Hampshire County Council v C.E and N.E.

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Gerard Hogan
Judgment Date07 June 2018
Neutral Citation[2018] IECA 157
Date07 June 2018
Docket NumberNeutral Citation Number: [2018] IECA 157

[2018] IECA 157

THE COURT OF APPEAL

Hogan J.

Peart J.

Hogan J.

Mahon J.

Neutral Citation Number: [2018] IECA 157

Record No. 2018/68

IN THE MATTER OF CHAPTER III OF COUNCIL REGULATION (EC) 2201/2003 AND IN THE MATTER OF FOREIGN PROCEEDINGS BEARING REFERENCE NO. P017POO941 AND IN THE MATTER OF E. W. A MINOR BORN ON THE 23RD DAY OF AUGUST 2014 AND IN THE MATTER OF M.D. A MINOR BORN ON THE 26TH DAY OF MAY 2012 AND IN THE MATTER OF R.E. A MINOR BORN ON THE 3RD DAY OF SEPTEMBER 2017

BETWEEN/
HAMPSHIRE COUNTY COUNCIL
APPLICANT / FIRST RESPONDENT
- AND -
- AND -
CHILD AND FAMILY AGENCY
(BY ORDER) SECOND RESPONDENT
-AND-
THE ATTORNEY GENERAL (NO.2)
AMICUS CURIAE

Adoption – EU law – Interlocutory injunction – Appellants seeking interlocutory injunction – Whether it is compatible with the provisions of Council Regulation (EC) 2201/2003 for the courts of one Member State to grant an interlocutory injunction directed in personam at the public body of another Member State preventing that body arranging for the adoption of children in the courts of that other Member State where the in personam injunction arises from the necessity to protect the rights of the parties in enforcement proceedings arising under Chapter III of the 2003 Regulation

Facts: The respondents/appellants, following the delivery of the first judgment of the Court of Appeal in this matter on 17th May 2018 (Hampshire County Council v C.E. [2018] IECA 154) and the subsequent reference which was made to the Court of Justice of the European Union pursuant to Article 267 TFEU, applied to the Court of Appeal by motion on notice for an order directed at the applicant/first respondent, Hampshire County Council, restraining it from proceeding with the adoption of three young children. Beyond filing what was described as a statement of position with the Court, Hampshire elected once again not to participate in this appeal or to file an affidavit in response to this motion. Hampshire had, however, more recently insisted in this statement of position that it was proposed only to proceed with the adoption of the new-born.

Held by Hogan J that it was necessary that the Court should refer the following further question to the CJEU pursuant to Article 267 TFEU, namely: "Whether it is compatible with EU law and, specifically, the provisions of Council Regulation (EC) 2201/2003, for the courts of one Member State to grant an interlocutory injunction (protective measures) directed in personam at the public body of another Member State preventing that body arranging for the adoption of children in the courts of that other Member State where the in personam injunction arises from the necessity to protect the rights of the parties in enforcement proceedings arising under Chapter III of the 2003 Regulation?"

Hogan J held that the outcome of this application for an interlocutory injunction should stand adjourned pending the response to the Court of Justice to the further question referred. Hogan J further proposed that the Court of Justice should also be requested to treat this further Article 267 TFEU reference as a PPU reference in accordance with Rule 107 of its Rules of Procedure if it should consider it appropriate to do so.

Reference to Europe.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 7th day of June 2018
1

Following the delivery of the first judgment of this Court in this matter on 17th May 2018 ( Hampshire County Council v. C.E. [2018] IECA 154) and the subsequent reference which we made to the Court of Justice of the European Union pursuant to Article 267 TFEU, counsel for the Mr. and Ms. E. have now applied to this Court by motion on notice for an order directed at Hampshire County Council ('Hampshire') restraining it from proceeding with the adoption of three young children. Beyond filing what is described as a statement of position with the Court, Hampshire has elected once again not to participate in this appeal or to file an affidavit in response to this motion. Hampshire has, however, more recently insisted in this statement of position that it is proposed only to proceed with the adoption of the new-born, R.

The background to the present application
2

While the detailed facts of this complex matter are set out in the first judgment, it is necessary again to narrate the basic facts. The two defendants are U.K. nationals who arrived in this State by ferry on 5th September 2017 with three young children, one of whom had been born in the U.K. just two days previously. Ms. E. is the mother of all three children whereas Mr. E. is the father of the newborn child, R., only. The two oldest children were the subject of interim care orders which had been made in the United Kingdom prior to the arrival of the children in this State. Purely for reasons of convenience I shall describe them in this judgment as 'the parents', even though Mr. E. is not actually the father of the two older children.

3

On 8th September 2017 the English High Court made an order making all three children wards of court. Other orders had previously been made by the English courts in respect of the children. The order further directed that the children be returned to the custody of Hampshire County Council. Meanwhile Hampshire had made contact with its counterparts in the Child and Family Agency ('CFA') regarding the family. Their location at a particular (named) address in the State was quickly established by local Gardaí.

4

Concerns had previously been expressed by Hampshire social services regarding this family, including the standards of hygiene within the home, the parental capacity to manage their children's behaviour, domestic violence in previous relationships and parental substance abuse. It also appeared that one of the children had suffered a non-accidental injury and the possibility that Mr. E. was the perpetrator could not be excluded. It was essentially for these reasons that the children had been taken into care.

5

On the 8th September 2017 Hampshire indicated to the CFA that it intended to seek an order from the English High Court providing for the return of the children. For its part the CFA indicated that any such orders would need first to be enforced under the Brussels II bis Regulation. Later that day Hampshire informed the CFA that the requisite orders had indeed been made by the English High Court.

6

On 11th September 2017 the CFA made an unannounced home visit to the address in the State at which the E. family were now residing. It is important to state that nothing of concern was found by the CFA during the course of either that visit or on subsequent visits. The parents informed the CFA that they had been advised to travel to Ireland to avoid the UK social services and to stop Hampshire taking the children into care. They were advised in turn that the CFA would be applying for an interim care order based on the concerns and information which had been received from Hampshire's Children's Services. A social worker representative of the CFA advised the parents that Hampshire might apply to have the return order recognised in Ireland by means of an application to the High Court and that if Hampshire were successful the children would then be returned to the United Kingdom.

7

On 21st September 2017 an order was made by the High Court (Creedon J.) pursuant to Chapter III of the Brussels Regulation II bis recognising the English High Court order, and ordering that the said order 'be enforced in this jurisdiction.' A copy of that order was forwarded shortly before 3pm that afternoon to the CFA's solicitors. Those solicitors then immediately forwarded a copy of that order to the CFA social workers who were dealing with the case.

8

The three children were handed over by representatives of...

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6 cases
  • Hampshire County Council v E
    • Ireland
    • Court of Appeal (Ireland)
    • 9 April 2020
    ...to the Court of Appeal resulting in a further judgment and referral of a further question to the CJEU ( Hampshire County Council v. C.E. [2018] IECA 157); (v) opinion of Advocate General Kokott, delivered on the 7th August 2018 (EU:C: 2018:654); (vi) decision of the CJEU on all the question......
  • Hampshire County Council v C.E.
    • Ireland
    • Court of Appeal (Ireland)
    • 28 November 2018
    ...of this appeal. Previous judgments were delivered by Hogan J. (as he then was) on 17th May 2018, [2018] IECA 154, and 7th June 2018, [2018] IECA 157. Those judgments set out in some detail the complex personal circumstances of the appellants and events which led to this Court's involvemen......
  • Hampshire County council v C.E.
    • Ireland
    • High Court
    • 12 April 2019
    ...application to the Court of Appeal, resulting in a further decision from the Court of Appeal on 7th June, 2018 (under the citation [2018] IECA 157), by which it referred another question to the CJEU. The decision of the CJEU on all the questions referred to it was handed on down on 19th Se......
  • Hampshire County Council v E
    • Ireland
    • Court of Appeal (Ireland)
    • 24 July 2020
    ...Court of Justice of the European Union (“CJEU”) ( Hampshire County Council v. C.E. [2018] IECA 154 and Hampshire County Council v. C.E. [2018] IECA 157). Following the composite judgment of the CJEU on 19 September 2018 ( Hampshire County Council v. C.E. (Joined Cases C-325/18 PPU and C-375......
  • Request a trial to view additional results

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