Hampshire County council v C.E.

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 12 April 2019
• Neutral Citation: [2019] IEHC 340
• Docket Number: Record No. 2017/18/FJ
• Court: High Court
• Date: 12 April 2019

[2019] IEHC 340

THE HIGH COURT

Binchy J.

Record No. 2017/18/FJ

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 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 SEPTEMBER 2017

BETWEEN

HAMPSHIRE COUNTY COUNCIL

APPLICANT/RESPONDENT TO APPEAL

AND

C.E.

AND

N.E.

RESPONDENTS/APPELLANTS

Return order – Disclosure – Opportunity to be heard – Appellants seeking to appeal against High Court order – Whether the appellants had an opportunity to be heard

Facts: The High Court (Creedon J) on 21st September, 2017, made orders recognising and enforcing an order of the High Court of England and Wales made in that jurisdiction (in Portsmouth) on 8th September, 2017 (the Return Order) pursuant to Chapter III of EC Council Regulation 2201/2003 (the Regulation). The appellants applied to the High Court to set aside the order of Creedon J and appealed against the order of Creedon J, pursuant to Article 33 of the Regulation.

Held by Binchy J that, notwithstanding the delay on the part of the appellants in bringing forward the application, the Court should exercise its discretion in favour of the appellants and set aside the order of Creedon J because of the failure on the part of the respondent, Hampshire County Council, to make full disclosure to the Court of information that was material to the Court’s consideration of the application before it.

Binchy J held that the Return Order was given in circumstances where the appellants, having parental responsibility for the children, did not have an opportunity to be heard, as required by sub-Article 23(d) of the Regulation, and for that reason the appellants were entitled to succeed with their appeal.

Appeal allowed.

JUDGMENT of Mr. Justice Binchy delivered on the 12th day of April, 2019

1 This judgment is concerned with two applications arising out of the same decision of this Court (Creedon J.) made on 21st September, 2017, whereby Creedon J. ( ex parte) made orders recognising and enforcing an order of the High Court of England and Wales made in that jurisdiction (in Portsmouth) on 8th September, 2017, (‘the Return Order’) pursuant to Chapter III of EC Council Regulation 2201/2003, commonly referred to as Brussels II Bis (the ‘Regulation’). The applications now before this Court are:-

(i) an application to set aside the order of Creedon J. (‘the set aside application’); and

(ii) an appeal against the order of Creedon J. brought pursuant to Article 33 of the Regulation. In an earlier decision in these same proceedings in the Court of Appeal, Hogan J. noted that this right of appeal being, as it is, an appeal from a decision of one judge of the High Court to another judge of the High Court, might more usefully be regarded as in the nature of an application to set aside a provisional order of the High Court made ex parte albeit that it is confined to the limited grounds provided for in Article 23 of the Regulation.

2 There is a very long history leading up to these applications, Following upon the decision of Creedon J., the applicants purported to exercise their right of appeal from that decision, but Reynolds J., on 18th January, 2018, held that the appeal was lodged out of time. The appellants then appealed that decision to the Court of Appeal, and in a decision dated 17th May, 2018, ( Hampshire County Council v. C.E. and N.E. & Ors [2018] IECA 154) that Court decided to refer certain questions to the Court of Justice of the European Union (‘CJEU’). Very soon thereafter, the appellants made a further 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 September, 2018 ( Hampshire County Council v. C.E. and N.E. (Joined Cases C-325/18 PPU and C-375/18 PPU) ECLI:EU:C:2018:739). Following upon that decision, the Court of Appeal, on 28th November, 2018 (under the citation [2018 IECA 365]), handed down its decision on the appeal of the appellants, in the light of the decision of the CJEU, but also having regard to a new argument advanced by the appellants in relation to the appeal period. In that decision the Court of Appeal determined that the appeal of the appellants from the decision of Creedon J. had been brought within the time prescribed by the Regulation, and remitted the appeal itself for determination by this Court as a matter of urgency. The appeal and the set aside application, were heard over three days concluding on 28th March, 2019.

Background

3 The background giving rise to the application made before Creedon J. on 21st September, 2017, has already been set out in considerable detail in the judgments of the Court of Appeal. Nonetheless, it is necessary to rehearse it again in order to make clear the context of the arguments advanced by each of the parties in relation to each application.

4 On 5th September, 2017, the appellants and the three minors referred to in the title to these proceedings travelled to Ireland by ferry from the United Kingdom. The youngest of the three minors, R.E., had been born only two days previously. The appellants had no previous connection to this State and acknowledged that they travelled here with the three minors for the sole purpose of putting themselves out of the reach of the respondent, the respondent having earlier that year (on 30th June) obtained interim care orders pursuant to childcare legislation in the United Kingdom in respect of the two older children, E.W. and M.D. As regards R.E., the respondent had, prior to his birth, indicated an intention to the appellants to make an application for a care order following his birth. These interim care orders made in respect of the two older children included in each case an order prohibiting the appellants from removing the children from the United Kingdom. The first named appellant is the mother of all three children, and the second named appellant is the father of R.E.

5 The circumstances by which the Return Order was obtained by the respondent are central to the determination of both the set aside application and the appeal. In resisting the set aside application and the appeal now before this Court, Mr. Richard Hadley of the respondent swore an affidavit dated 18th December, 2018. He deposes that on 4th September 2017, the respondent received a report from a psychologist regarding the appellants. This report had been procured at the direction of the family court in Portsmouth. The report evaluated the appellants and assessed the risks to the children of being in the care of the appellants. It was obtained to enable that Court to make a determination as regards whether or not to approve care plans previously prepared by the respondent for all three children (even though at this time R.E. had not yet then been born). That report, which was dated 4th September, 2017, included a conclusion that the second named applicant presented a medium to high risk, to any child in his care, of exposure to arguments and violence, and that the first named respondent represented a medium risk to her children as sole carer and medium to high risk when parenting them jointly with the second named respondent.

6 Mr. Hadley avers that on 5th September, 2017, following upon changes in the interim care plans of the respondent relating to the appellants and the children (which changes were made as a result of the report of the psychologist, and which changes included, inter alia, the removal of the children from the care of the appellants), a ‘contract of expectations’ was signed voluntarily by the second named appellant whereby he agreed to leave the family home and not to return without the permission of the family court.

7 On 6th September, 2017, having considered the report of the psychologist, the family court in Portsmouth approved the changes in the interim care plans for the children. On the same date, the Court made an interim care order in respect of R.E., so that all three children were now subject to interim care orders. Mr. Hadley also avers that the childrens' court appointed guardian fully supported the proposed changes in the interim care plan and specifically the application of the respondent to remove the children from the care of the appellants. The appellants did not attend the court hearing on 6th September, 2017, because, by this time they were in Ireland.

8 Mr. Hadley avers that the respondent was not aware that the appellants had left the United Kingdom at the time that the applications to the family court proceeded. He further avers that the appellants were nonetheless represented by counsel at this hearing, and the paternal grandparents of R.E., (mother and stepfather of the second named respondent) did attend that hearing. Mr. Hadley avers that the paternal grandparents informed the Court that the appellants would not be attending because the first named appellant had suffered a bleed during the night following the birth of R.E., and indicated that the first named appellant might need to return to hospital. The solicitors for the parties were unable to contact the appellants by telephone. In any case, the Court on this date made the orders referred to above. After the making of these orders, on the same day, the respondent attended at the home of the appellants to remove the children from the care of the appellants, but received no reply at the door as a result of which police assistance was required. Upon gaining entry to the home, it was apparent to the respondent that the appellants had fled. Mr. Hadley avers that at this point in time the respondent...