The High Court had no power to order that a British boy brought by his mother to Ireland should be returned to the care of the Scottish authorities without an order from that country, the Court of Appeal has ruled.
The boy, whose mother claimed he was badly bullied at school, has since the High Court decision been returned to Scotland, where he lives with foster parents.
The appeal court said its decision should be sent to the Scottish authorities, who can deal with any application the mother may now want to make aimed at having him come to live in Ireland with her.
The mother, who represented herself, expressed concern about her son’s current fostering in Scotland after the appeal court told her only the Scottish courts could determine where the boy should live.
Autism diagnosis
He has been diagnosed with an autistic spectrum disorder.
The mother said she was worried that, by the time any appeal by her in relation to this case was heard, her son will have been adopted in Scotland “and I will never see him again”.
Asked whether she was claiming any expenses in relation to the appeal, she said, in a low voice: “All I want is my son”.
Ms Justice Mary Finlay Geoghegan, presiding at the three-judge Court of Appeal, said it was vacating part of a December 2014 order by the High Court's Ms Justice Bronagh O'Hanlon which permitted the Child and Family Agency (CFA) to remove the boy from care in Ireland and place him in care in Scotland, where he had lived most of his life.
Habitual residence
The High Court was correct in deciding the boy’s habitual residence was Scotland, and that the courts of that country have jurisdiction to hear all matters in relation to parental responsibility, Ms Justice Finlay Geoghegan said.
However, only the courts of Scotland, not Ireland, had jurisdiction in relation to whether he should have been sent back to Scotland, she said.
That jurisdiction derived from a 2003 EU regulation (No 2201/2003) relating to the recognition and enforcement of judgments in matrimonial and parental responsibility matters.
Ms Justice Finlay Geoghegan said, in the absence of an order from the Scottish authorities, it did not appear to her the High Court had jurisdiction under that regulation to make the orders sending the boy back.
The judge said the boy had lived with his mother since 2011 in Scotland, his parents having separated before he was born, and his father having little involvement in his upbringing.
A guardian appointed by the Irish courts reported the father did not appear to have parental responsibility, but wanted the boy returned to Scotland.
Scottish social services recorded concerns about the mother and boy since his birth, the judge said.
The mother had a history of involvement with mental health services in Scotland but her case was closed in 2009.
Pleaded guilty
Her son started primary school in Scotland 2013, and that autumn the mother was charged and pleaded guilty to an assault on another child at the school.
The incident, as the mother perceived it, related to the protection of her son, the judge said.
He was sent to another school, removed from that and, in February 2014, sent to a third school, at which point the mother indicated a wish to home school him.
In March 2014 he was placed on a child protection register.
He returned to school in autumn but, while on a mid-term break, the mother was notified there would be a court hearing in relation to his care.
She left Scotland with him, travelling first to London and then to Ireland. Both were reported missing persons to Scottish police on November 2nd.
In her absence, a Children’s Hearing took place in Scotland and ordered the child reside in “any place of safety” away from the mother.
Interpol located them in Dublin and the boy was placed in the interim care of the CFA by order of the District Court proceedings which followed here, which resulted in him being sent back.
In the appeal against the High Court decision, along with the mother’s challenge, the court-appointed guardian said that decision had created difficulties in relation to other child cases as it had declared the District Court did not have jurisdiction in relation to certain matters covered by the 2003 EU regulations.
Ms Justice Finlay Geoghegan said the regulations provide if a court, including the District Court, decides it does not have jurisdiction in a case like this, it is obliged to make a declaration to that effect.