TWICE RECENTLY I have written about an English family who came to Ireland seeking refuge because they feared their two children would be subjected to forced adoption by social services in Nottinghamshire.
The Supreme Court last month upheld a High Court ruling, which in effect refused this family the protection of the Constitution. Because of the legal requirement of secrecy, I used the family pseudonym “Lane”. Readers may have – correctly – made a connection between the “Lanes” and an article (“Hague rules clear on where child cases heard”) in this newspaper on Wednesday, by the Legal Affairs Editor, Carol Coulter.
Her article suggested that this was a straightforward Hague convention case, with Nottinghamshire social services equating to the parent “left behind” after an abduction. The sub-headline – “The Irish courts were right to rule against an English couple who fled here to avoid their children going into care” – was remarkable.
Firstly, since the Supreme Court’s judgment is as yet unavailable, its decision cannot be assessed.
Secondly, there was no proposal in England to take the children into care. There was merely an application for a supervision order, which, if granted, would have meant the children staying with their parents under supervision, while assessments were made. (Only if the parents had been unco-operative could an interim care order have been considered.) Despite having cleared the parents in a previous investigation, the authorities shifted their focus to constructing a case about “potential risk” to the children. Noticing that court documents indicated adoption as an option, the parents brought their children to Ireland.
These circumstances render this case radically different from conventional Hague convention cases concerning disputes between parents involving abduction.
Coulter stated that the intention behind the Hague convention was “to resolve the differences between the child’s carers in the country where the child was ‘habitually resident’, and therefore where the fullest information would be available relevant to the child’s welfare. It seeks to preserve the status quo that existed immediately prior to the child’s alleged wrongful removal, with the purpose of deterring a parent from crossing international boundaries in search of jurisdiction that might be more sympathetic to his or her case.”
Actually, the Hague convention is concerned primarily with two concrete and distinct legal categories: rights of custody and “habitual residence” – which is not, as Coulter suggested, synonymous with “the country in which they [the children] normally live”. Two parents with parental responsibility, having sole care of their children, can change their family’s habitual residence by the straightforward expedient of emigrating with “a purposeful intention to remain”.
Because the parents in this case both retained parental responsibility and had together moved to Ireland without breaking any law or legal order, that development should have been sufficient to change the habitual residence of their family. Their right to do this is guaranteed under EU freedom-of-movement provisions.
For more than a year, this family was embroiled in care proceedings in the Dublin district court, suggesting that Ireland had already claimed jurisdiction. Since the English authorities gave evidence in these proceedings, they appeared to acquiesce in a change of jurisdiction. Indeed, Nottinghamshire County Council openly accepted that the children’s habitual residence changed the day they left England, nearly 18 months ago.
Interestingly, both the care and Hague proceedings were initiated on the same day. It is unusual for a “requested country” under the Hague convention to hold care proceedings extending beyond matters relating to emergency powers. Here, proceedings went to a final care hearing in November 2009, with the HSE and the court withdrawing on day three.
Under the Hague convention the “requested country” may ask the “requesting country” for proceedings to be transferred if this is in the interests of the children. It is astonishing that, after more than a year of care proceedings here, the Irish authorities did not do so, but decided that the children’s best interests were served by returning them, against the family’s wishes, to England – where no care proceedings had been heard.
The parents alone retain parental responsibility for these children, and they insist that the children’s habitual residence continues to be that of Ireland. No order has been made transferring parental responsibility to anyone else. Interestingly, the only order the Supreme Court has yet issued is one enabling Health Service Executive staff to “accompany” the children to England. Nor has any order been issued in this jurisdiction sanctioning the transfer of parental responsibility to anyone in England on the children’s return.
On the only other occasion that these issues have arisen under the Hague convention – a case known as S v Slough Borough Council and Others (2008)– England
won the Hague case through rights of custody, but had to return the child to Romania, because, since the child’s habitual residence was there, it was impossible for the courts of England to issue any further orders.
On confirmation of the children’s return to England, these parents will make history by filing a Hague convention application with the English central authority on the grounds of wrongful removal from Ireland, and for the return of the children to their habitual residence, ie that of Ireland, where the “Lanes” live as a family.