SR v SR (Child Abduction)

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 12 December 2007
• Neutral Citation: [2007] IEHC 423
• Court: High Court
• Docket Number: [2006 No. 36 HLC]
• Date: 12 December 2007

[2007] IEHC 423

THE HIGH COURT

[36HLC/2006]

R v R

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF

CUSTODY ORDERS ACT, 1991

IN THE MATTER OF THE HAGUE CONVENTION

IN THE MATTER OF MINORSS

BETWEEN

R

APPLICANT

-and-

R

RESPONDENT

EC REG 2201/2003 ART 11(2)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 12

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13

F (ABDUCTION: JOINDER OF CHILD AS PARTY), IN RE 2007 2 FLR 313

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13(a)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ART 13(b)

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S36

FAMILY LAW ACT 1995 S47

FAMILY LAW

Child abduction

Hearing child - Application for return of child to place of habitual residence - Whether mandatory that child be heard by court in all circumstances - Whether exceptional case - Re F (a child) [2007] EWCA Civ 393, [2007] 2 FLR 313 approved - Council Regulation (EC) No 2201/2003, article 11 - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6), s 36 - Hague Convention on the Civil Aspects of International Child Abduction 1980, article 12 - Order set aside (2006/36HLC - Finlay Geoghegan J - 12/12/2007) [2007] IEHC 423

R v R

The respondent sought by way of motion an order setting aside an order of the High Court for the return of her child to Latvia. The order for return was made on an ex parte basis and the court was satisfied at the time that the respondent had been properly served with the proceedings. The respondent's application was made pursuant to the inherent jurisdiction of the court by reason of the failure of the court to comply with the mandatory obligation under article 11(2) of Council Regulation (EC) 2201/ 2003. Article 11(2) of the Regulation provides that when applying articles 12 and 13 of the 1980 Hague Convention it shall be insured that the child is given the opportunity to be heard during the proceedings unless it appears inappropriate having regard to his or her age or degree of maturity.

Held by Finlay Geoghegan J. in setting aside the order for the return of the child, that the obligation imposed on the court by article 11(2) was a mandatory obligation and independent of any issues raised by the parties. Consequently, the total failure by the court to comply with that obligation in the sense of not even considering article 11(2) amounted to a fundamental failure that went to the jurisdiction of the court.

Reporter: L. O' S.

1 Ms. Justice Finlay Geoghegandelivered on the 12th day of December, 2007

2 This is a motion of the 20th November 2007 seeking an order setting aside an order made by the High Court on the 13th December 2006 for the return of the child to Latvia.

3 The order for return was made on an ex parte basis. The respondent did not appear and the court was satisfied at the time that the respondent had been properly served with the proceedings.

4 Counsel for the respondent makes this application pursuant to the inherent jurisdiction of the court by reason of the failure of the court to comply with the mandatory obligation under article 11 (2) of Council Regulation (EC)2201 of 2003 to which I will simply refer to as "the Regulation".

5 Article 11 (2) of the Regulation provides that when applying articles 12 and 13 of 1980 Hague Convention it shall be insured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.

6 Counsel for the applicant does not dispute that this court has an inherent jurisdiction to set aside one of its orders obtained ex parte on certain limited grounds including where it is obtained by fraud (which does not apply on the facts herein). He also accepts that the Court has an inherent jurisdiction to set aside if it failed to have regard to a relevant matter which goes to its jurisdiction but contends there was no such failure here.. He also objects to the Court now setting aside the order for return as he submits that would give the respondent who did not appear potentially an unfair advantage in the events of the proceedings being re-heard.

7 The short history of the proceedings are that the proceedings were commenced on the 25th October 2006 by the applicant as the father of the child who was born 2ndApril 1998 and it is alleged that the child was wrongfully removed by the respondent mother to this jurisdiction in December 2005.

8 The matter was before this court on a number of occasions between October 2006 and the 13th December 2006 and finally on that date counsel for the applicant satisfied the court that the proceedings had been properly served on the respondent and that there were before the court all the necessary proofs which gave the applicant a prima facie entitlement to an order for return under article 12 of the Hague Convention and the court then made the order for return and directed the return to take place within seven days of the service of the order.

9 That order with a penal endorsement was only served on the respondent in May of 2007 and was not complied with. This court subsequently made orders directing the respondent to produce the child before this court and those orders were served and not complied with and ultimately an order for attachment was made against the respondent and the respondent was brought before the court pursuant to that...