Subject to Publication Restrictions
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 24 January 2018 |
| Neutral Citation | [2018] IECA 4 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [2018] IECA 4 |
IN THE MATTER OF ARTICLE 41 OF THE CONSTITUTION,
AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964, AS AMENDED,
AND IN THE MATTER OF THE INHERENT JURISDICTION OF THE HIGH COURT,
AND IN THE MATTER OF THE ENFORCEMENT OF AN ORDER MADE BY THE FAMILY COURTS STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS KENT, SC,
AND IN THE MATTER OF E.M., A CHILD
[2018] IECA 4
Whelan J.
Peart J.
Birmingham J.
Whelan J.
[2018] IECA 4
Appeal Number [2017/472]
THE COURT OF APPEAL
CIVIL
Custody - Removal - Jurisdiction - Appellant seeking to appeal against determinations of the High Court - Whether the Courts of Ireland have exclusive jurisdiction
Facts: The plaintiff/respondent (the father), commenced proceedings by plenary summons on 26th May, 2017, seeking an order recognising and enforcing orders of the Kent County Family Court, Rhode Island, USA, made by Capineri J on 24th August, 2016, granting the father placement (day to day care) of a minor and directing her to return forthwith from the State to Rhode Island. The said orders granted custody, care and control of the minor child of the parties to the father. On 7th July, 2017, the defendant/appellant (the mother) caused a notice of motion to be issued seeking certain interlocutory orders including an order prohibiting the removal of the minor from the jurisdiction pending the determination of the proceedings. The motion also sought an order pursuant to O. 25, r. 2 or, in the alternative, pursuant to O. 34, r. 2 of the Rules of the Superior Courts to determine two questions of law by way of preliminary issue; (i) whether the Courts of Ireland have exclusive jurisdiction and (ii) whether the High Court had any jurisdiction, in relation to all issues of parental responsibility concerning the minor. The preliminary issues came on for hearing in the High Court on 27th July, 2017. At the conclusion of the hearing, judgment was reserved. In her judgment delivered on 1st September 2017, Reynolds J rejected the mother's arguments on both issues. The mother appealed to the Court of Appeal from the determinations of the High Court.
Held by Whelan J that: (i) the minor is habitually resident within the jurisdiction of the Courts of Ireland and was so resident at the time the proceedings were issued on behalf of the father; (ii) accordingly, Article 8 of the Brussels II BIS Regulation is engaged and the courts of the jurisdiction have jurisdiction in regard to matters of parental responsibility pertaining to her; (iii) the minor ceased to be habitually resident within the jurisdiction of the Courts of Rhode Island in the month of January, 2009; (iv) the issue of jurisdiction must be determined on the facts as disclosed in the proceedings and specific to the parties without regard to (a) the Hague Convention on International Child Abduction, or (b) the Hague Convention of 19th October, 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children; (v) the provision of the Regulation Brussels II bis governing jurisdiction in child welfare cases is engaged
Whelan J held that the appeal should be allowed.
Appeal allowed.
The above entitled proceedings were commenced by plenary summons on 26th May, 2017 by the plaintiff/respondent (hereinafter 'the father'). He seeks an order recognising and enforcing orders of the Kent County Family Court, Rhode Island, United States of America, made by Mr. Justice Stephen J. Capineri on 24th August, 2016 granting the father placement (day to day care) of the minor E. and directing her to return forthwith from this State to Rhode Island. The said orders granted custody, care and control of the minor child of the parties to the father.
On 7th July, 2017 the defendant/appellant (hereinafter 'the mother') caused a notice of motion to be issued seeking certain interlocutory orders including an order prohibiting the removal of E. from this jurisdiction pending the determination of the above entitled proceedings. The motion also sought an order pursuant to O. 25, r. 2 or, in the alternative, pursuant to O. 34, r. 2 of the said Rules of the Superior Courts to determine two questions of law by way of preliminary issue; (i) whether the Courts of Ireland have exclusive jurisdiction and (ii) whether the High Court had any jurisdiction, in relation to all issues of parental responsibility concerning the minor.
The said preliminary issues came on for hearing in the High Court on 27th July, 2017. At the conclusion of the hearing, judgment was reserved. In her judgment delivered on 1st September 2017, which is considered further below, Reynolds J. rejected the mother's arguments on both issues. This is the mother's appeal from the determinations of the High Court.
The mother is Irish born. The father is a US citizen of EU origin. The parties were married in August, 1996 in Ireland. Thereafter they went to reside in the United States. There are three children of the marriage namely a son P., born April, 1999 who is now aged 18, C. the older daughter born November, 2000 now aged 17 and E., the subject matter of the within proceedings, born September, 2004 now aged 13 years and four months. At all material times throughout the marriage the parties resided in the United States latterally in the State of Rhode Island. In the year 2006 the relationship between the parties broke down and in October, 2008 the Rhode Island Family Court granted a final decree of divorce together with ancillary orders including that the parties have joint custody of the three minor children with physical placement of them with the mother. The court approved an agreement between the parties that the mother would return to reside in Ireland with the three minor children on or after 1st January, 2009 upon satisfaction of specific conditions concerning future visitation and access for the father in Ireland and the United States.
Clause 15 of the October 2008 final judgment of the Rhode Island family court provided:-
'The above entitled matter shall remain under the jurisdiction of the PKPA [Parental Kidnapping Prevention Act] and UCJEA [Uniform Child Custody and Jurisdiction Act] and that of the Rhode Island Family Court and shall be reviewed by the Court within 30 days of this date or at such other times as designated by the Court.'
It is common case that the mother and three minor children relocated to Ireland in January, 2009. At that time the older children were nine and a half and eight respectively and the minor E. was four years and four months old. The father, a medical doctor, continued to live and work in Rhode Island. E. has at all material times from the month of January, 2009 been habitually resident within the jurisdiction of the courts of this State. The ancillary orders of the Rhode Island Court made on 28th October, 2008 included a provision granting the father visitation to the children for at least 50 percent of the Christmas and Easter school breaks in Ireland each year and access in the United States to be exercised in Rhode Island for two weeks each summer.
It would appear that these arrangements operated reasonably well in the early years until 2014. The mother resided in a rural town in Ireland near an airport and found employment. The children attended school in Ireland. However, around 2014, relations between the mother and son became fraught. In April, 2014 having been contacted by school management concerning the welfare of P., the oldest child of the parties who was then aged 15, the Child and Family Agency became involved in monitoring welfare concerns.
When the children, then aged 15, 13 and 9, respectively, travelled to Rhode Island in July, 2014 for scheduled summer access with the father, he reactivated the 2008 proceedings and issued an ex parte motion in Rhode Island Family Court on 7th July, 2014 seeking to modify the custody and placement orders in respect of the three children previously made by the Rhode Island Family Court in the context of granting the final decree of divorce on 28th October, 2008. In particular, he sought, in his ex parte application, custody and placement of the three children on the grounds of a material change of circumstances. By order made on 9th July, 2014 ex parte, Ms. Justice Lanni granted custody and placement of the three minor children to the father and directed that they remain under his care, custody and control in Rhode Island until further order of that court. The matter was set down for hearing on 29th July, 2014.
When she discovered the existence of the said orders, the mother issued an emergency motion to vacate the ex parte orders and her application was heard before Judge Lanni on 17th July, 2014 in the Rhode Island Family Court. The issues raised by the mother in that application included the alleged lack of jurisdiction of the Rhode Island courts to determine issues of welfare. The Rhode Island Family Court heard the application on 17th July, 2014 and conferred with the child protection services in Ireland.
At the conclusion of the hearing the mother secured an order vacating the ex parte order obtained by the father on 9th July, 2014 on the following ground:-
'As the Court does not believe that an emergency order is warranted in order to protect the children.'
A full hearing was scheduled for 12th and 15th September regarding the future custody of the two older children.
The Rhode Island Court directed that the prior court order of 28th October, 2008 in relation to custody, placement and visitation be reinstated notwithstanding the father's objections. Accordingly it is...
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