Sixteen-year-old young person loses challenge over recognition of Irish special care order
A 16-year-old young person must be returned to the Republic of Ireland so his case can be heard in a court there, Mr Justice Hayden has ruled in the High Court.
The case was brought by child E against the Child and Family Agency of Ireland (CFA) and a county council
Hayden J said in his judgment that E sought to appeal against the recognition and enforcement of an Irish Special Care Order, pursuant to Article 23 of the Hague Convention.
The order by Mr Justice Jordan authorised E's detention in a special care unit and enabled the CFA to request the police to deliver him to their custody should he abscond.
E appealed the ground that recognition of the Irish order was manifestly contrary to public policy of England and Wales, taking into account the best interests of the child.
It had been argued in Ireland before Jordan J that E would not be safe in the care of the CFA as no appropriate placement was available and there was no indication when one might become available.
All that was possible was ‘stopgap’ provision, but Jordan J still made the order.
Accommodation arranged for E in England was a crisis placement and there were allegations of challenging behaviour.
Hayden J noted: “I am also bound to note that he faces serious criminal offences in Ireland. Seven bench/arrest warrants have been issued in consequence of his non-attendance.”
He said E was “strenuously opposed to returning to Ireland and into the care of the CFA [and] he has expressed himself to be at serious risk in Ireland and stated that he fears that his life will be at risk.”
The judge said to achieve non-recognition under Article 23(2)(d), “it will be necessary to establish exceptional circumstances and on the clearest of evidence”.
He explained: “Recourse to the public policy clause requires clear evidence that recognition or enforcement of a judgment of another contracting state would be so at variance and to such an unacceptable degree that it contravened or infringed some fundamental principle in the state where enforcement is sought.
“The facts of this case could not be further from the circumstances contemplated by Article 23(2)(d). On the contrary, the approach of the High Court in Ireland, has been so strikingly similar to the approach of this court that the two are almost interchangeable.”
Jordan J had carefully analysed E’s situation and concluded that it was in E's best interests to return to Ireland and an interim placement until a special care bed is available.
“The approach of the Irish Court was to bear down on the CFA and to emphasise the importance of a continuing drive to identify appropriate care,” Hayden J said.
“It is a scenario with which I and very many judges of the Family Court will be all too familiar.”
He concluded: “Whilst I entirely understand this young man's determination to be free of his past in Ireland, I am entirely satisfied that his circumstances and his allegations can be most effectively litigated in the Irish Court. The Article 23(2)(d) exception has not been met.”
Mark Smulian
