D.M.M. v O.P.M.

JurisdictionIreland
JudgeMs. Justice Ní
Judgment Date05 March 2019
Neutral Citation[2019] IEHC 238
CourtHigh Court
Docket NumberRecord No. 2018/18 HLC
Date05 March 2019

IN THE MATTER OF ARTICLE 11(6) OF COUNCIL REGULATION (EC) 2201/2003 AND IN THE MATTER OF FOREIGN PROCEEDINGS ENTITLED:

D.M.M.
Applicant
AND
O.P.M.
Respondent

[2019] IEHC 238

Record No. 2018/18 HLC

THE HIGH COURT

Wrongful removal – Non-return order – Time limit – Applicant seeking to make submissions to the High Court – Whether the applicant was out of time

Facts: A non-return order was made by the Athens Court of Appeal on 1st September, 2017 pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980. The order was made in respect of a child. The child was habitually resident in Ireland prior to what was found to be a wrongful removal to Greece. Proceedings before the High Court concerned the interpretation and application of certain provisions of Article 11 of Council Regulation (EC) No. 2201/2003 (the Regulation) and, more specifically, whether the applicant, the father of the child, was out of time in seeking to make submissions to the Court under the procedure laid out in Article 11(6)-(8), which provided for a three-month time limit from the time of notification to him of certain matters. Precisely what needed to be served upon a person in the position of the father in these proceedings was the focus of the ruling.

Held by Ní Raifeartaigh J that the father was furnished with the relevant documents on the 9th August 2018, and the deadline for submissions expired three months later.

Ní Raifeartaigh J held that the father had not made submissions nor served any motion within that deadline and was therefore outside the time limit envisaged by Article 11(6) the Regulation for bringing the matter before the Irish High Court.

Judgment approved.

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 5th day of March, 2019
Nature of the Case
1

This matter came before the Court in the context of a non-return order made by the Athens Court of Appeal on 1st September, 2017 pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980. The order was made in respect of a child who is now 7 years of age. The child was habitually resident in Ireland prior to what was found to be a wrongful removal to Greece. The present proceedings concern the interpretation and application of certain provisions of Article 11 of Council Regulation (EC) No. 2201/2003 (‘the Regulation’) and, more specifically, whether the father of the child is out of time in seeking to make submissions to the Court under the procedure laid out in Article 11(6) -(8), which provides for a three-month time limit from the time of notification to him of certain matters. Precisely what needs to be served upon a person in the position of the father in these proceedings is the focus of this ruling.

Relevant Chronology

Proceedings in Greece

2

The child was removed from Ireland and brought to Greece by his mother, Ms. O.P.M., on or about 7th May, 2013. The father then brought an application seeking an interlocutory injunction before the Athens Single-Member Court of First Instance, which was heard on 27th September, 2013. On 8th January, 2014, judgment was delivered and the Athens Single-Member Court of First Instance awarded temporary custody of the child to the mother. It would appear that the respondent father was only provided with a copy of the non-translated judgment by his then solicitors on 21st June, 2015.

3

The father, D.M.M., instituted proceedings before the Athens Single-Member Court of First Instance pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (hereinafter referred to as ‘the Hague Convention’). Those proceedings appear to have commenced in April or May 2015. That court heard the case and ultimately made an order for non-return pursuant to Article 13(b) of the Convention. This outcome was notified to the Irish Central Authority by email from a representative of the Greek Central Authority dated 24th June, 2015. On 17th August, 2015, the Irish Central Authority was provided with a certified copy of Judgment No. 4963 dated 9th June, 2015 of the Greek Court. The Irish Central Authority was then furnished on 18th December, 2015 with a copy of a report from Social Services in both the Greek and English languages which had been before the Athens Court.

4

Meanwhile, the father filed an appeal to the Athens Court of Appeal on 1st July, 2015. He also made an application to the Athens Single-Member Court of First Instance for interim access to his child on 21st October, 2015. A judgment regarding access was delivered on 1st December, 2015 by the Athens Single-Member Court of First-Instance and a copy of the judgment (Judgment No. 9745/2015) was emailed by the Greek Central Authority to the Irish Central Authority on 30th July, 2016.

5

The father's appeal against the order for non-return was heard on 27th April, 2017. On 1st September, 2017, the Court of Appeal of Athens delivered Decision No. 4133/2017 which dismissed the father's appeal to have the child returned to Ireland and upheld the order for non-return made by the Athens Court of First Instance. A copy of this decision was provided to the Irish Central Authority, in Greek, by email dated 8th November, 2017. A translated copy was subsequently received by the Irish Authority on 14th November, 2017.

Steps taken in Ireland

6

A representative of the Irish Authority wrote to the Greek Central Authority by email dated 16th February, 2018 seeking the mother's address in Greece. A reply was received on 20th February, 2018 which provided two alternative addresses.

7

In cases such as this, the Minister for Justice initiates the proceedings and, if and when the parties are served and come into the proceedings, the Minister then withdraws from the proceedings and the proceedings continue on an inter partes basis. The originating notice of motion for the within proceedings was issued and an ex-parte application was brought before the Court on 16th July, 2018 seeking directions as to the method of notification to the mother and father of the child, and inviting them to make submissions to the Court pursuant to Article 11(7) of the Regulation. The Court gave directions as to service on that date.

8

Both respondents were served by the respective means ordered by the Court and service was effected on the 9th August, 2018. Counsel on behalf of the Minister submitted that this was the date from which the three-month period started to run in respect of each of the parent's opportunity to make submissions to the Court in accordance with Article 11(6) of the Regulation. Counsel on behalf of the father submitted that time did not start to run because there was incomplete service of documents i.e. not all documents required by the Regulation were served on that date.

9

On 8th November, 2018, one day before the three-month period expired, the Irish Central Authority received a letter from an Irish solicitor, stating that Mr. D.M.M had applied for legal aid and was seeking consent to an extension of the three-month period to make submissions while his legal aid application was being processed. The Irish Central Authority replied by letter dated 20th November, 2018, explaining that their instructions were neither to consent nor object to an adjournment at the next appearance date of 10th December, 2018. When the matter came before the Court on 10th December, 2018, there was no appearance on or on behalf of Mr. D.M.M. Following correspondence, on the 14th January, 2018 the father was represented in Court by a legal aid solicitor and counsel. The Court gave directions for the hearing of argument in relation to the issue of whether the three-month deadline for submissions under Article 11 had expired three months after the 9th August, 2018.

Article 11 of the Council Regulation (EC) 2201/2003
10

Article 11(6) of the Regulation provides: -

‘If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.’

11

Article 11(7) of the Regulation provides: -

‘Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seized by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit.’

12

Article 11(8) of the Regulation provides: -

‘Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.’

13

Article 11 of the Regulation has been considered by Irish Courts and it is clear that, unlike an application under Article 12 of the Hague Convention where the issue is the narrower one of return or non-return in light of the principles and exceptions set out under that...

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