A judge at the Dublin District Family Court has granted an interim care order for a boy in foster care who has "never unpacked his suitcases".
Judge Brendan Toale, however, refused to fix dates for a full childcare order hearing, so the boy could stay in care until 18 because of jurisdictional concerns.
The young teenager, who came into care more than four months ago, has been living with a foster family in Ireland. His mother is living in another European country, where the boy spent most of his life.
The boy’s court-appointed guardian told Judge Toale the boy was very clear that he either wanted to stay in Ireland, but living with a sibling instead of his current fosterers, or he wanted to be sent back to his mother. The boy’s mother had said she would not be coming back to Ireland.
The guardian described the boy as “very placid, mannerly and articulate”, but said he was becoming anxious. “He’s never unpacked his bags in his foster home,” the guardian said. “He doesn’t see himself living in this placement.”
Certainty needed
The guardian said the boy needed certainty and recommended a date be set for the full hearing of his case and that a care plan be developed for him.
The Child and Family Agency sought an interim care order for the boy for 28 days, and also sought court dates for a full care order hearing. The case follows a High Court ruling in December in which Ms Justice Bronagh O'Hanlon found the District Court did not have the power to conduct inquiries about which country had jurisdiction of a childcare case.
Under EU regulations Brussels II, a court of a country generally has jurisdiction of a child care case if a child has been habitually resident there and a case cannot be heard, if a court does not have jurisdiction.
A barrister for the mother told Judge Toale she did not have instructions from her client, but she believed there was an onus on the agency to seek clarification about jurisdiction.
“Everyone here knows there is a serious issue regarding habitual residence; we can’t all just ignore it,” she said.
She asked that either the agency or the court refer the case to the High Court for a decision about jurisdiction.
Court jurisdiction
The agency’s solicitor said Ms Justice O’Hanlon’s judgment gave a presumption to the District Court that it was acting within the EU regulations and it did not need to inquire about jurisdiction. He also said the agency was satisfied with the court’s jurisdiction.
However Judge Toale said the child involved had “undeniably resided” in another jurisdiction “for most of his life”. He said EU regulations required a court that had no jurisdiction in a case to “declare of its own motion that it has no jurisdiction”, yet he did not have the power to consider jurisdiction.
“It is difficult to reconcile; nevertheless it has to be reconciled,” he said.
He would not fix dates for a full hearing until the matter was resolved. He granted the interim care order and adjourned the case for a week.
