Hampshire County Council v E

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 09 April 2020
• Neutral Citation: [2020] IECA 100
• Docket Number: Record No. 2019/434
• Court: Court of Appeal (Ireland)
• Date: 09 April 2020

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

- AND -

IN THE MATTER OF FOREIGN PROCEEDINGS BEARING NO. PO17P00941

- AND -

IN THE MATTER OF M.D. A CHILD BORN ON

THE 26th DAY OF MAY 2012

- AND -

IN THE MATTER OF E.W. A CHILD BORN ON

THE 23rd DAY OF AUGUST 2014

- AND -

IN THE MATTER OF R.E. A CHILD BORN ON

THE 3rd DAY OF SEPTEMBER 2017

BETWEEN/

HAMPSHIRE COUNTY COUNCIL

RESPONDENT

-AND-

C.E.

AND

N.E.

APPELLANTS

[2020] IECA 100

Whelan J.

Costello J.

Noonan J.

Record No. 2019/434

THE COURT OF APPEAL

Recognition order – Consequential relief – Return – Appellants seeking consequential relief – Whether the vindication by restitution of the appellants’ constitutional rights required the High Court to consequentially direct the return of the children

Facts: The appellants appealed to the Court of Appeal against the order of Binchy J perfected on the 27th September 2019, following delivery of a written judgment ([2019] IEHC 641) on the 30th July 2019, refusing to grant certain consequential relief sought by the appellants arising out of orders made by him on the 12th April 2019 in earlier proceedings between the same parties ([2019] IEHC 340). In the earlier proceedings, the trial judge allowed the appeal and set aside the order made ex parte by Creedon J on the 21st September 2017 (the Recognition Order) recognising and enforcing the order of the High Court of England and Wales made on the 8th September 2017 (the Return Order) pursuant to Chapter III of Council Regulation (EC) 2201/2003 (the Regulation) in relation to the three children named in the title. The appellants contended that the vindication by restitution of their constitutional rights, particularly to a family life with the said children, pursuant to Bunreacht na hÉireann, required the High Court to consequentially direct the return of the said children to this jurisdiction and further direct the transfer of any substantive proceedings extant before the courts of England and Wales concerning the children, as fell within the scope of the Regulation, pursuant to Article 15.

Held by Whelan J that the trial judge did not err in the exercise of his discretion as to whether to make consequential orders in finding that it was not appropriate to so order. Whelan J held that the trial judge did not have insufficient regard to the wrongful behaviour of the respondent, correctly assessed the Regulation and did not err in the exercise of his discretion in adverting to and taking into account the habitual residence of the three children. Whelan J held that the trial judge was correct not to accede to the application insofar as it was premised on the appellants’ contention that there was no reason involving the welfare of the children why they should not be returned even on a temporary basis; a proposition which would entail uprooting the children from caregivers with whom they had been residing for two years.

Whelan J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Ms. Justice Máire Whelan delivered on the 9th day of April 2020

Introduction

1 This is an appeal against the order of Binchy J. perfected on the 27th September 2019, following delivery of a written judgment ( Hampshire County Council v. C.E. [2019] IEHC 641) on the 30th July 2019, refusing to grant certain consequential relief sought by the appellants arising out of orders made by him on the 12th April 2019 in earlier proceedings between the same parties ( Hampshire County Council v. C.E. [2019] IEHC 340). In the said earlier proceedings, the trial judge allowed the appeal and set aside the order made ex parte by Creedon J. on the 21st September 2017 (“the Recognition Order”) recognising and enforcing the order of the High Court of England and Wales made on the 8th September 2017 (“the Return Order”) pursuant to Chapter III of Council Regulation (EC) 2201/2003 (“the Regulation”) in relation to the three children named in the title hereof.

2 The appellants contended that the vindication by restitution of their constitutional rights, particularly to a family life with the said children, pursuant to Bunreacht na hÉireann, required the High Court to consequentially direct the return of the said children to this jurisdiction and further direct the transfer of any substantive proceedings now extant before the courts of England and Wales concerning the children, as fell within the scope of the Regulation, pursuant to Article 15.

Background

Events leading to the family's arrival in Ireland and return of the children to England

3 There is a complex litigation history to these proceedings, which have been the subject of determinations and judgments, inter alia, in this court, the High Court and the Court of Justice of the European Union (“CJEU”) including as follows:

(i) decision of Creedon J. in the High Court on the 21st September 2017;

(ii) decision of Reynolds J. in the High Court on the 18th January 2018, holding that an application to appeal the order of 21st September 2017 had been lodged out of time;

(iii) appeal to the Court of Appeal, judgment dated 17th May 2018 ( Hampshire County Council v. C.E. [2018] IECA 154), wherein the court referred certain questions to the CJEU;

(iv) thereafter, the appellants made a further application 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 questions referred to it, delivered on the 19th September 2018 Hampshire County Council v. C.E. (Joined Cases C-325/18 PPU and C-375/18 PPU) EU: C: 2018:739);

(vii) judgment of the Court of Appeal, delivered on the 28th November 2018 ( Hampshire Comity Council v. C.E. [2018] IECA 365);

(viii) judgment of the High Court, delivered on the 12th April 2019 ( Hampshire County Council v. C.E. and N.E. [2019] IEHC 340), wherein Binchy J. allowed the appeal against the order of Creedon J. of the 21st September 2017.

4 The appellants are UK nationals who arrived in this State on the 5th September 2017 with three young children aged five years, three years, and an infant born in the UK two days before. The first appellant is the mother of all three children. The second appellant is the father of the youngest child, R. The three children were, at the date of the hearing of this appeal, aged seven and a half years, five years and three months, and two years and two months respectively. At all material times they resided in England. The appellants married in 2017. The appellants have no previous connection to this State and acknowledged that they travelled here for the primary purpose of preventing the children being taken into the care of the respondent.

5 On the 30th June 2017, the respondent had obtained interim care orders in respect of the two older children, M. and E. Those orders conferred parental authority on the respondent in relation to them and, inter alia, prohibited their removal from the jurisdiction of the courts of England and Wales. In regard to R., prior to his birth the respondent had indicated an intention to make an application to court for a care order following his birth. In anticipation that this would occur, the appellants travelled to this jurisdiction with the three children on the 5th September 2017.

6 Following their arrival in Ireland on the 5th September 2017, the appellants rented accommodation for the family and immediately disclosed their presence to relevant authorities, including the local area health nurse, and effected registration of the children with a doctor. M. and E. were also enrolled in the local school. The appellants' contention is that they intended to reside in this jurisdiction permanently with the three children.

7 On the 6th September 2017, the respondent applied without notice to the appellants to the family court in Portsmouth seeking approval to certain changes in the interim care plans for M. and E. and an interim care order in respect of R. The respondent was not aware at this point that the appellants were no longer within the jurisdiction of the courts of England and Wales.

8 On the 7th September 2017 the respondent made contact with its counterparts in the Child and Family Agency (“the CFA”) regarding the family and became aware of their address in Ireland.

9 On the 8th September 2017 the High Court in Portsmouth made, inter alia, the Return Order, an order making all three children wards of court and further directing that the children be returned to the jurisdiction of England and Wales and to the custody of the respondent. No effort was made to serve the appellants or put them on notice in connection with this application prior to the hearing.

10 On the 11th September 2017 the CFA made an unannounced home visit to the appellants' home in Ireland. During the course of this visit, the parents informed the CFA that they had been advised to travel to Ireland to stop the respondent taking the children into care. The appellants were informed of the making of the Return Order in England. Nothing of concern was found by the CFA during the course of either that visit or a subsequent announced visit the following day. During the second visit, the appellants were advised that the CFA would be applying to the District Court for an interim care order based on the concerns and information received from the respondent and that the respondent might apply to have the Return Order recognised and enforced in Ireland and, if successful, the children would then be returned to the UK.

11 On the 14th September 2017, on the application of the CFA, the local District Court granted interim care orders in respect of the three children with the consent of the appellants who had no legal representation. The children were then taken from the...