P.M. v Judge Mary Devins and another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Henry Abbott |
| Judgment Date | 02 July 2007 |
| Neutral Citation | [2007] IEHC 380 |
| Court | High Court |
| Docket Number | [2006 No. 1307 JR] |
| Date | 02 July 2007 |
[2007] IEHC 380
THE HIGH COURT
BETWEEN
AND
AND
EEC REG 2201/2003 ART 2
M (C) v DELEGACION PROVINCIAL DE MALAGA 1999 2 IR 363 1999 2 ILRM 103
B, IN RE 1993 1 FLR 993
S (AP) v S (AF) UNREP SUPREME 29.11.2004 2004/45/10409 2004 IESC 95
SWADDLING v ADJUDICATION OFFICER 1999 ECR I-1075
F (A MINOR), RE 1992 1 FLR 548
AL HABTOOR v FOTHERINGHAM 2001 1 FLR 951
AKBARALI v BRENT LONDON BOROUGH COUNCIL 1983 2 AC 309
KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642
DEVLIN v MIN FOR ARTS CULTURE & THE GAELTACHT & ORS 1999 1 IR 47
R v CHIEF CONSTABLE OF NORTH WALES POLICE EX PARTE EVANS 1982 1 WLR 1155
LENNON v DISTRICT JUSTICE CLIFFORD 1992 1 IR 382
BRADLEY JUDICIAL REVIEW 2000 223
R v INDEPENDENT TELEVISION COMMISSION EX PARTE TV NI LTD 1991 TLR 606
RIORDAN v AN TAOISEACH 1999 4 IR 343 1998/37/13940
RIORDAN v AN TAOISEACH 1999 4 IR 321
DPP v MCDONNELL UNREP BARR 1.10.1990 1990/9-10/2594
DICEY & MORRIS ON THE CONFLICT OF LAWS 12ED 1993 161-163
EEC REG 2201 2003 BRUSSELS II BIS ART 3(1)(a)
L (F) v L (C) UNREP FINLAY GEOGHEGAN 25.1.2006 2006 IEHC 66
MARK v MARK 2005 3 WLR 111
FARRELLY v DEVALLY & DPP 1998 4 IR 76 1997/3/953
GUARDIANSHIP OF INFANTS ACT S10(2)(a)
COMMISSION OF THE EUROPEAN COMMUNITIES GREEN PAPER ON APPLICABLE LAW & JURISDICTION IN DIVORCE MATTERS COM (2005) 82 FINAL 3 PARA 2.1
LOWE NEW BRUSSELS II REGULATION: A SUPPLEMENT TO INTERNATIONAL MOVEMENT OF CHILDREN 2005 22
OVERSEAS UNION INSURANCE LTD v NEW HAMPSHIRE INSURANCE CO 1991 ECR 3317 1992 1 QB 434 1992 2 AER 138 1992 2 WLR 586
BORRAS EXPLANATORY REPORT ON THE BRUSSELS CONVENTION 1998 OJ C221/27
HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980
STONE EU PRIVATE INTERNATIONAL LAW:HARMONIZATION OF LAWS 200
CONSTITUTION
COURTS
Jurisdiction
Children - Habitual residence - Parental responsibility - Unmarried father not guardian - Guardianship and custody orders - Children taken outside jurisdiction by mother - Whether habitual residence in Ireland lost - Whether new habitual residence established - Issue of jurisdiction argued before and decided by District Court - Affirmed by Circuit Court on appeal - Whether judicial review appropriate - Farrelly v Devally [1998] 4 IR 76 and CM v Delegación de Malaga [1999] 2 IR 363 applied - Council Regulation 2201/2003 (EC), articles 2 and 8 - Relief refused (2006/1207JR - Abbott J - 2/7/2007) [2007] IEHC 380
M(P) v Judge Devins
The applicant applied by way of judicial review for inter alia an order of certiorari quashing the order made by the respondent appointing the notice party as guardian of the children and granting the notice party sole custody of the children. The applicant submitted that the question was whether the District Court directed itself properly in assessing whether Ireland had jurisdiction under the Brussels II bis Regulation when the notice party issued his application. The applicant submitted that if the children did not have a habitual residence in Ireland then the Irish courts did not have jurisdiction. The notice party contended that it was not for a court hearing an application for judicial review to take on an appellate jurisdiction.
Held by Abbott J. in refusing the application for judicial review that the decision of a court when making a decision in relation to jurisdiction under Brussels II bis on habitual residence was one of mixed fact and law and the Court would not set aside the decision of the District Court. The interests of certainty were met to a limited extent not by reason of the inherent qualities of the criterion of "habitual residence" but by reason of the rigorous and strict enforcement of the decision of the court first seized in relation to jurisdiction. If the application had not been refused on substantive grounds, it would have been refused on the basis that the application was not made in timely fashion.
Reporter: R.W.
Mr. Justice Henry Abbott delivered on the 2nd day of July, 2007
This application was heard before me on the 17 th April, 2007. The application was for judicial review pursuant to leave being granted by order dated 6 th November, 2006, for the following reliefs:
(a) An order of certiorari by way of application for judicial review quashing the order made by the respondent on the 29 th May, 2006, appointing the notice party as guardian of the children R. McA. and V. McA. (hereinafter referred to as the children).
(b) An order of certiorari by way of application for judicial review quashing the order made by the respondent on the 25 th September, 2006, granting the notice party sole custody of the children.
(c) A declaration that the courts of Ireland do not have jurisdiction to make orders in respect of the children.
(d) An order of prohibition, prohibiting the respondent from determining guardianship and/or custody and/or access disputes as between the applicant and the notice party.
(e) A stay on the operation of the said orders of the 29 th May, 2006, and the 25 th September, 2006, pending the outcome of the proceedings within.
(f) Such further or other order as this Honourable Court shall seem meet.
(g) An order providing for the costs.
The applicant and the notice party are not married and they had a relationship by which they had two children, a daughter R. McA and a son V. McA who were born on the 29 th June, 2002, and the 5 th January, 2004, respectively. R. McA was born prematurely and has cerebral palsy in consequence whereof she is disabled and delicate and has required and continues to require special care. The applicant is Scottish and the notice party is Irish. Their relationship commenced in Ireland and they took up residence and lived together in Ireland in 2002. They continued to live together in Ireland until in or about August, 2005 when, as a result of difficulties between them, the applicant moved with the children to rented accommodation in Ireland, still in the vicinity of the notice party and it appears access arrangements continued for the notice party. Both the applicant and the notice party in their affidavits gave conflicting accounts of the difficulties in the relationship and the inadequacies of the care which each gave to the children. Both the applicant and the notice party generally reject the criticisms levelled at them by the other in relation to this aspect. On the applicant's account she, the applicant was in contact with Irish social workers who were concerned at the effect of ongoing disputes between the applicant and the notice party.
The applicant says that she left Ireland on the 29 th March, 2006, with the children having resolved that she and the children would reside in Scotland and would not, for the foreseeable future, return to reside in Ireland. She said that she had wanted to leave for some time before matters came to a head at the end of March, 2006. She says that she now lives on a temporary basis with her mother. On both the applicant's account and the notice party's account, the accommodation in Scotland appears to be cramped but the applicant says that she hopes to get accommodation from the Housing Authority in Scotland in the near future as her case is being considered by that authority as a medical priority. She feels her move to Scotland was a good one and she intends to stay there. The facilities available for the child R. and her needs, she claims, are far more comprehensive than had been available while living in Ireland. R. has been attending a nursery pre-school in Scotland near their home since 15 th May, 2006, and is transported by mini bus each day. R. also attends regularly at a Disabled Children Association for weekly activities for children and young people with various disabilities including playgroups, outings, parties, summertime activities and has settled extremely well in her pre-school and her Disabled Children Association's sessions. She says that she had differences with the notice party's family and that they took his side in disputes. The notice party contests this and states that his family lived in the vicinity and were supportive and helpful to the children.
The notice party makes various criticisms of the conduct, health, background and temperament of the applicant and how these have affected, and are likely to continue to affect, her care of the children. He said that access had been arranged from the time the applicant went to live apart from him in August, 2005, and that he endeavoured to have that access as often as the applicant would allow. It was agreed that he would take the children every weekend from Friday evening until Sunday evening and that he would care for their needs, including physiotherapy for R. three times a day, and would bring them to visit their paternal grandmother in her nursing home.
However, until the departure of the applicant with the children to Scotland in March, 2006 the notice party was not the guardian of the children.
On the 3 rd May, 2006, the notice party issued applications to the District Court in Ireland to be appointed guardian of the children and for custody. The District Court summonses relating to said applications were served upon the applicant at her address in Ireland and the applicant agrees that she received same when she called back to Ireland to collect her and the children's belongings. The application to the District Court was heard on the 29 th May, 2006, before which the applicant's solicitor wrote to the District Court Clerk indicating that as the applicant and the children were no longer living in Ireland when the proceedings were issued the District Court did not have jurisdiction to hear the matter. When...
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