Belfast Health and Social Care Trust -v- S anor
Neutral citation (2011) IEHC 468.
High Court
Judgment was delivered on December 16th, 2011, by Ms Justice Mary Finlay Geoghegan.
Judgment
Orders made in the High Court in Belfast to take a child into care and to recover her from this jurisdiction, to which she had absconded, should be recognised under the appropriate European Commission regulation.
Background
The 14-year-old girl, who was given the name “Dona” for the purpose of the Northern Ireland proceedings, was one of three children of parents from eastern Europe who came to Northern Ireland in 2005.
The family came to the attention of Belfast Health and Social Care Trust and proceedings were taken in the High Court. In September 2010, orders were made taking Dona and her sister into care.
Dona attempted to abscond from care a number of times and, in August 2011, she made her way to Dublin where she was found and taken into the care of the HSE. The trust applied to the High Court in the North for a recovery order. The court issued a certificate of enforceability under article 39 of the 2005 regulation concerning judgments in matrimonial matters and matters of parental responsibility.
This provides that a judgment made in one EU member state should be recognised in another member state without any special procedure being required. It also allows for an interested party to oppose the recognition of the judgment.
The grounds for refusing to recognise such a judgment made in another member state are narrow and include that such a recognition was “manifestly contrary to the public policy of the member state in which recognition is sought, taking into account the best interests of the child”. The court is not allowed review the substance of the original judgment.
The issue therefore was whether the court should recognise the care order and the recovery order. Dona’s father, who was represented, opposed the recognition on the grounds that it would be contrary to Dona’s best interests, as the trust had failed to protect her from degrading treatment while in the home from which she absconded.
This was based on her allegation that when she embraced the Jewish faith, which required her not to eat pork, other children in the home threw pork at her and the staff failed to protect her. She also alleged that a member of staff called her an abusive term.
In Northern Ireland, she was represented by a solicitor, whom she trusted, and a guardian ad litem. She also had a guardian ad litem in this jurisdiction, who produced a report based on four interviews with her and who was represented in the proceedings.
Decision
Ms Justice Finlay Geoghegan stressed that the grounds for non- recognition of judgments from other member states should be kept to the minimum required and construed narrowly. It had to be manifestly contrary to public policy.
She said that this threshold was not reached on the facts of this case. She was prepared to accept that Dona was unhappy in the home to which she was sent and may well have suffered at the hands of other children.
However she was not satisfied that the trust, through its staff, acted in breach of what would be her right to bodily integrity in this jurisdiction.
The first order to be recognised was that placing her in the care of the trust. This did not specify any particular location. The second order, the recovery order, also did not necessarily mean her return to her prior location.
The nature of the care being provided for her was ultimately under the supervision of the Northern Ireland courts, where she had the benefit of a solicitor whom she trusted.
The guardian appointed in this jurisdiction made certain recommendations in her report as to the nature of the facility in which she might be placed on her return to Northern Ireland, and, recognising the orders, the judge also ordered that this report be forwarded to the Northern Ireland solicitor and guardian ad litem.
The full judgment is on courts.ie
Ann Kelly BL, instructed by Byrne Wallace, for Belfast Social Care Trust; Shane Costelloe BL, instructed by Rosemary Gantly, solr, for guardian ad litem and Nuala Egan BL, instructed by the Legal Aid Board, Dolphin House, for the father.