Summary
The case was concerned with a very young child, born on 19th Jan 2010.
Following the birth, the child was living with his parents in England. However, after suffering some unexplained injuries, it was admitted to the hospital and the Local Authority got involved.
It was agreed that the child will be accommodated by the local authority, with parents’ agreement. The social workers felt that, pending the investigation, the child should be looked after by the maternal grandmother. To this end, the formal agreement and arrangements were made.
However, the grandmother with the parents’ consent removed the child to Ireland.
The Local Authority sought the recovery of the child.
An issue regarding the habitual residence of the child was raised in this context.
Mr Justice McFarlane held that the English court had jurisdiction, noting that:
“27 There is no doubt that K's parents were and are habitually resident in England and Wales. There is no doubt that he was habitually resident in England and Wales from the moment of his birth in the hospital in [town]. The question is, did he lose that habitual residence by his departure to Dublin? No evidence that this court has before it leads me to conclude that he did. All the evidence, such as it is, including the submissions of the parents' lawyers, points the other way. I also have concluded that it was not open to these parents in the circumstances in which he was and in which they acted to, as a matter of fact, change his habitual residence in this case. He, therefore, has not lost his habitual residence, certainly had not lost it some few hours after his arrival in Dublin when these care proceedings were issued and since that time this court has been making orders for his return. The court was right to do so, in my view. This court had, has and retains jurisdiction in relation to K because of his habitual residence in this jurisdiction and because, as Judge Bellamy said in the quotation I made from p.20 of the transcript, this is an English case where this English child was injured in England by parents who are still in England. He requires a return to this jurisdiction so that his welfare can be protected by the English authorities and so that the parents can engage in the process that will be conducted by the
English Court.” [27]