HSE Ireland v SF (A Minor)

Article 20 of Brussels II Revised permits a court to grant provisional protective measures concerning a child present in its jurisdiction, even where another Member State has substantive jurisdiction. The measure must be urgent, concern a person in the requested state and be provisional. Article 20 is an exception to the jurisdictional scheme and must be interpreted strictly. The domestic court must possess power to make the proposed measure under its own law. The High Court’s inherent jurisdiction includes power to authorise a child’s detention for therapeutic treatment. Such relief may be granted pending registration and enforcement of a foreign order where the child’s welfare requires immediate protection. The relief ceases when the court with substantive jurisdiction has taken appropriate measures.

The Health Service Executive of Ireland applied urgently under Article 20 of Council Regulation (EC) 2201/2003 for interim protective orders concerning a 17-year-old child in Irish care. The Irish High Court had ordered her placement in a secure therapeutic unit in England and had obtained the necessary consent under Article 56. The Irish order had not yet been registered for enforcement in England. The issue was whether the English High Court could authorise the child’s residence, detention and treatment at the English unit pending registration and enforcement.

1. Application granted. The court made interim orders under Article 20 permitting the child to reside at the English unit, permitting staff to detain or return her using reasonable force if necessary, and permitting necessary care and treatment whether or not she consented.
2. Relief under Article 20 requires three cumulative conditions identified by the CJEU in Re A (Area of Freedom, Security and Justice) and Deticek v Sgueglia: urgency; measures concerning persons in the Member State where the application is made; and provisional measures. The exception must be interpreted strictly. The measures must also be available under the law of that Member State.
3. The High Court has wide statutory and inherent-jurisdiction powers concerning children. Those powers extend to orders for a child’s detention for therapeutic purposes, as recognised in Re C (Detention: Medical Treatment). The court therefore had jurisdiction to make the orders sought.
4. On the evidence, the placement and treatment were in the child’s interests and immediate protective relief was urgent. The orders were provisional because they were to cease upon completion of the registration and enforcement process for the Irish order. The child’s circumstances were also subject to regular review by the Irish High Court.
5. The court treated the CJEU’s observations in HSE for Ireland v SC as implicitly approving the use of Article 20 in comparable circumstances. Recognition and enforcement procedures required particular expedition, but until they were completed Article 20 could have a crucial protective role where postponement would imperil the child’s welfare.
6. Each case turns on its facts. In other cases fuller scrutiny of the evidence and separate representation of the child in England might be required. Direct judicial communication between the Irish and English High Courts was appropriate.