HSE -v- SC and Ors
(Reference from High Court).
European Court of Justice
Case C-92/12 PPU
Judgment was given on April 26th, 2012, by the Second Chamber of the European Court of Justice.
Judgment
When a child is sent by court order by one EU member state to be detained in a secure care institution in another EU member state, the detention must be declared enforceable by an authorised public body in the receiving state.
Background
The case was referred to the European Court of Justice by the High Court on February 16th, 2012. It concerned the case of a girl, SC, who, in 2000, was placed in the care of the Health Service Executive until her 18th birthday. Previously she had been in temporary care on many occasions, both in foster care and in institutions.
Her mother, AC, lives in London.
The girl is particularly vulnerable and has exceptional child-protection needs.
There have been repeated incidents of risk-taking, violence, aggression and self-harm in the case.
All the professionals were agreed she needed to be in a secure care institution for her own protection so she could be clinically assessed and receive appropriate therapeutic intervention.
There was no suitable institution in Ireland, and the HSE considered she should be sent to such an institution in England. She had continuously expressed a wish to be closer to her mother.
The HSE sought this order from the High Court, which stated that it required consent from the Central Authority for England and Wales.
This authority replied to the High Court with a letter from the chosen care institution offering a place to SC, stating this was as provided for in section 56 of the 2003 EC regulation on the enforcement of matters concerning matrimonial and parental responsibilities. The girl was then transferred to the institution in England.
Although all concerned, apart from the girl herself, considered that her detention in this unit was necessary for her welfare, the court had legal concerns and forwarded a series of questions to the ECJ.
It asked did these circumstances come under the scope of section 56 of the regulation and, if so, who was the competent authority in England for the purposes of giving consent under it?
The court considered there could be a conflict of interest where that authority was the institution itself, particularly where it could derive profit from the placement.
It also asked, given that the girl was being detained against her will, could authority for such detention be given in a state in which she was not habitually resident?
If the court in the receiving state consented to her detention, and the period of her detention was extended by the sending state, was it necessary to return to the court of the receiving state to have it extended?
While these matters were being considered by the European Court of Justice, the High Court asked the Health Service Executive to seek the assistance of the High Court in London to declare that its order was enforceable in England.
This was carried out.
Decision
The European Court of Justice concluded that the detention of a child against her will for therapeutic purposes did come under the scope of section 56 of the regulation.
The consent of an institution which admits children in return for payment cannot, by itself, constitute the consent of a competent authority under the regulation.
Before an order for compulsory placement of a child in another member state can become effective, it must be declared to be enforceable in the receiving member state by a competent public authority.
Because of the urgency of such applications, the decision of the court of the requested
state must be made with particular expedition, it said.
Where a consent for such a placement has been made for a specified period of time, a fresh consent must be sought for any extension of the time of detention.
The full judgment is on curia.europa.eu