Hampshire County Council v C.E.

• Jurisdiction: Ireland
• Judge: Ms. Justice M�ire Whelan
• Judgment Date: 28 November 2018
• Neutral Citation: [2018] IECA 365
• Date: 28 November 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 365 Record Number: 2018/68

[2018] IECA 365

THE COURT OF APPEAL

Whelan J.

Peart J.

Whelan J.

Costello J.

Neutral Citation Number: [2018] IECA 365

Record Number: 2018/68

IN THE MATTER OF CHAPTER III OF COUNCIL REGULATION (EC) 2201/2003 AND

IN THE MATTER OF FOREIGN PROCEEDINGS BEARING REFERENCE NO. P017P00941

AND

IN THE MATTER OF M.D. A MINOR BORN ON THE 26TH DAY OF MAY 2012

AND

IN THE MATTER OF E.W. A MINOR BORN ON THE 23RD DAY OF AUGUST 2014

AND

IN THE MATTER OF R.E. A MINOR BORN ON THE 3RD DAY OF SEPTEMBER 2017

BETWEEN/

HAMPSHIRE COUNTY COUNCIL

APPLICANT/RESPONDENT

- AND -

C.E.

AND

N.E. (OTHERWISE N.C.)

RESPONDENTS/APPELLANTS

- AND -

CHILD AND FAMILY AGENCY

(BY ORDER)

SECOND RESPONDENT

-AND-

THE ATTORNEY GENERAL

AMICUS CURIAE

Extension of time – Jurisdiction – Ex parte orders – Appellants seeking to appeal from a High Court decision – Whether the notice of appeal was served within time

Facts: The appellants appealed to the Court of Appeal from a decision of Reynolds J made in the High Court on 18th January 2018 wherein the judge held that there was no jurisdiction to extend time to bring an appeal against ex parte orders made pursuant to Council Regulation No. 2201/2003 (the Brussels II bis Regulation). The ex parte orders sought to be appealed against were made by Creedon J on 21st September 2017 pursuant to the Brussels II bis Regulation during a vacation sitting of the High Court. On that date the respondent, Hampshire County Council, obtained orders of recognition and a declaration of enforceability of certain orders of the English High Court, made at Portsmouth on 8th September 2017, as amended, pertaining to the three minors referred to in the title of the proceedings.

Held by Whelan J that no valid service had been shown to have been effected upon the appellants prior to, at the earliest, Monday the 25th September 2017; it followed that the notice of appeal of 24th November 2017 was served within time.

Whelan J held that she would allow the appeal and remit the matter to the High Court for urgent determination of the substantive appeal with priority.

Appeal allowed.

JUDGMENT of Ms. Justice M�ire Whelan delivered on the 28th day of November 2018

1 This is the third judgment delivered by this Court in the course 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 involvement in the matter. In essence the appeal is from a decision of Ms. Justice Reynolds made in the High Court on 18th January 2018 wherein the learned judge held that there was no jurisdiction to extend time to bring an appeal against ex parte orders made pursuant to Council Regulation No. 2201/2003 (‘the Brussels II bis Regulation’).

2 The ex parte orders sought to be appealed against were made by Ms. Justice Creedon on 21st September 2017 pursuant to the Brussels II bis Regulation during a vacation sitting of the High Court. On that date Hampshire County Council (‘HCC’) obtained orders of recognition and a declaration of enforceability of certain orders of the English High Court, made at Portsmouth on 8th September 2017, as amended (‘the Portsmouth orders’), pertaining to the three minors referred to in the title of the proceedings.

Background

3 The first named appellant is the mother of the three minors. The second named appellant is the father of the youngest minor only. To preserve their anonymity, the minors will be referred to pseudonymously throughout. Mella was born on 26th May 2012 and is now aged about six years and a half. Stella was born on 23rd August 2014 and is now aged four years and three months. Ross was born on 3rd September 2017 and is now aged one year and two months.

4 Prior to the events of September 2017, the couple and the minors were habitually resident within the jurisdiction of the courts of England and Wales. The mother was aged twenty four and the father twenty six. The parents come from a socially disadvantaged background. It appears the mother was a victim of domestic violence by a former partner. She subsequently separated from that individual in 2016. In late 2016, she entered into a new relationship with the second named appellant. The couple married in 2017.

5 On 30th June 2017, some months prior to the birth of Ross, HCC obtained an interim care order in relation to Mella and Stella from the Family Court at Portsmouth. That order conferred parental authority on HCC in relation to the two girls and, inter alia, prohibited their removal from the jurisdiction of the courts of England and Wales. They were left in the care and custody of the appellants. It is noteworthy that at the June 2017 hearing in Portsmouth the CAFCASS guardian - charged with ensuring that the decisions of HCC were made in the best interests of the two minors concerned - apparently disagreed with the proposals of HCC in respect of a contemplated placement of the two girls for adoption.

6 It would appear that in the summer of 2017 HCC became aware of the mother's pregnancy. Ross was born on 3rd September 2017. Within twenty four to forty eight hours following his birth, social workers informed the mother of an intention to remove all three minors from the couple. The signature of both parents was procured to a document pursuant to which the second named appellant was required to leave the family home immediately and to have no further contact with any of the three minors without first informing HCC pending the outcome of contemplated court proceedings.

The family in Ireland

7 On 5th September 2017, two days following the birth of Ross, the parents and three minors travelled to Ireland by ferry. They obtained accommodation here. They immediately disclosed their presence in this jurisdiction to relevant authorities including a health nurse and effected registration of the minors with a doctor. Mella and Stella were enrolled in a local school. The family was monitored by the Child and Family Agency (‘the CFA’). The CFA was established in this State pursuant to the provisions of the Child and Family Agency Act, 2013. The said Act came into operation on 1st January 2014. The functions of the CFA under s. 8 of the Act include an obligation to support and promote the development, welfare and protection of children and to support and encourage the effective functioning of families.

8 An affidavit of Claire Farrell, a social worker with the CFA, was sworn in this appeal on 18th April 2018. It confirms that An Garda S�och�na carried out a welfare check in respect of this family on 7th September 2017 and advised the CFA that no concerns were noted in relation to the minors” presentation or their home environment. On 8th September 2017 the CFA was aware that in regard to the older minors, Mella and Stella, interim care orders existed since June 2017 in the jurisdiction of the courts of England and Wales.

9 On 8th September 2017 the CFA advised HCC that to procure the return of the three minors to the jurisdiction of the courts of England and Wales it would be necessary to obtain orders in Ireland pursuant to the Brussels II bis Regulation for the recognition and enforcement of any welfare orders HCC had or might obtain in England.

10 On 8th September 2017 HCC instituted wardship proceedings in relation to the three minors before the Family Courts in Portsmouth. A solicitor who previously acted for the parents in England was apparently informed of the proposed wardship application that same day. There is no evidence before this Court that the solicitor was actually served with the relevant documentation which was relied upon to secure wardship orders and return orders in respect of the minors. The parents were not served with the papers before the Portsmouth orders were made notwithstanding that HCC knew of their whereabouts in Ireland at the time.

11 On 8th September 2017 HCC procured the Portsmouth orders discharging pre-existing interim care orders concerning Mella and Stella and securing in their stead orders making all three minors wards of court together with orders directing their return to the jurisdiction of the courts of England and Wales. The September 8th 2017 Portsmouth orders were later amended on 11th September 2017.

12 It will be recalled that one of the potential grounds of non-recognition of judgments relating to parental responsibility specified in Article 23 of the Brussels II bis Regulation is:

‘(c) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings … in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted that judgment unequivocally.’

Irish Interim Care Order

13 The said affidavit of Claire Farrell deposes that on 11th September 2017 the CFA made an unannounced home visit to the family in Ireland. There is no suggestion that any concern was identified regarding the welfare of the minors during that visit. On 12th September 2017, a further announced visit took place and it was noted that the family home was being maintained to a good standard. There were no concerns noted in relation to the home environment.

14 At the resumed hearing of this appeal, counsel on behalf of HCC confirmed that the parents were served with the Portsmouth orders. The affidavit of Claire Farrell states that HCC had advised her on 11th September 2017 that it was appropriate to inform the parents of the Portsmouth orders relating to the three minors and she duly did so on that date. This communication appears to have been verbal. An affidavit of service of Mr. David Farrell deposes that on 11th September 2017 at 5.30 pm he served upon both appellants a copy of the Portsmouth wardship...