Hampshire County Council v C.E. & anor [2019] IEHC 641 (30 July 2019)

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IN THE MATTER OF CHAPTER III OF COUNCIL REGULATION (EC) 2201/2003

IN THE MATTER OF FOREIGN PROCEEDINGS BEARING REFERENCE NO. P017P00941

JUDGMENT of Mr. Justice Binchy delivered on the 30th day of July, 2019

1. I allowed the appeal of the appellants against an order made by Creedon J. (ex

parte) (the “Recognition Order”) recognising and enforcing an order of the High

Court of England and Wales (the “Return Order”) made pursuant to Chapter III of

2. I set aside the Recognition Order pursuant to an application to set aside the same

2. This judgment is concerned with relief sought by the appellants as a consequence of the

orders made by me on 12th April, 2019 Hampshire County Council v. C.E. & anor [2019] IEHC 340.

), which were not appealed. I heard comprehensive submissions from the

parties as regards what further orders, if any, should be made arising out of that decision,

3. In short, apart from seeking costs as they do, the appellants are also seeking further

orders from this Court directing the return from England to this jurisdiction of the children

referred to in the title to these proceedings in light of the fact that the Return Order is not

now recognised in this jurisdiction. It was on the basis of that order that the respondent,

assisted by the Child and Family Agency (the “CFA”) in this jurisdiction, returned the

4. For its part, the respondent, while not appealing the judgment delivered by me on 12th

April, 2019, submits that, in the particular circumstances of this case, no order as to costs

should be made and nor should the court make any further orders in these proceedings.

5. Put at its simplest, it is the appellants’ contention that they are entitled to be put back in

the same position that they were in prior to the Recognition Order. This means that that

the children must be returned to Ireland and that it is of no concern to this Court what

happens thereafter, which, in the absence of agreement, will have to be addressed

6. The reliefs now sought by the appellants were not sought in the framework of the

application to set aside the Recognition Order, or within the context of the appeal against

that order. However, for the purposes of seeking the reliefs now sought, the appellants

delivered points of claim on 3rd May, 2019, to which the respondent replied by points of

7. Furthermore, the appellants caused the issue of a summons pursuant to the Guardians of

Infants Act 1964, (as amended) (the “Act of 1964”) on 9th May, 2019 (concerning all

three children referred to in the title to the proceedings) as well as a notice of motion

dated 16th May, 2019. That notice of motion came on for hearing before this Court on

21st May, 2019, the same date on which I received submissions from the parties on the

question as to what, if any, further orders I should make arising out of the judgment

8. The points of claim and the motion issued by the appellants in substance claim the same

reliefs if by different routes. The substance of the reliefs sought is an order directing the

return of the three children to this jurisdiction, into the care of the appellants. In the

points of claim, the relief is sought on the basis of the decision of this Court of 12th April,

2019, as well as the judgments of the Court of Appeal of 17th May (Hampshire County

Council v. C.E. and N.E. & Ors [2018] IECA 154 ), 7th June and 28th November, 2018

(under the citations [2018] IECA 157 and [2018] IECA 365) and the judgment of the

Court of Justice of the European Union (“CJEU”) of 19th September, 2018 (Joined Cases

C-325/18 PPU and C-375/18 PPU) ECLI:EU:C:2018:739). Relief is also sought pursuant

9. In the points of claim, it is claimed that the first named appellant is custodian and

guardian of all three children, and that both appellants are the sole guardians and

custodians of the third named child, R.E. It is claimed that there is no order which is

recognised or enforceable in this jurisdiction giving custody, parental responsibility or any

other rights to any other third party. In their points of claim, the appellants invoke the

previous decisions of the Court of Appeal and the CJEU in these proceedings, referred to

above, as well as the decisions of the Supreme Court in The State (Quinn) v. Ryan

[1965] I.R. 70 and The State (Trimbole) v. the Governor of Mountjoy Prison [1985] I.R. 550 in

support of the claim of the appellants to an effective remedy having regard to the

decisions of this Court to set aside recognition of the Return Order and also to allow the

10. In the points of claim, it is further claimed, in the alternative, that this Court has an

inherent and equitable jurisdiction to make orders to uphold the constitutional rights of

the appellants, and/or to give effect and meaning to orders of this Court. The appellants

rely upon the decision of the Supreme Court in the case of N. v. Health Service Executive

11. The appellants further rely upon the Act of 1964. They also rely on authorities from the

United States in which cases, they submit, orders of the kind that they now seek in these

proceedings were granted namely, the decision of the Supreme Court of the United States

in the case of Chafin v. Chafin 568 U.S. 165 (2013) and the decision of the Court of

Appeals, 7th Circuit, in the United States, in the case of Redmond v. Redmond, 724 F.3d

12. In the points of defence filed on behalf of the respondent, it is pleaded that this Court has

no jurisdiction to adjudicate on the matters raised. It is pleaded that proceedings

13. It is pleaded that the father of E.W., namely Mr. W, who is not only the father of E.W. but

is also the primary carer of both of the older children M.D. and E.W., pursuant to a final

care order made in England at the behest of the respondent, should have been put on

notice of the reliefs now sought by the appellants, and in particular should have been

served with the special summons and notice of motion issued by the appellants, and that

14. It is further pleaded that there is no basis for the reliefs sought as all children are and

always have been habitually resident within the jurisdiction of the Courts of England and

Wales, both de facto and de jure. Accordingly, this Court has no jurisdiction over the

children having regard to the Regulation and, specifically Article 8 thereof. The Courts of

England and Wales were at all times seised for the purposes of the Regulation by reason

of the fact that the children were habitually resident in that jurisdiction when the court

became seised of the matter. It follows that the children were not unlawfully removed

15. Proceedings were not issued in this jurisdiction by the appellants until 10th May, 2019,

and there is no basis upon which it can be argued that the children were habitually

resident in Ireland on that date. On the contrary, they were clearly resident in the

jurisdiction of the Court of England and Wales, and, accordingly, this Court should declare

of its own motion that it has no jurisdiction. The respondent relies on Articles 17 and

16. It is acknowledged that The State (Quinn) v. Ryan establishes that breaches of

fundamental rights granted by the Constitution should lead to an effective remedy.

However, none of the authorities relied upon by the appellants have any relevance to the

forced movement of children across international borders from their primary resident

Member State. The State has an obligation to comply with its obligations under the

Regulation, and the Regulation supersedes domestic law. However, if the appellants are

correct in their assertions as to breaches of their rights (which is denied) their effective

remedy is to seek recognition of the judgment of this Court through the Courts of England

17. The appellants rely upon the finding of the Court of Appeal that the actions of the

respondent in removing the children from the State before service of the Recognition

Order was “wholly unlawful”. It is submitted that, in the light of that finding, and the

decision of this Court both to allow their appeal and to set aside the Recognition Order, it

follows that the appellants are entitled to such further orders as are just to meet the case,

and specifically, an order directing the return of the children to this jurisdiction forthwith.

18. The appellants rely in particular on The State (Quinn) v. Ryan and The State (Trimbole) v.

the Governor of Mountjoy Prison as authorities for the proposition that where there is a

19. It is further submitted that there is an inherent and equitable jurisdiction in the Court to

give effect to the constitutional rights of the appellants and their children, and the

20. It is submitted that, outside of this jurisdiction, there is authority for the making of such

consequential orders as are sought in this case, and, as mentioned above, the appellants

rely upon the decision of the Supreme Court of the United States in the case of Chafin v.

21. In Chafin, the petitioner, who is a citizen of the United Kingdom, had been living with the

child of the couple in Scotland when the respondent was on military service in

Afghanistan. When the respondent, following military service in Afghanistan, travelled to

Alabama, he was joined there soon afterwards by the petitioner and their child, E.C.

However, the petitioner was subsequently arrested for domestic violence and as a result

of her arrest, it came to light that she had overstayed her visa and she was deported.

She then brought proceedings before the District Court in Alabama seeking an order

directing the return of E.C. to her country of habitual residence i.e. Scotland. The

petitioner was successful and she immediately left the United States with the child. She

then initiated custody proceedings in Scotland, and the Scottish Court granted her interim

custody and a preliminary injunction prohibiting the respondent from removing E.C. from

Scotland. In the meantime, the respondent had appealed the decision of the District

Court in Alabama to the Court of Appeals for the Eleventh Circuit. That Court dismissed

the appeal on the grounds that it was moot (because E.C. was then in Scotland) and the

Court considered that it did not have the power to grant the relief sought.

22. The issue before the Supreme Court was whether or not the appeal of the respondent was

moot. The Supreme Court concluded that it was not moot, stating at p. 8:-

“But even if Scotland were to ignore a U.S. re-return order, or decline to assist in

enforcing it, this case would not be moot. The U. S. courts continue to have

personal jurisdiction over Ms. Chafin, may command her to take action even

outside the United States, and may back up any such command with sanctions …

No law of physics prevents E. C.’s return from Scotland … and Ms. Chafin might

decide to comply with an order against her and return E.C. to the United States ...

After all, the consequence of compliance presumably would not be relinquishment

of custody rights, but simply custody proceedings in a different forum.

Enforcement of the order may be uncertain if Ms. Chafin chooses to defy it, but

such uncertainty does not typically render cases moot. Courts often adjudicate

disputes where the practical impact of any decision is not assured.”

23. The appellants rely on this decision as authority for the proposition that this Court may

make an order directing the return of the children to this jurisdiction, even though there

is a possibility that the respondent may not comply with such order.

24. In Redmond, the parents of the child concerned were not married although they shared

the same family name. The parties had been residing in Ireland, but when their

relationship broke down, soon after the birth of their child, the mother returned to Illinois

in the United States with the child. Because the parties were not married, the father was

not at that time entitled to bring forward an application under the Hague Convention (the

“Convention”). It took him some three and a half years to overcome that obstacle,

following which he issued proceedings in this country seeking guardianship and joint

custody of the child and also an order directing that the child live in this country. The

mother participated fully in the proceedings, but the father succeeded in obtaining the

orders he sought. However, the Court allowed the mother to take the child back to Illinois

to make preparations for their move to Ireland, but only on condition that the mother

promise under oath to return with the child by a specified date. The mother made that

promise but did not honour it. She returned to Illinois with the child and remained there

with her, following which the father brought an application under the Convention before

the District Court of Illinois. That Court held in favour of the father on the grounds that

by disobeying the Irish order, the mother had wrongfully removed the child from Ireland.

The Court also held that the habitual residence of the child was in Ireland on the grounds

that the parties had, when the mother became pregnant, agreed that the baby would be

raised in Ireland. As a result, the child was returned to Ireland.

25. However, the mother successfully appealed the decision of the District Court. The

appellate court found that the child was habitually resident in the United States at the

time that the mother returned to Illinois with him, and that being the case, the District

Court was wrong to order the child to be returned to Ireland. Because the child had been

returned to Ireland, the Court was required to consider the issue of mootness. The court

was referred to the decision in Chafin v. Chafin and concluded that it had an equitable

authority to issue an order requiring the return of the child to the United States.

26. On the basis of all of the foregoing authorities, it is submitted on behalf of the appellants

that, having invoked the jurisdiction of this Court, the respondent is subject to the

jurisdiction of the Court, and it is open to this Court to make orders directing the

production of all three children before the Court, notwithstanding that they have been

resident in the United Kingdom since their return there almost two years ago. Once the

children are returned here, it is open to the respondent to seek recognition again in this

jurisdiction of the orders made in the Courts of England and Wales.

27. Furthermore, the right to an effective remedy is guaranteed by Article 47 of the Charter

of Fundamental Rights of the European Union (“the Charter”). Insofar as it is argued that

there is an obligation on this Court to give effect to the Regulation in priority to the terms

of the Constitution, it is clear that the Regulation itself must be interpreted in light of

28. The Court of Justice of the European Union (“CJEU”) has already held that the

enforcement of the Recognition Order prior to the service of the declaration of

enforceability of the same is contrary to Article 33(1) of the Regulation, read in the light

of Article 47 of the Charter (para. 75 of the decision of the CJEU in these proceedings).

29. Insofar as it may be argued on behalf of the respondent that the reliefs now sought were

not sought within the framework of the motion to set aside or the appeal against the

Recognition Order, it is submitted that the issue of relief only arises when the substantive

issue has been determined, and that this is clear from The State (Quinn) v. Ryan and also

30. It is submitted that the matter now comes before the Court in a manner very similar to an

application for production of a person by way of an application for habeas corpus. The

appellants are looking for orders for production of the children, and it is only upon their

production before the Court that issues such as guardianship and custody will arise. It is

then, and only then, that the Court will be required to determine the habitual residence of

the children. However, it is in any case denied that the children were, at the time that

they travelled to Ireland, habitually resident in the jurisdiction of England and Wales.

This is especially so in relation to R.E., who was not subject to any court order at all at

31. It is not correct to say that Mr. W. should have been served with this application. He was

never a party to these proceedings in the first place and that was a decision taken by the

32. By way of alternative argument, the appellants argue that it is open to this Court to

request the Courts of England and Wales, pursuant to Article 15 of the Regulation, to

transfer the proceedings in that jurisdiction to this jurisdiction. Article 15 of the

1. By way of exception, the courts of a Member State having jurisdiction as to

the substance of the matter may, if they consider that a court of another

Member State, with which the child has a particular connection, would be

better placed to hear the case, or a specific part thereof, and where this is in

(a) stay the case or the part thereof in question and invite the parties to

introduce a request before the court of that other Member State in

(b) request a court of another Member State to assume jurisdiction in

child has a particular connection, in accordance with paragraph 3.

A transfer made of the court's own motion or by application of a court of another

3. The child shall be considered to have a particular connection to a Member

(a) has become the habitual residence of the child after the court referred

(d) is the habitual residence of a holder of parental responsibility; or

(e) is the place where property of the child is located and the case

concerns measures for the protection of the child relating to the

33. Firstly, it is submitted that it is not correct to say that Mr. W. should not have been

served with notice of the application for the relief now sought by the appellants. He is the

father of E.W. and the foster carer of both E.W. and M.D. He too has fundamental rights

34. It is submitted that the Regulation governs the issues raised by these proceedings, both

in this jurisdiction and in England and Wales. Furthermore, in cases involving the welfare

of children, it is the best interest of the children that governs the decision to be made by

35. Counsel for the respondent forcibly submits that this Court should now determine the

habitual residence of the children. This Court became seised of this application on 10th

May, 2019, the date of the issue of the special summons, and on this date all three

children were clearly resident in England and Wales. Accordingly, this Court should, of its

own motion, decline jurisdiction in the matter pursuant to Article 17 of the Regulation.

36. At the time that E.W. and M.D. were taken by the appellants from the jurisdiction of

England and Wales to this country, they were the subject of care orders which expressly

prohibited their removal from the jurisdiction of England and Wales. Therefore, Articles 9

and 10 of the Regulation apply, and if the Court is satisfied that there was an abduction

then an Irish court could never have jurisdiction in relation to E.W. and M.D.

37. As regards R.E., it is accepted that his situation is different. Nonetheless, he is now

habitually resident in England and Wales. As regards whether he was so at the time that

he was brought into this country by the appellants, it is submitted that the court should

apply the test identified by the CJEU in Mercredi v. Chaffe, [Case C-497/10PPU, 22nd

“The concept of ‘habitual residence’ for the purposes of Articles 8 and 10 of Council

Regulation (EC) No. 2201/2003 of 27th November 2003 concerning jurisdiction and

the recognition and enforcement of judgments in matrimonial matters and in

matters of parental responsibility, repealing Regulation (EC) No. 1347/2000, must

be interpreted as meaning that such residence corresponds to the place which

reflects some degree of integration by the child in a social and family environment.

To that end, where the situation concerned is that of an infant who has being

staying with her mother only a few days in a Member State – other than that of her

habitual residence – to which she has been removed, the factors which must be

taken into consideration include, first, the duration, regularity, conditions and

reasons for the stay in the territory of that Member State and for the mother’s

move to that State and, second, with particular reference to the child’s age, the

mother’s geographic and family origins and the family and social connections which

the mother and child have with that Member State. It is for the national court to

establish the habitual residence of the child taking account of all of the

If the application of the above mentioned tests were, in the case in the main

proceedings, to lead to the conclusion that the child’s habitual residence cannot be

established, which court has jurisdiction would have to be determined on the basis

of the criterion of the child’s presence under Article 13 of the Regulation.”

38. Applying this test, it is submitted that R.E. was born in Southampton to English parents

who have no connections to this jurisdiction. His siblings are, and have at all times been,

habitually resident in England and Wales, and it would be most unusual against that

background to have a different habitual residence to that of his siblings. It is submitted

that if the court is satisfied that R.E. was removed unlawfully from the jurisdiction of

39. While it is accepted that at the time the appellants brought R.E. to this jurisdiction rights

of custody and parental responsibility were not vested in the respondent, they were

vested in the Court of England Wales. Reliance is placed in this regard in the case of X

County Council X v. B (Abduction: Rights of Custody in the Court) [2010] 1 FLR 1197 in

which case Macur J. held that on the date of the departure of the children in that case

from England to this country, the Courts of England and Wales were seised of the matter

40. It is submitted that the appellants still have an effective remedy; they can apply to the

Courts of England and Wales for an order to revoke the existing orders made in relation to

the children. Counsel submitted that before the CJEU, the respondent indicated that it

would respect any Irish judgments and would hear arguments thereafter in relation to an

41. Insofar as the appellants are now relying upon the Act of 1964, any decision that this

Court now takes must be governed in the best interest of the children. Section 3 of the

Act of 1964 makes it clear that the welfare of the children is paramount. The Court must

therefore have regard to the fact that E.W. is living with his father and E.W. and M.D. are

in the foster care of Mr. W. Moreover, they are attending local schools. A decision is

awaited regarding the placement of R.E. (which decision has been deferred pending the

outcome of these proceedings). It is submitted that the return of the children to this

42. It was open to the appellants to participate in the ongoing proceedings in England and

Wales, and they choose not to do so. Full care orders in respect of E.W. and M.D. have

been made in the intervening period. As a result, they have been placed in the care of

Mr. W. In seeking the reliefs that they do, the appellants seek to reverse all of that,

43. A full care order has also been made in relation to R.E., who has been the subject of a

placement order of the court since December, 2017. However, counsel for the respondent

informed the Court that those proceedings are not concluded, pending the outcome of

44. It is submitted that the reliance placed by the appellants on Article 15 of the Regulation is

misconceived. Article 15 operates by way of an exception to Article 8 of the Regulation,

so that a court that is seised of proceedings may, in the particular circumstances of the

case, transfer those proceedings to another jurisdiction where, inter alia, the habitual

residence of those children is in the latter jurisdiction. That is not the case here. In any

case, there are no proceedings in England and Wales to transfer here, as final care orders

as regards all children have been made in England and Wales more than a year ago, and

nor are there substantive proceedings in this jurisdiction to transfer to England and

45. It is submitted on behalf of the respondent that neither Quinn v. Ryan nor Trimbole are

authority for the kind of orders now sought by the appellants in this case. Those cases

concerned the execution of warrants; there were no children involved.

46. As regards Redmond v. Redmond, the decision of the appeal court in the United States

was not surprising, because in that case the Court decided that the child concerned had,

at the relevant time, been habitually resident in the United States. That is not so in this

case i.e. the children are not, it is submitted, habitually resident in this country, whereas

the child in Redmond was found by the Court to be habitually resident in the United

States, hence the Court in that case ordered her return to that jurisdiction.

47. The respondent submits that the reliefs now sought should have been sought as far back

as September, 2017, and insofar as the appellants are asking the Court to exercise a

discretionary remedy, it should do so against the appellants on grounds of delay. If the

Court were to grant the orders sought, the delay created by the appellants themselves

would operate contrary to the best interests of the children, having regard to the fact that

48. The case made on behalf of the appellants in support of this application is, at one level,

relatively straightforward. They argue that since the children were returned to the United

Kingdom pursuant to an order of this Court that has since been set aside, the appellants

are entitled to be put back in the same position as they were prior to the Recognition

Order. This, they argue is the only effective remedy and they further argue that they are

entitled to an effective remedy both under domestic law and the Charter. They also

submit that the Court has the jurisdiction to make such an order notwithstanding the

obvious fact that the children are now in the United Kingdom and out of the reach of the

49. Dealing with this latter point first, the Regulation is entirely silent on this issue. While the

Regulation provides for an appeal against a recognition/enforcement order (which, it will

be re-called, must in the first instance be made following upon an ex parte application)

and while the decision of the CJEU in these proceedings makes clear, for the first time,

that a Recognition Order/declaration of enforceability must be served upon the parties

affected by it, prior to execution of the same, neither the Regulation nor the decision of

the CJEU give any guidance as to the consequences of a successful appeal in

circumstances where the order has already been executed. That being the case, it seems

to me that the availability of any remedy in these circumstances falls to be determined in

50. In principle, I am satisfied that there is no impediment upon the Court such as to prevent

the granting of the orders sought, and that the authorities relied upon by the appellants,

both in this jurisdiction (The State (Quinn) v. Ryan and Trimbole) and in the United States

(Chafin v. Chafin, and Redmond v. Redmond) support the proposition that this Court has

jurisdiction to make orders of the kind now sought by the appellants. All of that said,

however, the appellants were unable to point to any authorities in this jurisdiction in

which such orders have been made in the past. Notwithstanding the very strong views of

the court in The State (Quinn) v. Ryan, it does not appear as though such an order was

contemplated by the Court, although the court was prepared to hold English police

officers in contempt of Court, but for the apology proffered on their behalf. In Trimbole,

the complainant was in custody in this jurisdiction and it was possible to provide an

51. Assuming however that the Court does have the jurisdiction to grant the orders now

sought by the appellants, I think it must be the case that this is a discretionary

jurisdiction which should be exercised only where it is appropriate to do so having regard

to all the circumstances of the case, and not just the fact alone of the wrongful behaviour

of the party against whom the order is sought. By this I mean that if there are other

factors which lean against the granting of the orders sought, these too must be weighed

in the balance of the Court’s consideration of the matter. In this case, it is both

reasonable and necessary to consider the scheme of the Regulation as a whole in order to

decide the issue, even though the Regulation does not expressly address these

52. In the course of his decision of 17th May, 2008, in these proceedings, Hogan J. in the

Court of Appeal referred to a decision of the Supreme Court in Child and Family Agency v.

C.J. [2016] IESC 51. In that case the High Court had made an order directing the return

of a child to the United Kingdom but on that occasion to Scotland. The background

leading up to the making of that order was quite different to the background leading up to

the making of the Recognition Order. But the effect was the same; a child was separated

from its mother and returned to the United Kingdom. All three courts adjudicating upon

the matter (the High Court, Court of Appeal and Supreme Court) were in agreement that

the habitual residence of the child was, at all times, Scotland. In his judgment, O’Donnell

J. noted that it followed, therefore, that the courts of Scotland had jurisdiction in matters

of parental responsibility by reason of Article 8 of the Regulation. One of the issues that

the Court had to consider was what, if anything, should be done by way of redress for the

execution of an order of the High Court which was subsequently set aside, in

circumstances where the child concerned had been returned to Scotland and remained in

that jurisdiction. O’Donnell J. concluded that since the courts of Scotland had jurisdiction

in matters of parental responsibility concerning the child by reason of the fact that the

habitual residence of the child was, at all material times, in Scotland and since those

courts were then exercising that jurisdiction, it would “therefore be an exercise in futility,

and worse, to require the CFA to seek the return of the child when the courts of Scotland

would still have the function, and the obligation of determining how, where and by whom

53. That case is instructive for two reasons. Firstly, the Supreme Court did not appear to

consider that it did not have jurisdiction to make an order for the return of the child.

Rather it considered that it should not make such an order because jurisdiction in matters

of parental responsibility concerning the child were vested in the courts of Scotland. That

was so, was because the court found the child to be habitually resident in Scotland at all

times. Secondly, although fully satisfied that the High Court should not have made an

order directing the return of the child to Scotland, the Court did not consider it

appropriate direct the return of the child, notwithstanding that the effect of the order had

54. In this case, the principal argument of the respondent, in relation to the jurisdiction of

this Court, also revolved around the habitual residence of the children. It is the

respondent’s submission that all three children have, at all times, been habitually resident

in the United Kingdom and that, accordingly, this Court has no jurisdiction in matters of

parental responsibility for the children, by reason of Article 8 of the Regulation. It is

submitted that this Court should, therefore, in accordance with Article 17 of the

Regulation, declare of its own motion that it has no jurisdiction.

55. The appellants, on the other hand, contend that this Court is not now being asked to

make any substantive order in the proceedings. The Court is merely being asked to direct

the return of the children as a consequence of the decision of this Court setting aside the

Recognition Order, and also allowing the appeal against the making of that order. It is

submitted that it is not appropriate or necessary for this Court to make any decision

regarding the habitual residence of any of the children at this juncture. That is a matter

to be addressed in the context of the substantive proceedings, following upon the return

56. With respect, however, I cannot accept the submissions of the appellants in this regard.

The question of habitual residence is central to determination of jurisdiction in matters of

parental responsibility for children. Although, as I have said above, the Regulation

provides no guidance on the orders that should be made where a Recognition Order has

been set aside after its execution, that fact has no bearing upon those provisions that the

57. Since the circumstances of M.D. and E.W. on the one hand, and R.E. on the other hand,

are different, it is necessary to give separate consideration to each. Accordingly, I will

58. M.D. and E.W. had always resided in England up until the time that they were brought by

the appellants to this jurisdiction. By this time, the Courts of England and Wales were

already seised of proceedings concerning their welfare. Interim care orders had been

made, which expressly prohibited the appellants from removing those children from the

jurisdiction of England and Wales. Neither child had any connection of any kind with this

country, and they were brought here for the dual purposes of avoiding the child-care

authorities (the respondent) and the Courts of England and Wales. Applying the test in

Mercredi v. Chaffe, there cannot be the slightest doubt that at the time they were brought

59. Following upon their return to the United Kingdom, the Courts of England and Wales

continued to exercise jurisdiction in the parental responsibility of M.D. and E.W. and this

Court has been informed that final care orders have been made, placing them in the care

of the respondent. As a consequence of these orders, those children have been placed in

the care of the father of E.W. who is also a father figure to M.D. Mr. W. has not been

notified of the making of this application, and it is submitted on behalf of the appellants

that this was unnecessary because this application flows as a consequence of the

proceedings issued by the respondent itself, and it was the respondent chose not to join

60. Insofar as the appellants seek the orders that they do as a consequence of my decision of

12th April, 2019 (as distinct from pursuant to the proceedings they have issued under the

Act of 1964), I think that the orders that they seek should be refused because, in the

words of O’Donnell J. in Child and Family Agency v. C.J., such orders would be an

exercise in futility. The Courts of England and Wales have at all times had jurisdiction

over matters of parental responsibility concerning M.D. and E.W. and have exercised that

jurisdiction. Any changes to the arrangements concerning the guardianship, custody or

access to M.D. and E.W. are and have always been a matter for the Courts of England and

Wales. That would remain the case even if they were to return here, and no useful

purpose could be served by ordering their return here. For this same reason, their return

here could not amount to an effective remedy for the purpose of the Charter. If the

orders sought were granted, and the children were returned here, at great disruption to

them, it is almost inevitable that they would have to be returned at some future date to

the courts having jurisdiction in their parental responsibility i.e. the courts of England and

61. Insofar as the appellants seek the reliefs concerned pursuant to the Act of 1964, I think

that the respondent is correct in arguing that this Court should decline jurisdiction in

relation to those proceedings, pursuant to Article 17 of the Regulation. This follows from

my conclusion that the courts of England and Wales have jurisdiction as regards matters

62. I turn now to consider the situation of R.E. On the date on which R.E. was brought into

this jurisdiction by the appellants, he was not the subject of any court orders and nor

were there any proceedings in being regarding parental responsibility for R.E. However,

the respondent had informed the appellants of its intention to issue proceedings

concerning R.E. and had also secured from the second named appellants, a commitment

on his part to leave the family home immediately and not to have any further contact with

any of the three children without first informing the respondent, pending the outcome of

63. As noted by Whelan J. at para. 25 of the judgment of the Court of Appeal of 28th

November, 2018, on the date that they travelled to Ireland, the appellants appear to have

been the only holders of rights of custody regarding R.E., and they arguably had the legal

capacity to change his habitual residence. As a matter of fact, the appellants were

attempting to avoid the jurisdiction of both the respondent and the Courts of England and

Wales by moving to this jurisdiction. It was, therefore, surely their intention to establish

for R.E. a habitual residence in this country and as the only persons having parental

responsibility for R.E. at that point in time, they had the entitlement to do so. But it does

64. In Mercredi v Chaffe, the CJEU laid down the test to be applied in determining “habitual

residence” for the purposes of Article 8 and 10 of the Regulation. That test specifically

considers the situation of an infant who has been staying only a few days in the member

state to which he/she has been removed. As noted above, the factors to be taken into

consideration include: the duration, regularity, conditions and reasons for the stay in the

territory of the Member State and for the [mother’s] move to that State, and, secondly,

with particular reference to the child’s age, the [mother’s] geographic and family origins

and the family and social connections which the mother and child have with that Member

65. In this case, of course, it is not just the mother’s background that must be considered but

the background of both appellants. However, it has not been suggested that either of the

appellants had any connection of any kind with this country in the past. For the purposes

66. It is common case that the appellants came here with the children for one purpose and

one purpose only – to avoid the respondent and the jurisdiction of the Courts of England

and Wales. They had no previous connection with this country of any kind. All of their

family connections are in the United Kingdom. E.W’s father resides in the United

Kingdom, and he is also a father figure to M.D. The habitual residence of R.E’s siblings at

all times remained in England. R.E. was in Ireland for just sixteen days when he was

67. Counsel for the respondent argued that it would be most unusual for siblings to have a

different habitual residence. While this was not accepted by counsel for the appellants, I

think it must be correct in the case of siblings who have, at all times, resided in the full

time care of one or other of their natural parents, in this case, their mother. It is very

difficult to imagine that two out of three children could have habitual residence in one

country while the third child has habitual residence in another, in circumstances where all

68. It is also necessary to consider the reasons of the appellants in moving to this country.

Since the CJEU has determined that these reasons are relevant, and must be taken into

account, it follows that some reasons will lend themselves more readily to a change in

habitual residence and some reasons are less likely to do so. So, for example, where

children are moved as part of a family for purely economic reasons, that is likely to point

to a change in habitual residence. But can the same be said where the sole reason for the

move is a desire to escape the statutory childcare regime in a member state?

69. Recital 12 of the Regulation states that the grounds of jurisdiction in matters of parental

responsibility are “shaped in light of the best interest of the child …”. Furthermore, Article

24 of the Charter provides that in all actions relating to children, whether taken by public

authorities or private institutions, the child’s bests interests must be a primary

70. In general terms, it could hardly be in the best interests of children that their parents

could avoid the authorities entrusted with safeguarding the welfare of children by

effecting a change in the habitual residence of the child or children concerned which has

no other purpose. It is not difficult to see how this is more likely to jeopardise the welfare

of children than to promote their best interests. Accordingly, it is difficult to see how a

court could accept that the habitual residence of a child has been changed where the only

reason for a change in the residence of the child is to avoid those very authorities

71. I consider that R.E’s habitual residence upon his birth must have been that of his parents

and half siblings i.e. England. Since he was in this country only fifteen days, and since

the only reason for his being here was one which should not, for the reasons given above,

be taken into account in determining his habitual residence, I consider that R.E’s habitual

residence did not change when he was brought here by his parents. In my judgment,

R.E. has at all times been habitually resident in the United Kingdom and subject to the

jurisdiction of the Courts of England and Wales. That being the case, this Court should

not make an order for the return of R.E. to this jurisdiction, notwithstanding the highly

unsatisfactory circumstances by which he was returned to England. Also, for the same

reasons given in the cases of M.D. and E. W., this court should decline jurisdiction in the

72. Finally, I have given consideration to the alternative argument made on behalf of the

appellants that, if this Court is unwilling to grant orders directing the return of the

children here, it should request the Courts of England and Wales to transfer proceedings

in that jurisdiction to this jurisdiction, pursuant to Article 15 of the Regulation. There are

two difficulties with that proposition. The first is that none of the children have a

particular connection with this jurisdiction, as required by Article 15.3 of the Regulation.

The second is that there are no proceedings to transfer in the cases of M.D. and E.W. In

the case of R.E., it is unclear if there are any proceedings that could be transferred,

because the information given to the Court was somewhat unclear. While this Court was

informed that a full care order has been made in relation to R.E., the Court was also

informed that those proceedings are not concluded, pending the conclusion of these

proceedings. I assume that this refers to the injunction previously granted by this Court

restraining the respondent from continuing with any proceedings leading to the adoption

of R.E. But, in any case, whether or not there are proceedings that could be transferred,

R.E. does not have the particular connection with this jurisdiction required by Article 15.3

73. However, it remains open to the appellants to apply to the courts of England and Wales

for the discharge of the existing care orders in relation to the children. In my view, that

is the appropriate course for them to take. They may well feel that this will be a pointless

exercise, based on their experience to date, but in the intervening period, they have had

together another child, and the Court has been told that the CFA has not expressed any

concerns about the capacity of the appellants to care for that child. That being the case,

the CFA may well be able to render some assistance to the appellants in making such an

application, most particularly in relation to R.E., since he is the child of both appellants

and the full sibling of the child most recently born to them. If it is indeed the case that

the CFA is satisfied that the appellants are discharging their parental responsibilities

satisfactorily in respect of their new born child, and that the CFA would have no concerns

as regards the return of any of the other children to the appellants, then in my view this

is something that the CFA should communicate to the respondent, and it should support

the appellants in any way it reasonably can in whatever applications they may make to

court in England. It would in my view be incumbent on the CFA to provide such assistance

(assuming it is has no concerns about the appellants) having regard to the role played by

the CFA in the return of the children to the United Kingdom.

Result: The reliefs sought by the respondents were refused

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Hampshire County Council v C.E. & anor [2019] IEHC 641 (30 July 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_641.html Cite as: [2019] IEHC 641

High Court of Ireland Decisions