R v W (No.2)

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 11 December 2020
• Neutral Citation: [2020] IEHC 645
• Docket Number: [2019 No. 7 FJ]
• Court: High Court
• Date: 11 December 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 (NO. 2)

RESPONDENT

(HERE APPELLANT)

[2020] IEHC 645

Max Barrett

[2019 No. 7 FJ]

THE HIGH COURT

JUDGMENT of Mr Justice Max Barrett delivered on 11th December 2020.

1 This is an application for costs following on the judgment of the court in R v. W [2020] IEHC 580. In X v. Y (No. 2) [2020] IEHC 579, this Court revisited the rules as to costs in family law cases, following on the enactment of s.169(1) of the Legal Services Regulation Act 2015 and in light of applicable case-law, concluding, at para. 3, that the usual position taken in the family law context, having regard to the very particular nature of family law proceedings, is that “ if a case, or the parties, or the conduct of the parties merit the making of an order as to costs, such an order can be made. But if it does not the implicit assumption seems to be that no such order will typically be made in family law proceedings”.

2 In this case Ms W's appeal was successful. However, it seems to the court that in these family law proceedings very particular circumstances present which yield the conclusion that it should make no order as to costs. With his legal advisors, Mr R obtained a court order in another EU Member State in circumstances where he considered (and the court of that member state appears to have accepted) there to have been a breach by Ms W of an agreement as to where the children were to live and be reared. Mr R then came to Ireland where, acting with his legal advisors, he – in good faith – obtained an order of the Master of the High Court. That order was entirely deficient and ought not to have been granted as a matter of law for the reasons stated by the court in the principal judgment.

3 Everything that went wrong in these family law proceedings from an Irish-law perspective stems from the fact that the order that issued from the Master's Court ought never to have issued and could not issue as a matter of law. Mindful that these are family law proceedings and that Mr R was a ‘stranger in a strange land’ who thought he had obtained and was acting on foot of a lawful Irish court order, the court does not see that, in that context, the conduct of Mr R in these proceedings merits the making of an order as to costs against him. This is not a family law case where a father ‘swooped’ into the jurisdiction and abducted a child without care for the law. Nor is it a family law case where a father knew himself to be acting in breach of a court order. It is, as the court indicated, a family law case where the father (Mr R) sought to conduct himself in accordance with law, and at all times thought himself to be acting in compliance with a court order that ought not to have issued and which, on its face, appeared to allow him to do as he did. The court does not consider that there is anything in this family law case or the conduct of the...