Hampshire County Council v C.E.

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 17 May 2018
• Neutral Citation: [2018] IECA 154
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 154
• Date: 17 May 2018

[2018] IECA 154

THE COURT OF APPEAL

Hogan J.

Peart J.

Hogan J.

Mahon J.

Neutral Citation Number: [2018] IECA 154

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 -

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

Brussels II bis Regulation – Jurisdiction – Extension of time – Appellants seeking to appeal against an order of the High Court – Whether there was jurisdiction to extend time

Facts: The defendants/appellants, the parents, are UK nationals who arrived in the State on 5th September 2017 with three young children. The two oldest children were the subject of interim care orders which had been made in the UK prior to their arrival in the State. On 8th September 2017 the English High Court made an order making all three children wards of court. The order further directed that the children be returned to the custody of the applicant/respondent, Hampshire County Council. On the 8th September 2017 Hampshire indicated to the Child and Family Agency (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 Council Regulation No. 2201/2013 (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. 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 the jurisdiction. On 24th November 2017 the parents filed a notice of motion in the High Court seeking to appeal the order of Creedon J as provided for by Ord. 42A, r. 13 of the Rules of the Superior Courts. On 18th January 2018 Reynolds J held that the parents were out of time (by two days) to lodge an appeal and that in view of the provisions of Article 33(5) of Brussels II bis Regulation there was no jurisdiction to extend time for the purposes of appeal of this kind. The parents appealed that decision to the Court of Appeal.

Held by Hogan J that the Court should refer the following further questions to the CJEU pursuant to Article 267 TFEU, namely: (ii) In a case concerning the enforcement provisions of Council Regulation (EC) 2201/2003 is there a jurisdiction to extend time for the purposes of Article 33(5) where the delays are essentially de minimis and an extension of time would otherwise have been granted by reference to national procedural law? (iii) Without prejudice to question (ii) where a foreign public authority removes the children, the subject matter of the dispute, from the jurisdiction of a Member State pursuant to an enforcement order made ex parte in accordance with Article 31 of Council Regulation (EC) 2201/2003 but before the service of such order on the parents thereby depriving them of their rights to apply for a stay of such an order pending an appeal, does such conduct compromise the essence of parents' entitlement under Article 6 ECHR or Article 47 of the EU Charter of Fundamental Rights such that an extension of time (for the purposes of Article 33(5)) of that Regulation) should otherwise be granted?

Hogan J held that the outcome of the appeal should stand adjourned pending the response of the Court of Justice to the questions referred.

Reference to Europe.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 17th day of May 2018

1 This appeal from the decision of the High Court (Reynolds J.) delivered on 18th January 2018 raises difficult and complex questions regarding the scope and operation of Council Regulation No. 2201/2013 ('the Brussels II bis Regulation'). The background to this appeal is as follows:

2 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. 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. The order further directed that the children be returned to the custody of Hampshire County Council. Meanwhile Hampshire County Council ('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, R., 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 the 14th September 2017 the local District Court granted interim care orders in respect of the three children on the application of the CFA. These orders were expressed to last for a fourteen day period up to the 26th September 2017 and the children were then placed in foster care accommodation. The parents consented to the making of the interim care orders on a without prejudice basis. The District Court had before it a report from the CFA which stated that 'U.K. Social Services are awaiting a ratification of a recovery order for the children in the Irish High Court'. Following the making of the interim care order, a care plan meeting was arranged by members of the CFA with the parents. They were expressly informed that Hampshire County Council intended to have the return order which had just been made by the English High Court enforced by means of an ex parte application to the High Court and have the children returned to the United Kingdom in accordance with that order.

8 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.

9 The three children were handed over by representatives of the CFA to social workers attached to Hampshire County Council later that afternoon at Rosslare Ferry Port and the children were then returned to the United Kingdom in the company of social workers from Hampshire Social Services. The parents were notified of this development only after the children had left the State and it is agreed that the Hampshire social workers had expressly requested their CFA counterparts not to contact them because they were considered to be a flight risk.

10 The parents were then formally served with the ex parte order of the High Court on the following day, 22nd September 2017. Representatives of the CFA subsequently attended before the District Court on 26th September 2017 and produced a copy of the order of Creedon J. The interim child care proceedings were then struck out by the District Court. It is, I fear, impossible not to have the deepest misgivings about the conduct of two public institutions, one British (Hampshire County Council) and one Irish (the CFA), in this entire matter. I propose to return to the circumstances in which the children were handed over to the custody of Hampshire County Council social workers later in this judgment.

11 The parents then endeavoured to appeal the order of the English High Court which had been made on...