McN (M) v R (J)

• Jurisdiction: Ireland
• Judge: Mr. Justice Henry Abbott
• Judgment Date: 02 February 2015
• Neutral Citation: [2015] IEHC 70
• Docket Number: [15 FJ/2014]
• Court: High Court
• Date: 02 February 2015

[2015] IEHC 70

THE HIGH COURT

[15 FJ/2014]

McN (M) v R (J)

FAMILY LAW

IN THE MATTER OF THE JURISDICTION OF COURTS AND ENFORCEMENT OF JUDGMENTS ACT 1998 COUNCIL REGULATION (EC) NO. 44/2001

AND IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985

AND IN THE MATTER OF COUNCIL REGULATION (EC) NO. 2001/2003 (BRUSSELS II REVISED REGULATION 2003)

BETWEEN:

M. McN.

PLAINTIFF

AND

J. R.

DEFENDANT

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 12

FAMILY PROCEDURE (AMDT)(NO.5) SI 3061/2012 (UK) PART 33

PRACTICE DIRECTION 33(A)(UK)

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 18

C (JP) v W (SM) & ANOR 2007 EWHC 1349 (FAM) 2007 3 FCR 243

Family law – Art. 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 – Modification of orders of Courts of another jurisdiction – Jurisdiction of Court regarding access to children

Facts: Following an order by the Court of Ireland for attachment and committal of the defendant for failing to comply with the order of the master of High Court, which was giving effects to the orders passed by the United Kingdom Court regarding care and custody of the children of the plaintiff and the defendant, the plaintiff now came to the Court by way of an ex parte application to vary the orders of U.K. Courts.

Mr. Justice Henry Abbott vacated the orders of the Court of Ireland regarding attachment of the defendant and held that the jurisdiction to adjudicate the issues between the plaintiff and the defendant had been vested with the District Court of Ireland. The Court held that since the order of the U.K. Court merely recorded the intention of the parties and return of the children to the jurisdiction of Ireland under the Hague Convention, it could not be held to be binding on the parties regarding issues of access of children. The Court observed that since the children of the parties were habitually resident in Ireland, any matter regarding their access must be handled by the Courts in Ireland only.

Mr. Justice Henry Abbott

1 This matter has come before the High Court by way of anex parte application on behalf of the plaintiff who has represented herself throughout the course of proceedings. Her application originates in an order of Keehan J. of the High Court of Justice, Family Division, in the jurisdiction of England and Wales, dated the 23 January, 2014, as follows:-

1 The children, W. McN. and H. McN. shall be summarily returned to the Republic of Ireland forthwith and by no later than 23.59 on the 25th January 2014, pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980. The Applicant father shall effect the return of the children, the Respondent mother shall handover the children to the father at East Midlands airport on 25 January 2014 at a time to be specified by the Applicant father and in any event at least two hours ahead of the flight booked by the Applicant father. The Applicant father shall fund the flights in relation to himself and the children so as to effect the return of the children.

2 The Respondent mother shall handover the children to the Applicant father at East Midlands Airport pursuant to paragraph 1 (the exact venue at the said airport to be arranged by solicitors by no later than 4pm on the 24th January 2014).

3 The Tipstaff shall forthwith release all passports and other travel documentation currently in his possession in respect of the children to the Applicant's solicitors [ ]. The Applicant's solicitors or their agents shall thereafter deliver up the children's passports and other travel documentation to the Applicant at East Midlands Airport and thereafter Tipstaff shall hand back the Respondent's passports and other travel documentation to the Respondent upon confirmation that the children have left England and Wales.

4 The Port Alert and all injunctive provisions contained within the Tipstaff Location Order dated 26 November 2013 shall remain in force,save that such provisions as are necessary shall be lifted so as to allow the return of the child to the Republic of Ireland, in accordance with paragraph 1 of this order, and thereafter all such provisions shall be discharged once the Applicant and the child have left the jurisdiction, in accordance with paragraph 1 of this order. The Applicant's solicitors shall inform the Tipstaff once the Applicant and child have left the jurisdiction, in accordance with paragraph 1 of the order.

5 The Respondent shall lodge her USA passport with her solicitors by 9am on 24th January 2014 and the Respondent's solicitors shall then confirm in writing to the Applicant's solicitor that they have the passport and then hold the said passport to the order of the court and shall only release it to the Respondent when there is written confirmation from the Applicant's solicitors that the children have left England and Wales.

6 There shall be permission to the parties to disclose this order, today's judgement and the papers filed in these proceedings to any lawyers that they may instruct in the Republic of Ireland in respect of any current or future proceedings in relation to the parties and/or child and to the relevant court in the Republic of Ireland.

7 A penal notice shall be attached to the Applicant's and Respondent's undertakings set out above and to paragraph 1 of this Order, pursuant to Part 33 of the Family Procedure Rules 2012 and Practice Direction 33A.

8 There shall be liberty to the parties to apply as to the implementation of this order and undertakings set out below on short notice before the Applications Judge sitting in the Family Division, The Royal Courts of Justice, The Strand, London, WC2A 2LL.

9 Permission is given for a copy of this order to be served upon the Tipstaff, airport police, airport security, the airline carrier, the children's current school in England and Wales and Derbyshire social services.

10 For the avoidance of doubt, all previous orders and undertakings in these proceedings shall forthwith be discharged, save for in relation to...