority as Y County Council;

iii) The HSE: The HSE unconditionally ‘accepts’ the transfer and supports the court taking effective steps to achieve transfer of the proceedings to this jurisdiction; it invites me to be satisfied that it is in the best interests of LM that the proceedings are so transferred; the HSE is neutral on the identification of the appropriate ‘receiving’ authority;

iv) The Guardian ad Litem in the Irish proceedings: The Guardian, by letter dated 11th March 2013, confirms that it is her opinion:

“that the application being made is in the interests of [LM] and should be proceeded with as a matter of urgency ….”

The Guardian expresses her concern that “a transition plan” should be devised to achieve the physical transfer of the infant LM to this jurisdiction ideally to “a long term placement …. should the decision outcome of care proceedings in England and Wales be that [LM] remain in long term State care”. She supports a transition plan “strictly on the basis that” LM is placed in the care of a specific local authority (she had proposed X County Council) and recommends that a Guardian ad Litem be appointed for LM.

And then

 

  1. The request for transfer under Article 15 was further predicated upon a conclusion that it is in LM’s “best interests” for the transfer to be made to this court. It is suggested on behalf of HSE that the best interests test is amply satisfied by a combination of the following factors, in summary:

i) LM is British; her parents, siblings and kinship carers are British.

ii) LM has no family in Ireland. Her only connection with Ireland is that she is physically present there because of a tactical international move made by the mother to avoid the jurisdiction of the English courts.

iii) The mother is now in this jurisdiction and has indicated a wish to remain here. Were LM to be returned to this jurisdiction, this would render easier the facilitation of contact between her and her mother. Assessments of family relationships will be more effective if mother and daughter can be seen regularly together;

and

iv) The background history of LM’s older half siblings originates entirely in the area of X County Council; this evidence is likely to be important in any determination of LM’s future care

 

 

[You will note that HSE, who are the Health Service Executive of Ireland, were agreeing to the transfer of jurisdiction, thus showing comprehensively that the theory that Irish authorities are constitutionally bound to stand guard over parents who might run the risk of their children being adopted and ensure they are not removed, doesn’t work in practice, much as the “freeman of the land” devices don’t actually work in practice]

The case then got into a consideration of which of the two local authorities in England (the one mum had fled from, or the one in which she was now living) would be responsible for the new proceedings.

 I won’t repeat any of that argument, as the authorities are all well known, but I did like Justice Cobb’s asides here

 

The hopes of Thorpe LJ in the Northamptonshire case that the statutory sub-sections could provide “a simple test” to be “operated by the court in what should be the unlikely event of dispute, to determine which Local Authority is to be responsible for the care plan and its implementation” (p.891A) have not entirely been fulfilled, as the subsequent case-law demonstrates. What he hoped would be a “rapid and not over sophisticated review of the history to make a purely factual determination” (p.890G ibid.) in any given case has equally proved forlorn.

 

 

On the facts of the case, the Court found that the designated authority was the one that mother had originally fled from and that she had not become ordinarily or habitually resident in the new one (she was effectively sofa-surfing)

 

Advertisements

About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

12 responses

  1. Stella aka Toni

    what you may be interested to note is that the now 8 month old baby girl in this case was physically abused medically neglected and physically neglected by the state in their care and the judge is considering a residency order in the favour of the mother you may also find it of more interesting of note that this particular case is the ‘EDL mam’ story risk of future emotional harm the age was wrongly stated im 26 not 28 and i have not been a risk of physical harm to any of my children got a final judgement to confirm that ………but hey what would i know im just Mrs X the child’s mam ……. o.O xx

    • Hi Stella,

      I have taken your surname out, because I can’t publish information which identifies you or the child, but I did feel that your comments were important and useful and wanted to publish them.

      I was aware that the future emotional harm case was being considered by the Supreme Court, and I look forward to the judgment. As you’ll know from my post on that case, I thought the Court of Appeal got their decision wrong.

      • stella aka toni

        thats not a problem what so ever and understand your predicament regarding my personal details
        There is the J (children) supreme court judgement relating to previous threshold’s being used in new proceedings which i will be making use of and also the B (child) supreme court case which is still awaiting judgement in relation to emotional harm but if the decision is favorable then i will be making use of that also in relation to my own case.
        the difficulty in my case is due to having to run and then quickly learn irish law whilst continuing to study english law i have not had time to appeal my 3 childrens judgement which in due course i will do but it leaves me with the normal issues of having the proof to disprove all allegations but not having done so leaves a black mark against my name
        but i think the main issue of my case is that just on durham’s say so ireland took my newborn moments after birth and even ruled my husband out of caring for her due to him being a risk of emotional harm due to he may die in afghan !? again on durhams say so
        now they know i wont be backing down and am not as ‘wet behind the ears’ as i previously was not a single local authority want anything to do with the case all 3 local authorities attending this case refused to accept responsibility effectively passing the buck leading to justice cobb having to dictate ownership of the case
        im allegedly a risk of future emotional harm from what i may ‘say’ yet in state ‘care’ my daughter has been abused severely i certainly have never cut any newborn babies finger tip OFF …… unlike my daughter’s foster carer and thats just one of many examples the rest are more horrific
        what you have here and in many cases is the nash v coventry cc case all over again where judge bellamy openly stated the local authority are more of a risk to the children than the parents ….
        my case is now personal to the social workers involved rather than protection based xx

      • Hi Stella,

        I have put this comment in, because you are clearly having an awful, awful time, and I think you have some really important things to say, and are saying them well. It’s obviously a fine line about giving too much information away about your case, and I don’t want to make your situation any more difficult for you by leaving you open to any criticism that you have talked about the facts of your case too much [which is why I didn’t put the subsequent one in – for clarity, I don’t think you said anything that you shouldn’t, but I have to be cautious]

        Without knowing the rights and wrongs of your situation, it is clearly horrendous that you have had to try to make sense of two completely different jurisdictions and sets of laws and procedures, and that your life has been absolutely turned upside down. I hope that you are able to persuade the Courts that you are going to be able to care for your children.

        One thing you did say in the other post, which I think is important, was this, so I will quote it “due to the complexity of LIP’s representing themselves in irish proceedings when they are not entitled to any documents or paperwork i honestly wouldnt advise any parent going there “

  2. forcedadoption

    The fact is that it is worth parents (especially pregnant mothers) going to Ireland BEFORE any notice of UK proceedings have been served to avoid adoption not to avoid care.The family whose plan backfired fled there with very little cash and had to return to UK for that reason;
    It is (as Christopher Booker pointed out last Sunday) a mystery why UK social workers travel as far as places like St Vincent,Uganda,Israel,and Slovakia to try and recover babies and young children to return them to expensive fostercare at public expense.They do this rather than leave them to be dealt with the social services of the country the parents have fled to.Perhaps it is not quite such a mystery when one realises that fosterers are paid over £400 per week per child ,and up to £800 –£1000per week for a child with special needs,( Could it be possible that some social workers are “bunged a portion of that? Perish the thought !).The picture became even clearer when the “National Fostering and Adoption agency ;founded by two social workers a few years ago was recently sold to a tough American Company called “Graphite “for more than £130million !!

    • Well actually Ian, I agree with part of what you say. Not all of it, of course, there are things that we will have to agree to disagree on. But a lot more common ground than we sometimes have.

      I’ve had to rewrite my thoughts about National Fostering and Adoption Agency a few times, and I’m afraid I just can’t hit on a formulation that expresses my personal distaste for blurring profit and finding placements for children, whilst recognising that we live in a free country, where people can see a gap in the market for a service, and provide that service for a fee that those people needing the service are prepared to pay. I just can’t, so I can say nothing more than that really. Like you, I don’t feel comfortable or happy about it.

      I do agree that there are cases where children go off to foreign countries, often the countries that the parents were originally from, and although those countries take a different view of the parents abilities to England, we really ought to just let them get on with it. Where the concerns are shared and the authorities in that new country know about the worries and come to a different view, I’d be of the ‘let them get on with it’ school of thought.

      I think one thing that the authorities on ‘fleeing overseas’ tell us is that you need to actually have a proper plan and a proper intention to make a life in that country, not just a short term escape plan. That, and probably avoid a Brussels II country.

    • I have to agree with Ian. He gives fabulous advice.

  3. You opinion piece here is riddled with inaccuracies and assumptions. I am very familiar with the circumstances of the LM case, most notably that the HSE removed this baby at birth on no more evidence than “the mother had a previous association with the EDL when she was a teenager”. John Hemming MP spoke about it in Parliament. The HSE have done untold damage to this infant where the mother is not even accused of any crime.

    The RCJ, the Irish High Courts and Supreme Courts are in violation of International Law in these and other cases. The Hague Convention and Brussels II do not allow a court to make orders for a fetus and neither were written with the intent of allowing State Sponsored Kidnapping. In numerous cases social workers have lied in foreign jurisdictions that the LA’s had orders in the UK. Let me repeat myself, you cannot obtain an order for a fetus. This was already decided in the French case but since that has been used in Ireland and Spain just in cases that I know about.

    One line particularly sums up the corrupt Child Abuse Industry for me;

    “the Local Authority had concerns about the children, though probably not sufficient to warrant removal”

    This line forms the basis for most “Care” Orders in Ireland and the UK, the vast majority of parent who have children stolen on suspicion and in many cases Forcibly Adopted, have never even been accused of any crime (184 to 1 by my estimate in Ireland). What happened to LM is not just an injustice, it’s child abuse. While you ponder legalities the children are abused by the Child Abuse Industry.

  4. And make sure you can drive. There was a case a few years ago in the Scottish courts about a woman who wanted to take the children to a remote part of Spain. She could not drive but according to the judge she was planning to take a “crash course”!

    Calling all judicial officeholders: engage brain before mouth.

  5. “PUNISHMENT WITHOUT CRIME” is the phrase that sums up all that is wrong with our family courts.Mothers have their babies removed at birth and later adopted for “risk of emotional abuse” which is not a crime nevertheless they are jailed if they complain publicly. .The judges who authorise the punishment of both women and children in this way should be jailed themselves for crimes against humanity as were their “colleagues” the Nazi judges at Nuremberg.

  6. Good points joe as always, the main point of concern in my case both previously and now for the local authorities is that they simply cant silence or control me ……. what can they honestly threaten to do to me that is worse that stealing and abusing my children ??? nothing …jail – they have already done to me having had me remanded to originally kidnap my older children. torture me – well not being allowed a bed after giving birth and getting made to walk 30 miles at the social worker’s demands no medication pain relief etc would surely constitute torture in my eyes. attempt to socially exclude me – well being branded a child abuser has surely not been the easiest to deal with. stop all family contact – they have done by putting injunctions against me going near my family whether my children are present or not and stopped my contact with my children. the list of what they have done to me and my children is endless and regardless how many ‘gags’ they try to implement on me i wont be silenced in those famous words ‘what they have done to me is monstrous and they have created a monster’ hence why every local authority now coming across me aiding parents against them put injunctions on me to stop my involvement there exact grounds being ‘ i am detrimental to the local authorities case against parents’ …. yes cause the truth hurts and speaks volumes when highlighting their crimes against humanity ! i can quote their legislation laws and protocols better than them and a photo graphic memory to boot works a hell of a lot in my favour ! i may not be the most politically correct person i may not bite my tongue enough i may not be every ones cup of tea but i know the difference between right and wrong and wont stop speaking out against abuses of power i may not get to save my children from the system and i accept that but il sure as hell make sure i save my children’s children from it and will try and save my own angels while doing so…… i was am and will continue to be a good mammy my children are bright confident out spoken inspirational lil individuals who will always be a credit to me and regardless of what the courts say they will come home even if that means i have to wait until they are 15 …. 16 …. 17 …. 18 years old they will ALWAYS be my babies and i will always be here for them they know who i am they know how hard i have fought for them they know they are loved wanted and have a place in my home no matter what my angels are too much like me and will not be brain washed into believing other wise they have their own minds and have be brought up to stand up and be counted speak their minds and not dragged up to be sheep and follow blindly every thing put to them the power is in the question WHY? and my children will grow up to question why was this allowed to happen? why did justice not prevail? why wasnt the system changed? why wasnt me mam with me what did she do to get us back? and the answers will all be there in black and white i did everything i could possibly do i jumped through their hoops it didnt work i tried it legally it doesnt look like its working i turned my whole life into what they requested it didnt work i tried running it didnt work i studied law public private criminal common international even going to setting two new precedents in two different countries it didnt work i campaigned publicly politically utilized the media mp’s police public professionals even going so far as to having my case mentioned in European parliament in papers the internet tv etc all over the world it didnt work iv taken over ken clarke justice ministers home roof to demand justice all to no avail iv tried cooperating engaging working to achieve their demands it didnt work iv done parenting psychological psychiatric assessments passed them all it didnt work nothing works i wont ever stop trying but im fast running out of options the only one that seemed to work for a short while was hammering their budget with demanding assessments here there and every where but there is only so assessments one person can possibly have when they all come back praising you i could always kidnap my children like many parents including myself consider regularly i have the resources the backing and the contacts to do so and could achieve my children and myself leaving the country undetected and living a life in secret but i wouldnt put my children through it not now not ever its not in their best interests to constantly look over their shoulders living in fear of the door knocking it wouldnt be any life for them or me i will get justice eventually one day …….they’ll regret the day they heard my name but they’l never ever forget it i will be the one that cant be beaten into submission im a mammy and they will never stop me being that until the day i die regardless how many obstacles they put in the way or what they do to me the more they try the stronger i get its not the breaking of me its the making !! i am now stronger than i ever have been fear is all they have against other parents i have never had that fear i simply had a perfect family one day then nothing the next i didnt get prewarned i didnt get threats like many which is may be why im different and havent crumbled but i know many like me who did and we all have the same stories to tell we are born survivors we have been through horrendous incidents in our lives and have simply got up brushed ourselves off and said s**t happens bring it on !! it will be us parents who change the system because the system has nothing to chuck at us that can effect us anymore it has already happened to us when you have nothing to loose there is nothing you wont do back a wild animal into a corner and they will fight back with all they have it all boils down to 3 prime principles …….fight flight freeze and i choose fight every time xx

  7. I am the mother in re O-C…..and I wrote and won my appeal myself.

%d bloggers like this: