Hampshire County Council v C.E.

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 30 July 2019
• Neutral Citation: [2019] IEHC 641
• Court: High Court
• Docket Number: [2017 No. 18 FJ]
• Date: 30 July 2019

[2019] IEHC 641

THE HIGH COURT

Binchy

[2017 No. 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 M.D. A MINOR BORN ON THE 26TH DAY OF MAY 2012

AND

IN THE MATTER OF E.W. A MINOR BORN ON 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 TO APPEAL

AND

C.E.

AND

M.E.

RESPONDENTS/APPELLANTS

Jurisdiction – Parental responsibility – Habitual residence – Appellants seeking the return of children from England to Ireland’s jurisdiction – Whether the courts of England and Wales had jurisdiction as regards matters of parental responsibility for the children

Facts: The High Court (Binchy J), on 12th April, 2019, delivered a decision whereby: (1) it allowed the appeal of the appellants against an order made by Creedon J (ex parte) (the Recognition Order) recognising and enforcing an order of the High Court of England and Wales (the Return Order) made pursuant to Chapter III of EC Council Regulation 2201/2003 (the Regulation); and (2) it set aside the Recognition Order pursuant to an application to set aside the same brought by the appellants. Apart from seeking costs, the appellants also sought further orders from the High Court directing the return from England to Ireland’s jurisdiction of children in light of the fact that the Return Order was not recognised in Ireland’s jurisdiction. It was on the basis of that order that the respondent, Hampshire County Council, assisted by the Child and Family Agency (the CFA) in Ireland’s jurisdiction, returned the children to England. For its part, the respondent, while not appealing the judgment delivered by Binchy J on 12th April, 2019, submitted that, in the particular circumstances of this case, no order as to costs should be made and nor should the Court make any further orders in these proceedings. The Court, it was submitted, was functus officio. The appellants contended that they were entitled to be put back in the same position that they were in prior to the Recognition Order; this meant that the children must be returned to Ireland and that it was of no concern to the Court what happened thereafter, which, in the absence of agreement, would have to be addressed through further proceedings.

Held by Binchy J that, insofar as the appellants sought the reliefs concerned pursuant to the Guardians of

Infants Act 1964, the respondent was correct in arguing that the Court should decline jurisdiction in relation to those proceedings, pursuant to Article 17 of the Regulation. This followed from Binchy J’s conclusion that the courts of England and Wales had jurisdiction as regards matters of parental responsibility for the two older children. In Binchy J’s judgment, the third child had at all times been habitually resident in the United Kingdom and subject to the jurisdiction of the Courts of England and Wales. That being the case, Binchy J held that the Court should not make an order for the return of the third child to Ireland’s jurisdiction, notwithstanding the highly unsatisfactory circumstances by which he was returned to England. Also, for the same reasons given in the cases of the two older children, Binchy J held that the Court should decline jurisdiction in the proceedings issued pursuant to the 1964 Act.

Binchy J held that the reliefs sought by the appellants would be refused.

Reliefs refused.

JUDGMENT of Mr. Justice Binchy delivered on the 30th day of July, 2019

1 On 12th April, 2019 I delivered a decision whereby:-

1. I allowed the appeal of the appellants against an order made by Creedon J. ( ex parte) (the “Recognition Order”) recognising and enforcing an order of the High Court of England and Wales (the “Return Order”) made pursuant to Chapter III of EC Council Regulation 2201/2003 (the “Regulation”) and

2. I set aside the Recognition Order pursuant to an application to set aside the same brought by the appellants.

2 This judgment is concerned with relief sought by the appellants as a consequence of the orders made by me on 12th April, 2019 Hampshire County Council v. C.E. & anor. [2019] IEHC 340), which were not appealed. I heard comprehensive submissions from the parties as regards what further orders, if any, should be made arising out of that decision, on 21st May, 2019.

3 In short, apart from seeking costs as they do, the appellants are also seeking further orders from this Court directing the return from England to this jurisdiction of the children referred to in the title to these proceedings in light of the fact that the Return Order is not now recognised in this jurisdiction. It was on the basis of that order that the respondent, assisted by the Child and Family Agency (the “CFA”) in this jurisdiction, returned the children to England.

4 For its part, the respondent, while not appealing the judgment delivered by me on 12th April, 2019, submits that, in the particular circumstances of this case, no order as to costs should be made and nor should the court make any further orders in these proceedings. This Court, it is submitted, is now functus officio.

5 Put at its simplest, it is the appellants’ contention that they are entitled to be put back in the same position that they were in prior to the Recognition Order. This means that that the children must be returned to Ireland and that it is of no concern to this Court what happens thereafter, which, in the absence of agreement, will have to be addressed through further proceedings.

6 The reliefs now sought by the appellants were not sought in the framework of the application to set aside the Recognition Order, or within the context of the appeal against that order. However, for the purposes of seeking the reliefs now sought, the appellants delivered points of claim on 3rd May, 2019, to which the respondent replied by points of defence delivered on 16th May, 2019.

7 Furthermore, the appellants caused the issue of a summons pursuant to the Guardians of Infants Act 1964, (as amended) (the “Act of 1964”) on 9th May, 2019 (concerning all three children referred to in the title to the proceedings) as well as a notice of motion dated 16th May, 2019. That notice of motion came on for hearing before this Court on 21st May, 2019, the same date on which I received submissions from the parties on the question as to what, if any, further orders I should make arising out of the judgment delivered by me on 12th April, 2019.

8 The points of claim and the motion issued by the appellants in substance claim the same reliefs if by different routes. The substance of the reliefs sought is an order directing the return of the three children to this jurisdiction, into the care of the appellants. In the points of claim, the relief is sought on the basis of the decision of this Court of 12th April, 2019, as well as the judgments of the Court of Appeal of 17th May ( Hampshire County Council v. C.E. and N.E. & Ors [2018] IECA 154), 7th June and 28th November, 2018 (under the citations [2018] IECA 157 and [2018] IECA 365) and the judgment of the Court of Justice of the European Union (“CJEU”) of 19th September, 2018 (Joined Cases C-325/18 PPU and C-375/18 PPU) ECLI:EU:C:2018:739). Relief is also sought pursuant to s. 14 of the Act of 1964.

9 In the points of claim, it is claimed that the first named appellant is custodian and guardian of all three children, and that both appellants are the sole guardians and custodians of the third named child, R.E. It is claimed that there is no order which is recognised or enforceable in this jurisdiction giving custody, parental responsibility or any other rights to any other third party. In their points of claim, the appellants invoke the previous decisions of the Court of Appeal and the CJEU in these proceedings, referred to above, as well as the decisions of the Supreme Court in The State (Quinn) v. Ryan [1965] I.R. 70 and The State (Trimbole) v. the Governor of Mountjoy Prison [1985] I.R. 550 in support of the claim of the appellants to an effective remedy having regard to the decisions of this Court to set aside recognition of the Return Order and also to allow the appeal against the Recognition Order.

10 In the points of claim, it is further claimed, in the alternative, that this Court has an inherent and equitable jurisdiction to make orders to uphold the constitutional rights of the appellants, and/or to give effect and meaning to orders of this Court. The appellants rely upon the decision of the Supreme Court in the case of N. v. Health Service Executive [2006] IESC 60.

11 The appellants further rely upon the Act of 1964. They also rely on authorities from the United States in which cases, they submit, orders of the kind that they now seek in these proceedings were granted namely, the decision of the Supreme Court of the United States in the case of Chafin v. Chafin 568 U.S. 165 (2013) and the decision of the Court of Appeals, 7th Circuit, in the United States, in the case of Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013) (25th July, 2013).

12 In the points of defence filed on behalf of the respondent, it is pleaded that this Court has no jurisdiction to adjudicate on the matters raised. It is pleaded that proceedings concluded with the decision of this Court of 12th April, 2019.

13 It is pleaded that the father of E.W., namely Mr. W, who is not only the father of E.W. but is also the primary carer of both of the older children M.D. and E.W., pursuant to a final care order made in England at the behest of the respondent, should have been put on notice of the reliefs now sought by the appellants, and in particular should have been served with the special summons and notice of motion issued by the appellants, and that there was no such service.

14 It is further pleaded that there is...