R v W

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 17 November 2020
• Neutral Citation: [2020] IEHC 580
• Docket Number: [2019 No. 7 FJ]
• Court: High Court
• Date: 17 November 2020

IN THE MATTER OF THE COUNCIL REGULATION (EC) No. 2201/2003 CONCERNING JURISDICTION AND THE RECOGNITION OF JUDGMENTS IN MATRIMONIAL MATTERS AND MATTERS OF PARENTAL RESPONSIBILITY

- AND -

IN THE MATTER OF ORDER 42A OF THE RULES OF THE SUPERIOR COURTS OF IRELAND

BETWEEN

R

APPLICANT

(HERE RESPONDENT)

- AND -

W

RESPONDENT

(HERE APPELLANT)

[2020] IEHC 580

Max Barrett

[2019 No. 7 FJ]

THE HIGH COURT

Removal – Service of proceedings – Technicality – Appellant seeking to discharge the order made by the Master of the High Court – Whether the application concerned a technicality

Facts: Two children who enjoyed dual Irish-UK nationality were removed from Ireland following the making of an ex parte order allowing their return abroad but before the service of proceedings on the mother. As a result, the appellant mother, with whom the children were living for some years, had lost physical custody of two children, hitherto resident in Ireland, without her side of matters ever having been heard by the Irish courts. The appellant sought to discharge the order made by the Master of the High Court. At a hearing before the High Court, the respondent father, in his oral submissions, raised three broad points: (i) he contended that this application concerned a technicality; (ii) he contended that the appellant was served with a copy of the order; and (iii) he contended that the appellant was in breach of what was ordered in the relevant EU Member State.

Held by Barrett J that what was at issue was quite detailed law. However, the Court did not accept that what was in issue was a technicality. Barrett J noted that, as a result of what occurred, the children were removed from Ireland without the appellant, who had physical custody of the children, ever being heard by the courts before the children were removed; thus what presented were fundamental rights under Irish and European Union law and what had transpired involved a grave wrong to the appellant. The Court accepted that the respondent was a non-lawyer and that it may have seemed to him, in good faith, that service was effected. Barrett J held that, in truth, on any view of the facts, the appellant was not given service in the form required by law – and again that a particular form of service is required is not a legal technicality; the requirement exists to ensure that the appellant’s fundamental rights (and the rights of any affected parent/s in the position in which the appellant found herself to be) are protected. Barrett J noted that, because of the way in which matters transpired, the appellant had been denied the opportunity to argue before the courts of Ireland whether the Relevant Member State Court Order was an enforceable court order or not. There seemed to Barrett J very little point in the appellant making that case when the children had already been removed from Ireland.

Barrett J held that he would allow the appeal and discharge the order made by the Master of the High Court.

Appeal allowed.

JUDGMENT of Mr Justice Max Barrett delivered on 17th November 2020.

I

Introduction

1 This is a case in which two children who enjoy dual Irish-UK nationality have been removed from Ireland following the making of an ex parte order allowing their return abroad but before the service of proceedings on the mother. As a result, the mother, with whom the children were living for some years, has, for now, lost physical custody of two children, hitherto resident in Ireland, without her side of matters ever having been heard by the Irish courts. That is a most serious matter. Perhaps the mother might have succeeded in resisting the removal of the children, perhaps she might have failed; the court has no view as to how she would have fared in this regard. But that she was not even heard on the issue is a grave wrong. Lest it be thought that this is a one-off occurrence (it is not) or that this is just one judge ‘sounding off’ (it is not), it is worth noting that the illegal practice of removing a child from the jurisdiction on foot of an ex parte order and before the service of proceedings on any affected parent/s has been the subject of trenchant criticism by the Court of Appeal, which has pointed to the need for such occurrences to stop and to the potential for punishment by the courts where such removals occur. Thus, Hogan J. in Hampshire County Council v. C.E. and N.E. (otherwise N.C.) [2018] IECA 154, a case involving a public authority, but the points he makes apply with equal rigour in the context of the within proceedings, observes, inter alia, as follows, at paras. 45-46:

“45. At all events, this practice of removing the children before the service of the proceedings on the parents is a wholly unlawful one. It is utterly at odds with the constitutional guarantee of fair procedures, because an ex parte order of this kind cannot validly have irreversible effects of this kind: see DK v. Crowley [2002] IESC 66, [2002] 2 I.R. 712. It is equally at odds with the concept of a democratic State based upon the rule of law guaranteed by Article 5 of the Constitution of which this Court has so frequently spoken in recent times, given that the right of access to the courts is not only a constitutionally guaranteed right deriving from Article 34.1, Article 34.3.1 and Article 40.3 of the Constitution, but as (the not altogether dissimilar case of) The State (Quinn) v. Ryan [ [1965] I.R. 70] itself shows, albeit in a different context, it is a cornerstone of a democratic state based on the rule of law. One might equally observe that the practice sets at naught the procedural guarantees - explicit and implicit - provided for in Chapter III of the Brussels II bis Regulation and is also inconsistent with the guarantees of an effective remedy contained in both Article 47 of the EU Charter of Fundamental Rights and Article 13 ECHR.

46. This practice of taking and then returning the children following the making of the ex parte enforcement order but before the parents are served with the enforcement proceedings clearly compromises the procedural rights of the parents to object to the making of that enforcement order in the first place and, if necessary, to apply for a stay. It is the clear duty of the courts to direct that this practice … must stop immediately. If it does not, then I fear that it may lead to some altogether unpleasant consequences for those acting in this fashion in any future case, for the prospect of contempt proceedings … were this practice to re-occur must be a very real one.”

2 The threat of contempt proceedings may not suffice to prompt the return of a child in any one case, it may even make matters more difficult if it induces fear in a wrongdoing parent from ever returning to this jurisdiction. So care is required in this regard. But Hogan J. is clearly right that as a systemic matter such removals cannot be tolerated and must stop and be stopped.

II

Background

3 This is an appeal against an order made by the Master of the High Court on 1 May 2019. That order arises in the following circumstances.

4 Mr R (a UK national) and Ms W (an Irish national) were married in the early years of this century. They had two children who are now respectively of early-secondary/late-primary school age. The children enjoy dual Irish-UK nationality. The family lived between the UK and another EU Member State (the ‘relevant EU Member State’) where Mr R has business interests.

5 Unfortunately, the marriage between the parties ended in divorce, following which Ms W initially lived in the UK. After the divorce, the parties entered into an agreement in the relevant EU Member State which formed the basis of the divorce decree; this agreement effectively gave primary care and custody of the children to Ms W who, it was then contemplated, would live in the relevant EU Member State or a particular UK city.

6 In fact, following on the divorce, Ms W returned to Ireland in or about the middle of the last decade. She claims that, before she moved here, the move was discussed with Mr R and his mother at his parents’ home, the view being (rightly or wrongly) that one of the children of the onetime marriage, being a child who has special educational needs, would be better supported in Ireland.

7 For a number of years the Irish-based arrangement appears broadly to have worked, contact was maintained between the children and Mr R, and the children spent a portion of their holidays each year with Mr R, either in the UK or the relevant EU Member State. However, at some point, it seems in 2017, Mr R commenced proceedings before the courts of the relevant EU Member State which resulted in an order of 31 October 2018 (the ‘Relevant Member State Court Order’) ordering Ms W to return to that Member State or, alternatively, to live in the United Kingdom with her children.

8 On or about 1 May 2019, Mr R made an ex parte application to the Master of the High Court seeking orders for the recognition and enforcement of the Relevant Member State Court Order in accordance with Art.28 of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No. 1347/2000 (“Brussels IIa Regulation”). The ex parte notice of motion states, inter alia, as follows:

“THE HIGH COURT

2019 No 7FJ

In the Matter of Council Regulation (EC) No. 2201/2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and Matters of Parental Responsibility and In the Matter of Order 42A of the Rules of the Superior Courts

Between:

R

APPLICANT

-AND-

W

RESPONDENT

WE DESIRE TO TRANSACT THE FOLLOWING BUSINESS, VIZ:

1. A declaration pursuant to Article 28 of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement...