R.G.H.R v L.G. (Jurisdiction)
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | Mr. Justice Henry |
| Judgment Date | 11 May 2007 |
| Neutral Citation | [2007] IEHC 253 |
| Docket Number | [2007 No. 5M] |
| Date | 11 May 2007 |
[2007] IEHC 253
THE HIGH COURT
BETWEEN
AND
FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT 1976
STATUS OF CHILDREN ACT 1987
FAMILY LAW ACT 1995
CHILDREN ACT 1997
LUXEMBOURG CONVENTION ART 7
CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991
GUARDIANSHIP OF INFANTS ACT 1964
EEC REG 2201/2003 (BRUSSELS II) ART 1.3(e)
FARRELL v LONG 1997 QB 842 1997 3 WLR 613 1997 ECR I-1683
BRUSSELS CONVENTION 1968
EEC REG 44/2001 (BRUSSELS I)
EEC REG 2201/2003 (BRUSSELS II) ART 8
EEC REG 2201/2003 (BRUSSELS II) ART 16
EEC REG 2201/2003 (BRUSSELS II) ART 19
OVERSEAS UNION INSURANCE LTD & DEUTSCHE RUCK UK REINSURANCE LTD & PINE TOP INSURANCE CO LTD v NEW HAMPSHIRE INSURANCE CO 1992 QB 434 1992 2 WLR 586 1991 ECR I-3317
T (D) v L (F) UNREP MCKECHNIE 22.2.2006 2006/55/11756 2006 IEHC 98
EEC REG 2201/2003 (BRUSSELS II) ART 9
EEC REG 2201/2003 (BRUSSELS II) ART 10
EEC REG 2201/2003 (BRUSSELS II) ART 12
EEC REG 2201/2003 (BRUSSELS II) ART 12(1)(b)
EEC REG 2201/2003 (BRUSSELS II) ART 15
EEC REG 2201/2003 (BRUSSELS II) ART 15(1)
R (L) v R (D) 1994 1 IR 239
COURTS
Jurisdiction
Children - Lis pendens - Concurrent proceedings in Ireland and England - Whether Irish courts had jurisdiction to determine proceedings - T(D) v L(F) [2006] IEHC 98, (Unrep, Kechnie J, 22/2/2006) and L-K v K (Brussels II Revised: Maintenance pending suit) [2006] EWCA 153 (Fam), [2006] 2 FLR 113 followed - Council Regulation (EC) No 44/2001 - Council Regulation (EC) No 2201/2003, articles 8, 9, 10, 12, 15, 16 and 19 - Proceedings stayed in relation to financial relief but not in relation to access (2007/5M - Abbott J - 11/5/2007) [2007] IEHC 253R(RGH) v G(L)
The applicant (father) issued proceedings claiming relief under the Guardianship of Infants Act 1964 seeking custody and access arrangements. The respondent (mother) applied by way of notice of motion to stay the guardianship proceedings on the grounds that the High Court of Ireland had no jurisdiction or in the alternative that same should be stayed or dismissed on the grounds that they were an abuse of process.
Held by Abbott J. in refusing the respondent's application that the High Court of Ireland had jurisdiction to deal with the proceedings insofar as they related to custody/ access only pursuant to Article 8 of the Brussels II Bis Convention. The proceedings were not an abuse of process.
Reporter: R.W.
Mr. Justice HenryAbbott delivered on the 11th day of May, 2007.
The Applicant and the Respondent had a relationship but are not and never were married to each other or to any other person. There were two children of the relationship, P. born on the 6 th July, 1994, now aged twelve years and eleven months and J. born on the 14 th September, 1996, aged ten years and eight months. The Respondent mother and children have resided in Ireland since about 1998/1999 after the relationship had broken down in or about 1998. The parties appear to haveresided in England prior to the move of the mother to Ireland. After the breakdown there were proceedings before the Oxford County Court (England) and orders were made by the Oxford County Court between 1999 and 2004, as follows:
(a) 6 th November, 1998 by consent the Respondent was granted parental responsibility for the children.
(b) 24 th August, 2001 interim visiting contact to the Applicant.
(c) 17 th June, 2002 partly consent contact with certain issues to be determined by the court.
(d) 17 th September, 2003 an order refusing the Applicant's application to vary contact.
(e) 7 th April, 2004 ex-parte on notice the Applicant was directed to disclose the address where the children would be spending part of the Easter holidays.
(f) 7 th July, 2004 an ex-parte was made on the undertaking of the Applicant who engaged a qualified nanny to care for the children on certain conditions to ensure the children travelled to attend a party.
(g) 22 nd July, 2004, consent order made in relation to contact and conditions attached thereto.
The order of the Oxford County Court made on the 22 nd day of July, 2004 was a comprehensive and detailed residence and contact order in respect of which the Applicant sought and obtained in the High Court in Ireland an order pursuant to article 7 of the Luxemburg Convention as implemented in this jurisdiction by the Child Abduction and Enforcement of Custody Orders Act, 1991, recognising and enforcing it by order of Ms. Justice Finlay Geoghegan on the 26 th July, 2006. The Respondent in her affidavit before this court sworn on the 16 th February, 2007 (theRespondent's affidavit) says that there were other applications to the Oxford County Court in relation to other matters apart from those set out in the orders above.
From the Respondent's affidavit, it appears that contact proceedings were re-entered in the Oxford County Court and on the 25 th October, 2006, a temporary variation of the contact was made allowing the Applicant visiting contact with the children on the 29 th and 30 th days of October, 2006. A CAFCASS officer's report was commissioned following a number of such reports which had been carried out over previous years and the residence and contact issue came before the Oxford County Court on the 18 th day of December, 2006. The order made by His Honour Judge Payne in the Oxford County Court on the hearing on the 18 th December, 2006, is as follows:
"It is ordered that:"
1. This order replaces all previous contact orders.
2. The Applicant mother need not make the children available for any direct contact with the Respondent father.
3. The order in para. 2 is made without consent but without opposition from the Respondent's father, and without any finding adverse to him."
There were also proceedings before Oxford County Court in relation to financial matters resulting in a settlement on foot of which an order was made on or about the 12 th January, 1999, and as a result of the Respondent mother discovering that there existed a trust settlement which, inter alia, might benefit the childrens education, the Respondent mother as Applicant re-entered these proceedings before the Oxford County Court to deal with:
(a) An increase in the periodic sum.
(b) The issue of the childrens educational costs and
(c) Secured periodical payments in circumstances where the trust had recently been discovered, and which had not previously been disclosed, and the discovery of certain other financial information.
The proceedings dealing with the financial matters and particularly the trust have progressed before the Oxford County Court, and the application by the Respondent by way of notice of motion to this court to refuse jurisdiction in relation to all matters in dispute between the parties arises from an order made by the Oxford County Court dated the 2 nd February, 2007 providing (apparently in deference to the High Court in Ireland) as follows:
"1. If a stay is granted by the High Court in Eire on the 7 th February, 2007 (or any such adjourned date to consider the issue of estate) the following directions shall apply and this court shall consider the mother's application under Schedule 1 of the Childrens Act 1989:"
(a) Each party shall file at court and serve upon the other form E setting out, in addition, all reasons why it is alleged or denied that there has been a material change of circumstance justifying an application to bear the index link order for monthly periodical payments, such form E to be filed and served within six weeks of determination of the application to stay.
(b) The Respondent do provide with form E an up-to-date letter of confirmation from the trustees of a settlement of the 3 rd December, 1997, of the current funds thereof and do provide up-to-date bank statements verifying the figure.
(c) The matter to be listed for telephone directions on the 9 th May, 2007 at 10 a.m. before a District Judge sitting at Oxford County Court, Oxford, with the time estimate of one hour, 30 minutes, the Applicant's solicitors to arrange. Proposed directions and cases summary to be filed and served at least seven days in advance."
In the meantime, after his appearance in the residence and contact proceedings before Oxford County Court in December 2006 the Applicant (father) issued proceedings before this court by way of special summons dated 7 th February, 2007 claiming relief under the Guardianship of Infants Act 1964 and other legislation seeking inter alia custody and access arrangements equivalent to the residence and contact type reliefs available for the consideration of the Oxford County Court, and also on order that maintenance now being paid by the Applicant is appropriate and that same be paid by standing order.
The Respondent mother has applied by way of notice of motion to this court to stay the guardianship proceedings of the Applicant husband commenced by way of special summons before the High Court on the grounds that the High Court in Ireland has no jurisdiction in respect thereof, or in the alternative in the event of the High Court holding that it has jurisdiction in respect of such guardianship proceedings that the same be stayed, or alternatively dismissed on the grounds that they are an abuse of process. Two further alternative reliefs raised on behalf of the Respondent mother, and permitted by this court, during the hearing of the notice of motion that in the event of this court finding that it had...
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