E v The Child and Family Agency of Ireland & Ors

The public-policy exception in Article 23(2)(d) of the 1996 Hague Convention is a very narrow exception. Recognition may be refused only in exceptional circumstances and on the clearest evidence that recognition would infringe a fundamental principle of the requested State. The child’s best interests must be taken into account, but they do not constitute a separate cumulative ground of refusal. The exception does not permit review of the merits of the foreign measure or substitution of the requested court’s assessment for that of the court which made the order. A child’s strongly expressed opposition, without more, will not ordinarily establish the required incompatibility with public policy.

E, aged 16, appealed against orders made by DJ Jenkins recognising, registering and permitting enforcement in England of Special Care Orders made by the High Court of Ireland. The orders authorised E’s detention in, and return to, a special care or interim placement in Ireland.

The ground based on lack of an opportunity to be heard was abandoned. The appeal proceeded solely on the contention that recognition and enforcement would be manifestly contrary to the public policy of England and Wales, taking into account E’s best interests. The central issue was whether E’s resistance to returning to Ireland and the absence of an immediately available special care bed satisfied Article 23(2)(d).

1. Appeal dismissed. The Article 23(2)(d) exception was not established.
2. Article 23(2)(d) imposes a very restrictive test. Non-recognition requires exceptional circumstances and clear evidence that recognition or enforcement would be at variance with the legal order of the requested State to an unacceptable degree, by infringing a fundamental principle of public policy.
3. The words requiring the court to take account of the child’s best interests do not create a separate cumulative test. They qualify the assessment of public policy. The public-policy exception must nevertheless be applied restrictively and consistently with the international scheme of recognition.
4. The court must not review the merits of the foreign measure under Article 27. It must assess whether recognition, rather than whether the foreign court’s welfare evaluation was correct, would offend a fundamental principle of English public policy.
5. The Irish court had heard E’s objections, recognised his vulnerability and the risks affecting him in both jurisdictions, and concluded that return to Ireland was in his best interests pending an appropriate special care placement. Its approach closely reflected that of the English court. The absence of an immediately available special care bed and the existence of an interim placement did not make recognition manifestly contrary to public policy.
6. The court also noted that English law recognises, under the inherent jurisdiction, the necessity of authorising an unregulated placement where it is the only practical option available to safeguard a child’s welfare, as explained in Re T (A Child). That context reinforced the conclusion that the Irish order was not fundamentally incompatible with English public policy.

• High Court (Family Division): DJ Jenkins made recognition, registration and enforcement orders in respect of the Irish Special Care Orders. E appealed as of right under Article 23 and FPR Part 31. Mr Justice Hayden dismissed the appeal.