[2019] IEHC 340
THE HIGH COURT
Record No. 2017/18/FJ
IN THE MATTER OF CHAPTER III OF COUNCIL REGULATION (EC)
2201/2003
and
IN THE MATTER OF FOREIGN PROCEEDINGS BEARING REFERENCE NO. P017P00941
and
IN THE MATTER OF E.W. A MINOR BORN ON THE 23RD DAY OF AUGUST 2014
and
IN THE MATTER OF M.D. A MINOR BORN ON THE 26TH DAY OF MAY 2012
and
IN THE MATTER OF R.E. A MINOR BORN ON THE 3RD SEPTEMBER 2017
HAMPSHIRE COUNTY COUNCIL
APPLICANT/RESPONDENT
TO APPEAL
RESPONDENTS/APPELLANTS
JUDGMENT of Mr. Justice Binchy delivered on the 12th day of April, 2019
1. This judgment is concerned with two applications arising out of the same decision of this Court (Creedon J.) made on 21st September, 2017, whereby Creedon J. ( ex parte ) made orders recognising and enforcing an order of the High Court of England and Wales made in that jurisdiction (in Portsmouth) on 8th September, 2017, ("the Return Order") pursuant to Chapter III of EC Council Regulation 2201/2003, commonly referred to as Brussels II Bis (the "Regulation"). The applications now before this Court are:-
(i) an application to set aside the order of Creedon J. ("the set aside application"); and
(ii) an appeal against the order of Creedon J. brought pursuant to Article 33 of the Regulation. In an earlier decision in these same proceedings in the Court of Appeal, Hogan J. noted that this right of appeal being, as it is, an appeal from a decision of one judge of the High Court to another judge of the High Court, might more usefully be regarded as in the nature of an application to set aside a provisional order of the High Court made ex parte albeit that it is confined to the limited grounds provided for in Article 23 of the Regulation.
2. There is a very long history leading up to these applications, Following upon the decision of Creedon J., the applicants purported to exercise their right of appeal from that decision, but Reynolds J., on 18th January, 2018, held that the appeal was lodged out of time. The appellants then appealed that decision to the Court of Appeal, and in a decision dated 17th May, 2018, ( Hampshire County Council v. C.E. and N.E. & Ors [2018] IECA 154) that Court decided to refer certain questions to the Court of Justice of the European Union ("CJEU"). Very soon thereafter, the appellants made a further application to the Court of Appeal, resulting in a further decision from the Court of Appeal on 7th June, 2018 (under the citation [2018] IECA 157), by which it referred another question to the CJEU. The decision of the CJEU on all the questions referred to it was handed on down on 19th September, 2018 ( Hampshire County Council v. C.E. and N.E . (Joined Cases C-325/18 PPU and C-375/18 PPU) ECLI:EU:C:2018:739). Following upon that decision, the Court of Appeal, on 28th November, 2018 (under the citation [2018 IECA 365]), handed down its decision on the appeal of the appellants, in the light of the decision of the CJEU, but also having regard to a new argument advanced by the appellants in relation to the appeal period. In that decision the Court of Appeal determined that the appeal of the appellants from the decision of Creedon J. had been brought within the time prescribed by the Regulation, and remitted the appeal itself for determination by this Court as a matter of urgency. The appeal and the set aside application, were heard over three days concluding on 28th March, 2019.
Background
3. The background giving rise to the application made before Creedon J. on 21st September, 2017, has already been set out in considerable detail in the judgments of the Court of Appeal. Nonetheless, it is necessary to rehearse it again in order to make clear the context of the arguments advanced by each of the parties in relation to each application.
4. On 5th September, 2017, the appellants and the three minors referred to in the title to these proceedings travelled to Ireland by ferry from the United Kingdom. The youngest of the three minors, R.E., had been born only two days previously. The appellants had no previous connection to this State and acknowledged that they travelled here with the three minors for the sole purpose of putting themselves out of the reach of the respondent, the respondent having earlier that year (on 30th June) obtained interim care orders pursuant to childcare legislation in the United Kingdom in respect of the two older children, E.W. and M.D. As regards R.E., the respondent had, prior to his birth, indicated an intention to the appellants to make an application for a care order following his birth. These interim care orders made in respect of the two older children included in each case an order prohibiting the appellants from removing the children from the United Kingdom. The first named appellant is the mother of all three children, and the second named appellant is the father of R.E.
5. The circumstances by which the Return Order was obtained by the respondent are central to the determination of both the set aside application and the appeal. In resisting the set aside application and the appeal now before this Court, Mr. Richard Hadley of the respondent swore an affidavit dated 18th December, 2018. He deposes that on 4th September 2017, the respondent received a report from a psychologist regarding the appellants. This report had been procured at the direction of the family court in Portsmouth. The report evaluated the appellants and assessed the risks to the children of being in the care of the appellants. It was obtained to enable that Court to make a determination as regards whether or not to approve care plans previously prepared by the respondent for all three children (even though at this time R.E. had not yet then been born). That report, which was dated 4th September, 2017, included a conclusion that the second named applicant presented a medium to high risk, to any child in his care, of exposure to arguments and violence, and that the first named respondent represented a medium risk to her children as sole carer and medium to high risk when parenting them jointly with the second named respondent.
6. Mr. Hadley avers that on 5th September, 2017, following upon changes in the interim care plans of the respondent relating to the appellants and the children (which changes were made as a result of the report of the psychologist, and which changes included, inter alia , the removal of the children from the care of the appellants), a "contract of expectations" was signed voluntarily by the second named appellant whereby he agreed to leave the family home and not to return without the permission of the family court.
7. On 6th September, 2017, having considered the report of the psychologist, the family court in Portsmouth approved the changes in the interim care plans for the children. On the same date, the Court made an interim care order in respect of R.E., so that all three children were now subject to interim care orders. Mr. Hadley also avers that the childrens' court appointed guardian fully supported the proposed changes in the interim care plan and specifically the application of the respondent to remove the children from the care of the appellants. The appellants did not attend the court hearing on 6th September, 2017, because, by this time they were in Ireland.
8. Mr. Hadley avers that the respondent was not aware that the appellants had left the United Kingdom at the time that the applications to the family court proceeded. He further avers that the appellants were nonetheless represented by counsel at this hearing, and the paternal grandparents of R.E., (mother and stepfather of the second named respondent) did attend that hearing. Mr. Hadley avers that the paternal grandparents informed the Court that the appellants would not be attending because the first named appellant had suffered a bleed during the night following the birth of R.E., and indicated that the first named appellant might need to return to hospital. The solicitors for the parties were unable to contact the appellants by telephone. In any case, the Court on this date made the orders referred to above. After the making of these orders, on the same day, the respondent attended at the home of the appellants to remove the children from the care of the appellants, but received no reply at the door as a result of which police assistance was required. Upon gaining entry to the home, it was apparent to the respondent that the appellants had fled. Mr. Hadley avers that at this point in time the respondent did not know that the appellants were in Ireland.
9. However, on the following day, 7th September, 2017, the respondent became aware that the appellants had travelled to this country, and were in Co. Wexford. In light of this development, the respondent considered it a matter of utmost urgency that an application should be made to the High Court in Portsmouth for the following orders:-
10. While it is not clear who first informed the respondent as to the whereabouts of the appellants and the children, it was most likely the Child and Family Agency ("CFA") in this country which, also on 7th September became aware, through the Gardaí, of the presence of the family in Wexford. That this is so apparent from an affidavit sworn by Ms. Claire Farrell, Social Worker of the CFA on 17th April, 2018. This affidavit was sworn at the request of the Court of Appeal. The affidavit of Mr. Hadley makes it clear that on 7th September, 2017, the respondent knew that the appellants and the children were in Wexford, and the affidavit of Ms. Farrell makes it clear that the exact address was also known to the CFA. The Gardaí were aware of the presence of the family because of contact made with them by the appellants themselves, and not on account of any activities of the appellants or because they had "come to the attention of the Gardaí", in the sense in which that phrase is used.
11. In the course of the hearing of these applications, this Court was provided with email correspondence exchanged between Ms. Farrell and a Ms. Cabral of the respondent, and it is clear from that correspondence that from mid-morning of 8th September, at latest, the two agencies, i.e. the respondent and the CFA were in contact with each other, but it seems more likely that that contact commenced the previous day, having regard to the averment of Mr. Hadley that on 7th September, the respondent knew the family were in Ireland and specifically in Co. Wexford. I mention all of this because, that being the case, it was open to the respondent to engage the assistance of the CFA for the service of any documentation on the appellants, should the need arise and, in fact, the respondent did just that in the weeks following.
12. It did not do so, however, for the purpose of the application made to the High Court in Portsmouth on 8th September. Instead, on the morning of 8th September, the solicitor acting on behalf of the respondent notified the two firms of solicitors that had represented each of the appellants in the separate care proceedings that were before the family court, of the intention of the respondent to make application to the High Court later that day, and purported to serve the proceedings on those firms of solicitors. Both firms of solicitors responded by email almost immediately. The solicitor acting on behalf of the second named appellant replied and declined to accept service of the proceedings, while the solicitor acting on behalf of the first named appellant replied stating that she was still seeking instructions from her client and had been unable to contact the first named appellant. Mr. Hadley does not aver that these responses were drawn to the attention of the High Court in Portsmouth when the respondent moved its application to that Court for orders admitting the children to wardship, and also for orders directing the return of the children to England. Those applications were granted, in the absence of the appellants or any representatives appearing on their behalf and, at the same time, the interim care orders previously made by the family court in respect of each of the children were then vacated. The Court also issued a certificate in accordance with Article 39 of the Regulation whereby it certified, inter alia , that judgment was not given in default of appearance. The basis upon which this certificate was issued by the Court is unknown.
13. In any case, counsel on behalf of the respondent confirmed to this Court in the course of dealing with these applications that the respondent accepted that judgment had in fact been given in default of appearance and, it must be said, this merely recognises the obvious fact that the appellants were neither in court nor represented in court when the High Court of Portsmouth dealt with the applications of the respondent and made the orders that it did on 8th September, 2017. However, counsel for the respondent argues that the notification given to and the service of documents on the solicitors who were acting on behalf of appellants in the care proceedings, concerning the intention of the respondent to make the wardship application to the High Court in Portsmouth, on the same day that the wardship application to the High Court was moved, constituted good or sufficient service of the application on the appellant, in the circumstances that prevailed, for the purposes of the Regulation. The question as to whether or not that is so is a central question in these applications which I will address presently.
14. Having obtained the orders sought from the High Court in Portsmouth, the respondent arranged for personal service (in Wexford) of the orders on the appellants, by a Mr. David Farrell. Mr. Hadley avers that Mr. Farrell is employed by the CFA and that the respondent had asked the CFA to serve the parents with all documentation associated with the application to the High Court in Portsmouth, being not only the orders made by the Court but also the application to the Court and the statement of evidence. Mr. Hadley avers that while the affidavit of service completed by Mr. Farrell refers only to the service of the court order, the respondent was assured by email from the CFA that other documents associated with the application had also been served upon the appellants. Mr. Hadley exhibits email correspondence between the respondent and the CFA that demonstrates that all documentation was transmitted to the CFA for this purpose. However, it is clear from the affidavit of Mr. Farrell that he served the court orders only. But in any case this point is of limited relevance simply because by this time the High Court in Portsmouth had already made its orders. Insofar as the appellants would have required all documentation associated with the application for the purposes of appealing the decision of the High Court in Portsmouth, they had all the documentation in sufficient time for such an appeal and did in fact exercise their right of appeal, on 25th September, 2017. Leave to appeal however was refused by Court of Appeal of England Wales (Peter Jackson L.J.) on 9th October, 2017.
15. The respondent and the CFA continued to liaise with each other. Ms. Farrell, in her affidavit, avers that the CFA was informed by the respondent that the respondent intended to seek a recovery order in relation to the children. The CFA informed the respondent that the Return Order would need to be recognised and enforced in this jurisdiction pursuant to the Regulation. On 11th and 12th September, the CFA visited the appellants in their home in Wexford. The first visit was unannounced. Ms. Farrell avers that during the course of this visit, the appellants stated that they had been advised to come to Ireland by an organisation that assists families to avoid social services in the United Kingdom. She avers that the appellants indicated that this was the only reason that they came to Ireland. She also avers that she informed the appellants as to the making of the Return Order.
16. The second visit by the CFA, the following day, was an announced home visit. Ms. Farrell avers that the family home was maintained to a good standard and there were no concerns noted in relation to the home environment. She avers that the appellants were advised that the CFA would be applying for an interim care orders based on the concerns and information received from the respondent. She also informed the appellants that the respondent might apply to the High Court to have the Return Order recognised and enforced in Ireland, and in that event the children would be returned to the United Kingdom.
17. On 14th September, 2017, the District Court in Wexford made interim care orders, with the consent of the appellants, in relation to the three children, for a period of twelve days expiring on 26th September, 2017. The children were then placed in foster care accommodation. The appellants consented to these orders on a "without prejudice basis". Ms. Farrell avers that a social work report was provided by the CFA to the District Court, and that that report had "considerable appendices" attached thereto. She avers that the report, at s. 5 thereof, stated that "UK Social Services are making are awaiting (sic) on ratification of a recovery order for the children in the Irish High Court". She further avers that the respondents were unrepresented at this hearing, but that she had explained to them the contents of the report that would be presented to the Court. A Ms. Mercer of the respondent attended the District Court on this day, but did not give evidence. Ms. Farrell expressly avers that no declaration pursuant to Article 17 of the Regulation was made and further avers that it had been agreed that the interim care orders would be granted for 12 days and that an application to court for an extension of the interim care orders would be made on 26th September, 2017, by which time the appellants would have sought legal representation.
18. The orders that issued forth from the District Court on 14th September, 2017 contained a reference in the title thereof of Article 20 of the Regulation. There was no other reference to Article 20 of the Regulation in the body of the District Court orders, which were otherwise standard form interim care orders. Article 20 of the Regulation, under the heading of "provisional, including protective, measures" provides:-
19. The respondent contends that the orders made by the District Court on 14th September, 2017 were orders made for the purposes of Article 20 of the Regulation. The appellants, however, argue that there is no evidence that this was so, and that the orders made by the District Court on that date are, for the purposes of sub-Article 23(f) of the Regulation, irreconcilable with the Return Order, as a consequence of which the latter should not be recognised in this jurisdiction.
20. On 21st September, 2017, the respondent made an ex parte application to this Court (Creedon J.) for an order recognising the Return order. Such applications are necessarily made ex parte pursuant to Article 31 of the Regulation. That is accepted by the appellants, but it is the appellants' contention that, in the course of advancing this application, the respondent caused the Court to be misled in a number of material aspects of the application, and also failed to draw to the attention of the Court matters that were material to its consideration of the same. These allegations form the basis of the appellants' application to set aside the decision of Creedon J. The allegations are strenuously denied by the respondent on whose behalf it is argued that the Court was fully appraised of all material facts for the purposes of the application, before the Court made its order.
21. In any case, Creedon J. granted the orders sought by the respondent. All three children, then in the care of the CFA, were, later on the same day, transferred at Rosslare Port from the custody of the CFA into the custody of the respondent and brought back to the United Kingdom where they have since resided. This was done prior to the service upon the appellants of the order of Creedon J. so that they had no opportunity to prevent the execution of her order prior to any appeal of the same. These actions have been the subject of severe criticism by the Court of Appeal, in the decisions to which I referred above.
22. As I mentioned in the opening paragraph of this decision, there are two matters before this Court for determination: firstly, the set aside application and secondly, the appeal of the appellants from the order of Creedon J. pursuant to Article 33 of the Regulation. I turn now to address each of those matters in that order. However, before addressing the applications before the Court, it is appropriate at this juncture to set out the provisions of the Regulation relied upon by the appellants in both applications.
The Regulation - Provisions relevant to this Decision
23. Article 1 of the Regulation sets out the scope of the same. It states:-
"1. This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to:
(a) divorce, legal separation or marriage annulment;
(b) the attribution, exercise, delegation, restriction or termination of parental responsibility.
2. The matters referred to in paragraph 1(b) may, in particular, deal with:
(a) rights of custody and rights of access;
(b) guardianship, curatorship and similar institutions;
(c) the designation and functions of any person or body having charge of the child's person or property, representing or assisting the child;
(d) the placement of the child in a foster family or in institutional care;
(e) measures for the protection of the child relating to the administration, conservation or disposal of the child's property.
3. This Regulation shall not apply to:
(a) the establishment or contesting of a parent-child relationship;
(b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption; …"
24. Article 23 of the Regulation sets out the grounds of non-recognition for judgments relating to parental responsibility. It provides:- "A judgment relating to parental responsibility shall not be recognised:
(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child;
(b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought;
(c) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally;
(d) on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard;
(e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought;
(f) if it is irreconcilable with a later judgment relating to parental responsibility given in another Member State or in the non-Member State of the habitual residence of the child provided that the later judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.
or
(g) if the procedure laid down in Article 56 has not been complied with."
25. Article 27 of the Regulation under the heading of "Stay of proceedings" provides:- 26. Article 35 of the Regulation under the heading of "Stay of proceedings" provides:- 27. Article 37 of the Regulation under the heading of "documents" provides:- "1. A party seeking or contesting recognition or applying for a declaration of enforceability shall produce:
(a) a copy of the judgment which satisfies the conditions necessary to establish its authenticity;
and
(b) the certificate referred to in Article 39.
2. In addition, in the case of a judgment given in default, the party seeking recognition or applying for a declaration of enforceability shall produce: 28. Article 39 of the Regulation under the heading of "Certificate concerning judgments in matrimonial matters and certificate concerning judgments on parental responsibility" provides:- "The competent court or authority of a Member State of origin shall, at the request of any interested party, issue a certificate using the standard form set out in Annex I (judgments in matrimonial matters) or in Annex II (judgments on parental responsibility)."
Set aside application 29. The application made before Creedon J. was grounded upon an affidavit of Mr. Niall McGrath, solicitor of McCarthy and Associates, solicitors in this jurisdiction for the respondent. In his affidavit, which is dated 20th September 2017, Mr. McGrath outlines the background to the application. He describes the relationship between the appellants and the three children. He refers to the interim care orders (made in England) made in respect of the two older children. Separately he refers to the successful application for a separate interim care order in respect of R.E. on 6th September, 2017. He then goes on to state how, at "a date unknown" and in breach of the interim care orders, the appellants travelled to Ireland with the children. He refers to the fact that at the time of swearing his affidavit, the children were in the care of the CFA pursuant to interim care orders made in this jurisdiction, which he describes as having being made pursuant to the provisions of Article 20 of the Regulation.
30. He then goes on to deal with the nature of the application before the Court and the requirements for recognition of the Return Order. He then proceeds to address three of the matters referred to in Article 23 of the Regulation in order to satisfy the Court that the matters addressed do not arise. Although he does not expressly refer to the provisions of Article 23 of the Regulation to which he is referring, it is clear that he is addressing sub-Articles 23(a), (b) and (c) of the Regulation. As regards sub-Article 23(a) of the Regulation, he avers that recognition of the Return Order is not contrary to public policy in this country, having regard to what is in the best interests of each of the children. He says that the order sought to be enforced is made in aid of care proceedings in the United Kingdom, which are intended to provide for the proper care of the children. Moreover, he says that the children's voice will be heard in such proceedings and that the children are wards of court in England who were removed from that jurisdiction in breach of care orders. Therefore, it would be contrary to public policy not to return the children to the United Kingdom.
31. Secondly, he avers that the orders sought to be enforced were not made without the children having been given an opportunity to be heard. He submits that the Return Order does not determine the care status of the children which, coincidentally, was listed for hearing again in Portsmouth on 21st September (the same day as the application to Creedon J., and which would require adjournment in the circumstances) and that the children's voice will be heard through a court appointed guardian. He also says that in any case the Return Order was made in circumstances of urgency, where the appellants had fled to Ireland.
32. Thirdly, in relation to sub-Article 23(c) of the Regulation, he relies on a certificate issued by the High Court in Portsmouth pursuant to Article 39 of the Regulation, which issued at the same time as the Return Order, and which states that that order was not made in default of appearance. However, he draws to the attention of the Court that the appellants were not present in Court when the Return Order was made, but then proceeds to state that the legal representatives of the appellants were notified of the hearing of the application for the Return Order, and he submits that, accordingly, the exception in sub-Article 23(c) of the Regulation does not arise.
33. In relation to the other matters set out in sub-Articles 23(d) - (g) of the Regulation he avers that, while it is a matter for legal submission, none of the circumstances provided for in those sub-Articles arise.
34. The appellants' legal representatives subsequently obtained a copy of the DAR transcript of the proceedings before Creedon J. on 21st September, 2017. It is my understanding that this did not become available for a considerable time after the decision of Creedon J., upon a direction from the Court of Appeal. It is the appellants' case that the respondent, both in the grounding affidavit of Mr. McGrath and when moving the application before Creedon J. failed to make full and frank disclosure of all material matters, that it failed to uphold the requirement of uberrima fides , and that the respondent knowingly made an application ex parte to obtain an order that it knew, or ought to have known, it was not entitled to and could not in law be granted. The application to set aside the order of Creedon J. is grounded on the affidavit of Mr. John V. Kelly, solicitor for the appellants who avers and submits therein as follows:-
(1) The respondent failed to disclose to Creedon J. the full circumstances in which the Return Order was made. Specifically, it was asserted to Creedon J. on behalf of the respondent that the legal representatives of the appellants had been notified of the hearing before the Court in Portsmouth, and reliance was then placed upon the Article 39 certificate so as to persuade Creedon J. that the Return Order was not a judgment made in default of appearance. However, Creedon J. was not informed that notification to the solicitors concerned was given only on the morning of the hearing and nor was the replying correspondence from those solicitors opened to Creedon J. In short, the impression was created that the appellants had received not just notice, but adequate notice of the application through solicitors who were authorised to act on their behalf in connection with the same.
(2) That the respondent did not inform the Court that it had not made any effort to serve the appellants themselves, or that it might have been possible for them to do so having regard to the fact that by the time the application for the Return Order was made the respondent knew that the appellants were in Wexford and was in contact with the CFA.
(3) The respondent misled the Court by informing it that since the Article 39 certificate stated that the judgment had not been given in default of appearance, that issue simply did not arise. The respondent must have been aware that this was incorrect, notwithstanding the Article 39 certificate.
(4) The respondent was clearly aware that the application for the Return Order was moved in circumstances where the appellants had not been served with the proceedings in sufficient time (or at all) to enable the appellants to arrange for a defence to the application, and without the appellants being given an opportunity to be heard.
(5) The Court was not told that the children had never actually been spoken to or met the solicitor acting on their behalf nor any social worker or guardian appointed on their behalf, and therefore no views from any of the children were obtained, as required by sub-Article 23(b) of the Regulation.
(6) The Court was not informed that the respondent was seeking to obtain the return of R.E. with the intention of having him adopted.
(7) The Court was informed that the orders made by the District Court in Gorey on 14th September, 2017 were made pursuant to Article 20 of the Regulation, and this was not correct. The Court was not informed that the orders of the District Court had been made by consent and without any consideration of jurisdiction or of Article 20. The Court was not told that the District Court orders were made on or without prejudice basis.
(8) The Court should have been informed that in another case which was proceeding simultaneously before Humphreys J., a stay had been placed on a return order by Barrett J. (almost immediately following upon making a recognition order, ex parte ) and that that very issue i.e. the jurisdiction of the Court to grant such a stay was a live issue in the substantive proceedings at hearing before Humphreys J., in which case both the solicitor and counsel acting on behalf of the respondent in this case, were also acting on behalf of the local authority in that other case.
35. In reply to these issues, Mr. Hadley, avers and submits as follows:- (1) The appellants had absconded. They could not be contacted by telephone. They were not responding to their own solicitors. There was therefore no realistic or practical way that the respondent could contact the appellants.
(2) Documentation relating to the application made by the respondent to the High Court in Portsmouth was served on the solicitors that had been acting for each of the appellants, prior to the application proceeding. Mr. Hadley exhibits email correspondence between the solicitor for the respondent and the solicitors who had been acting on behalf of the parents by way of proof of this service.
(3) It is incorrect to say that Return Order was granted in circumstances which would result in the removal of the parental responsibility of the parents/appellants, contrary to sub-Article 23(d). Mr. Hadley submits that that is not the effect of the Return Order, since the parental responsibility of the appellants could not be removed outright save by an adoption order.
(4) At the time the Return Order was granted, the children were aged 5, 3, and 5 days old. It would have been impossible for any of the children to understand the nature of the application before the court in Portsmouth. However, both the children's solicitor and guardian were in court and supported the application. Since the appellants had absconded and shut themselves off from all communications with the authorities in the United Kingdom, and were not engaging with the care proceedings in England, it was not possible for the children's guardian to have met with the children. The guardian was as concerned for the welfare of the children as the respondent and had no hesitation in supporting their return to the United Kingdom, in circumstances in which the courts there had already determined that the children faced an immediate risk of serious harm in the care of the appellants.
(5) It is incorrect to say that the return of R.E. was sought in connection with his intended adoption. No decision had been taken at that time as regards the adoption of R.E. and all options as regards R.E. remained under consideration in accordance with a court timetable put in place by the Family Law Court on 6th September, 2017.
36. Legal submissions made on behalf of the respondent largely reflect the points made by Mr. Hadley in his affidavit. Additionally however, it is argued that urgent action was required, in the interests of the welfare of the children, following upon the abscondence of the appellants with the children. Once a party has absconded, personal service cannot be effected. As soon as the respondent was aware as to the whereabouts of the appellants, every effort was made to serve and notify the appellants as to the making of the Return Order, and the documents grounding the application for same.
37. It is further submitted on behalf of the respondent that the application to set aside the Return Order should be refused on grounds of delay. The delay involved is more than fourteen months.
Conclusion on application to set aside
38. Counsel for the appellants referred me to a number of authorities relating to the principles to be applied in applications to set aside a judgment made ex parte . Counsel relied in particular on the decision of Clarke J. (as he then was) in Bambrick v. Cobley [2005] IEHC 43 in which Clarke J. set out the factors to be considered in such applications as follows:
"1. The materiality of the facts [not disclosed].
2. The extent to which it may be said that the plaintiff is culpable in respect of a failure to disclose. A deliberate misleading of the court is likely to weigh more heavily in favour of the discretion being exercised against the continuance of an injunction than an innocent omission. There are obviously intermediate cases where the court may not be satisfied that there was a deliberate attempt to mislead but that the plaintiff was, nonetheless, significantly culpable in failing to disclose.
3. The overall circumstances of the case which lead to the application in the first place."
And that
"… the test by reference to which materiality should be judged is one of whether objectively speaking the facts could reasonably be regarded as material with materiality to be construed in a reasonable and not excessive manner."
39. In that case, Clarke J. concluded:- "Applying those criteria to the facts of this case it does seem to me that the non-disclosed facts were of significant materiality. For the reasons set out above there is a very real possibility that the court would either have made no order or potentially required short service and considered an order only in respect of a significantly lesser sum had it been apprised of the full facts."
40. In his affidavit grounding the application, Mr. McGrath drew to the attention of the Court that the appellants were not present in the Court when the Return Order was made, but in the same sentence also averred that the Article 39 certificate, which issued with the Return Order, certifies that the Return Order was not made in default of appearance. He added that the Return Order itself recites that the legal representatives of the appellants were notified of the hearing and accordingly the ground for not recognising the Return Order as provided for in sub-Article 23(b) of the Regulation did not arise.
41. Counsel for the respondent, when moving the application before Creedon J., made submissions in an almost identical vein. Addressing sub-Article 23(d) of the Regulation he stated:-
"But, essentially the question is has the person had an opportunity to be heard and in the circumstances I say where his legal representatives have been served and where the High Court of England has said that in fact it wasn't given in default of appearance that simply doesn't arise".
42. Addressing sub-Article 23(c) of the Regulation he stated:- "And the court will be aware of the recital in the order and also in the certificate that in fact the judgment was not given in default of appearance".
43. Earlier in his submissions he informed the court that:- "The parents' legal representatives were notified so it wasn't given in default of appearance."
44. The effect of these submissions is that Creedon J. was being told that neither of the reasons set out in sub-Articles 23(c) or (d) of the Regulation arose for consideration in this case because (1) the Return Order itself contained a recital that judgment was not in default of appearance and (2) the Article 39 certificate certified likewise and (3) the solicitors for the appellants were informed of the intention of the respondent to make the application to the High Court in Portsmouth.
45. If the facts as relied upon by the respondent in the last paragraph are correct, the question that then arises is whether or not there was any other relevant or material information that was not disclosed to the Court? There most certainly was. The Court was not informed that the solicitors for each of the appellants responded to the notifications that they received, on the morning of the application for the Return Order, and those solicitors had informed the solicitor for the respondent (in England) that they had no instructions to act in this matter and that in one case at least, they were unable to contact their client. The Court was not informed that one of these solicitors also stated that a new application for legal aid would be required in order to act on behalf of that appellant in the matter. Nor does it appear that the Court was informed that this correspondence occurred on the very morning on which the application for the Return Order was being moved. The impression being given to the Court was that service had been effected on the solicitors for the appellants.
46. If the Court had been informed of these matters, it can hardly be doubted that this would have led to some discussion as regards whether or not the appellants had been properly served with notice of the application before the Court in Portsmouth. As likely as not, this would in turn have led to a discussion as regard the requirements under English law for service of documents. Counsel for the appellants submitted that, under English law, in order for service on a party's solicitor to be good service, that party must have consented in writing to a named solicitor accepting service of the application in question on their behalf and to that end the party must have furnished to the applicant in writing the address of his/her solicitor for the purposes of service of the application on the said solicitor or, alternatively, the solicitor must have indicated to the applicant, in writing, that he has been instructed "to accept service of the claim … on behalf of the defendant."
47. In wardship proceedings (in England), there is a rule requiring a minimum notice period of fourteen days to parents/respondents before any hearing or directions hearing in the matter occurs. It is clear that this did not occur and there is no suggestion that any application was made to the Court in Portsmouth to abridge time.
48. Counsel for the respondent, a member of the English Bar, did not dispute that the foregoing correctly represented the law in England and Wales. Not only that, at the hearing of this application, counsel for the respondent expressly accepted that the Return Order was in fact made in default of appearance. Article 37(2)(a) and (b) of the Regulation requires that, in the case of a judgment given in default, the party seeking recognition or applying for a declaration of enforceability shall produce:-
49. Perhaps most importantly of all, the Court was not informed that, at the time he was brought to Ireland, there were no court orders in England relating to R.E. The Court was simply told that an interim care order had been made relating to R.E. on 6th September, 2017. It is possible that, when making application to the High Court in Portsmouth, the respondent did not know the precise date on which the appellants and their children had travelled to Ireland, but by the time they applied to Creedon J. for orders, they must at least have had some doubt as to whether this was before or after the interim care order (made in England, on 6th September, 2017) pertaining to R.E. At a minimum, Creedon J. should have been informed that there was a possibility that R.E. was brought to this country at a time when he was not the subject of any court orders.
50. It can hardly be gainsaid that if all of this was opened to Creedon J., she might well have made a different decision as regards the issue or a declaration of enforceability. That being the case, the failure to disclose to Creedon J. the full circumstances regarding the service of the proceedings (if such it be at all) on the solicitors for the appellants and also the failure to inform the Court accurately and precisely as regards the status of R.E., must surely be regarded as a failure to disclose material facts that had the potential the influence the Court's determination in the matter.
51. The appellants also argue that the respondent should have informed Creedon J. that the interim care order made by the District Court in Gorey that that order was made by consent of the appellants and on a without prejudice basis, and without any decision having been made as to whether or not the habitual residence of the family had changed. It is submitted that the Court should also have been informed that the order was made pursuant to the Child Care Act 1991, and not pursuant to Article 20 of the Regulation. For the purpose of the application to set aside a judgment, I cannot accept this argument. While under an obligation to address the Court correctly on relevant matters of law, and not to mislead the Court in any way as regards the law applicable to the circumstances of the application, a person making an ex parte application can hardly be under an obligation to anticipate legal arguments that might be advanced by the other party in the substantive proceedings, and to canvass those points at the ex parte stage. All that Creedon J. was told in relation to the interim care order granted by the District Court was that it had been made pursuant to Article 20 of the Regulation. It is true that those orders are stated to be made pursuant to applications made under s. 17 of the Childcare Act 1991, but in applying for protective orders of the kind referred to in Article 20 of the Regulation, the CFA could only do so by availing of one of its powers under domestic legislation. There is no reason to doubt that the respondent believed that the CFA was applying, on its behalf, for anything other than protective orders under Article 20 of the Regulation, which is clearly referred to on the face of the District Court orders. I doubt very much if the disclosure of the fact that these orders were made on consent and without prejudice would have made any difference to the decision of Creedon J. I think it is highly unlikely that, had this information been forthcoming, she would have arrived at a conclusion that the order made by the District Court in Gorey was one that was irreconcilable with the return order for the purposes of sub-Article 23(f) of the Regulation. It is far more likely that she would simply have looked at the District Court orders, and, having observed the reference to Article 20 of the Regulation, concluded that those orders were made as short term protective orders, as contemplated by Article 20. So therefore the fact that this background to the making of the interim care order by Gorey District Court was not opened Creedon J., does not, in my view, constitute a failure to disclose material information to the Court.
52. In relation to R.E., it is argued that Creedon J. was not informed that the respondent was seeking to obtain the return of R.E. with the intention of having R.E. adopted. Had Creedon J. been aware of that, she would have been obliged to refuse the return order in relation to R.E., because the Regulation does not apply to decisions on adoptive or measures preparatory to adoption, by reason of sub-Article 3(b) of the Regulation. In response to this, Mr. Hadley avers that "nothing could be further from the truth in terms of the claim regarding adoption". He avers that although the care plan of the respondent was to seek a placement order with a plan for adoption in respect of R.E., the final decision as to whether this plan would be acted on a matter for the Court. At paras. 6 to 8 of his affidavit, he avers:-
"6. It has been stated by the parents in various affidavits and submissions to the court that Hampshire County Council had always intended to place [R.E.] for adoption and this would be the only conclusion to the care proceedings. This is simply not true. I say that Hampshire County Council only make the decision to place a child outside its birth family following comprehensive assessment of both parents, as well as any extended family members put forward who might care for the child instead of the parents during the child's majority (sic).
7. A care plan of adoption is always the last option when there is simply ‘no other option which will do'. This decision is such a significant decision that, although I make the initial decision, my decision is scrutinised by the ADM [Agency Decision Maker] as an independent check to ensure that nothing has been overlooked. However, I do say that where there is the possibility that one of the outcomes of proceedings might be adoption, then Hampshire County Council are quite rightly obliged to make this clear to the parents, the children's guardian and the court from the outset of proceedings and this was the case for [R.E.]
8. This does not mean that the local authority works single-mindedly towards that outcome. It means that everyone has the opportunity to acknowledge it is a possibility so that the parents are not taken by surprise if they fail to engage in proceedings, or assessments are negative, and the only care plan can be adoption."
53. Later in his affidavit, Mr. Hadley avers, at para. 79:- "At the time [R.E.] was returned to England, Hampshire County Council were actively engaging in assessing extended family members to care for him and this would always have been far more preferable than placing a child for adoption. [R.E.] was removed from the English jurisdiction at the very start of his care proceedings, which by statute need to conclude within 26 weeks from commencement. It was far from certain that adoption would be the outcome of these proceedings for [R.E.] and all options were properly being considered under the court timetable put in place by HHJ Black on 6th September, 2017…The decision to seek a placement order was not made until 1st December, 2017, as evidenced by the exhibit RH1. I say that it is simply not true that [R.E.] was returned with the sole aim that he would be adopted."
54. There is no reason not to accept the averments of Mr. Hadley in this regard. More than that, it makes sense and is consistent with the treatment of the older children, E.W. and M.D. who were not put forward for adoption. At the time of the Return Order, and at the time of the hearing before Creedon J. there is every reason to believe that the care proceedings concerning R.E. were at such an early stage that it could not be credibly argued that the Return Order was a measure preparatory to adoption, even though that decision may subsequently have been taken in relation to R.E. It was undoubtedly the case that the respondent had much of the information that it needed to formulate a decision as regards whether or not R.E. should be adopted as of the date of the Return Order, but the process itself had not actually been embarked upon, save insofar as it may be said that by making R.E. a ward of court, or previously, having made him the subject of an interim care order, it could be said that those are steps preparatory to adoption but the reality is that those steps can lead in other directions with different outcomes. I believe it would, in fact, have been inaccurate to inform the Court the Return Order concerning R.E. in any way constituted a decision on adoption, or a measure preparatory to adoption.
55. The final argument relating to the application set aside concerns the allegation that Creedon J. was misled as regards the imposition of a stay on any order that she might make enforcing the Return Order. This allegation is made against the somewhat unusual background that, at the time of the hearing before Creedon J., both the solicitor and counsel for the respondent were simultaneously appearing in Court on behalf of another local authority in the United Kingdom in which this very issue, i.e . whether or not a stay could be placed on an enforcement order made pursuant to Article 28 of the Regulation, was being argued. It is argued that counsel should have informed Creedon J. as to the issues being argued in that other case, in case it informed her decision as regards a stay.
56. The other case being relied upon for the purpose of this argument was one at hearing before Humphreys J. at the time. Counsel did, in fact, refer to this case in the course of his submissions to Creedon J. He stated:-
"Execution may be stayed, and this is important because the jurisdiction - and this is a matter which has arisen in the case before Mr. Justice Humphreys - the jurisdiction to grant a stay lies not with the court which makes the order, it lies with the Court, this is according to the scheme of the Regulation, it lies with the appeal court and the appeal court in Ireland can only grant a stay, that is on foot of the Regulation, can only grant a stay if an appeal has been lodged in the UK. So the idea is that if you have a problem, you direct it to the UK, if you do not like the fact they are exercising jurisdiction, if you believe that your rights have been infringed, if you believe you should have been heard, all of those complaints are directed to the originating court and that is, I think, entirely in accordance with the architecture of the Regulation. The various other requirements are set out there and I just remind the court that I am stating now that the intention is to execute as I am entitled to do, as the Court of Justice has set out in S.C., the intention is to execute at some stage later today in the event that your lordship makes the order that I am seeking."
57. It has to be said that this is a little bit confusing. But it can hardly be doubted that the overall thrust of what counsel was saying to Creedon J. was that she could not grant a stay on the enforcement order that she was being requested to make. In referring, as he was, to the entitlement of the Court to grant a stay in the event of an appeal, counsel was almost certainly referring to Article 27(1) of the Regulation which states:- "A court of a Member State in which recognition is sought of a judgment given in another Member State may stay the proceedings if an ordinary appeal against the judgment has been lodged."
58. At this point in time, the appellants had not lodged their appeal against the Return Order. They did this on 25th September, 2017. On the face of it, therefore, there was nothing wrong with counsel informing the Court, or at least suggesting to the Court that a stay could not be placed on the enforcement order.
59. But this was far from the full picture. The proceedings at hearing before Humphreys J. involved a number of cases being heard together, the first of which was Bedford Borough Council v. M. & Anor. The decision in all cases was given under the reference [2017] IEHC 583. In para. 19 of that decision, it is recorded that on 22nd August, (2017), Barrett J., having earlier in the day granted ex parte orders recognising orders made by the English Courts, later in the day placed a stay on his order in the light of submissions received from the parents of the child concerned in the meantime. The latter order had the effect of preventing the return of a child to England who would have been returned later on that evening. At para. 25 of his judgment, Humphreys J. records that the applicants in those proceedings then brought habeas corpus proceedings seeking the release of the child. As I mentioned above, there were a number of different proceedings involved, and Humphreys J. records that he stayed the removal of the child from the State pending the determination of all proceedings. That this second order of a stay was made prior to the hearing before Creedon J. is apparent from the following paragraph, i.e. para. 26 of the judgment of Humphreys J., which records that the matter was heard at some length before him on 19th and 20th September, 2017. All of that being the case, both the solicitor and counsel for the respondent in this case, who were also solicitor and counsel for Bedford Borough Council, must surely have been aware of the orders made by Barrett J. and Humphreys J. imposing a stay upon the recognition and enforcement order of Barrett J. Even though they may well have disagreed with those decisions, and considered that they might not be correct in law, the legal representatives for the respondent had a duty to inform Creedon J., at a minimum, that the matter was not free from doubt. (In passing I should observe that the CJEU later held in answer to one of the questions referred to it by the Court of Appeal in these proceedings that such a jurisdiction - to grant a stay prior to execution of the enforcement order - does exist, and that the appellants were deprived of their right to seek a stay by reason of the immediate removal of the children from the State, before service of the order of Creedon J. See paras. 72-79 of the decision of the CJEU ( Hampshire County Council v. C.E. and N.E. (Joined Cases C-325/18 PPU and C-375/18 PPU) ECLI:EU:C:2018:739). It hardly needs to be said that had Creedon J. been informed of the orders made by both Barrett J. and Humphreys J. in the Bedford case, she might well have placed a stay on the enforcement order that she was making, and had that occurred, it is very likely that the course of this litigation would have been very different. Whether or not the result would have been the same is another matter, but the course of the litigation itself would certainly have been different.
60. I should add at this juncture that this case was heard over three days. It was initially listed for two days, and when the matter did not conclude at the end of the second day, it was not possible to schedule the resumed hearing for another week. At the conclusion of the second day, therefore, in light of the arguments made as to what should have been disclosed by counsel to Creedon J., I gave liberty to the solicitors and counsel acting on behalf of the respondent to file any affidavits that they might wish to file I order or to address the arguments being made. They chose not to do so.
61. However, while the failure to disclose that orders imposing a stay on the enforcement of a recognition order had been made in the Bedford proceedings was highly relevant and was not just material but critical to the imminent return of the children to England, was it of relevance to the Court's consideration as to whether or not to make orders of recognition and enforcement in the first place? It can hardly be said that those orders should be set aside on the grounds that the Court was not fully apprised of its jurisdiction to place a stay on those orders. Somewhat paradoxically, therefore, while the fact that a court was not informed, or was possibly even misinformed as to its jurisdiction to impose a stay, it does not seem to me that this can be relied upon to support an argument to set aside the recognition and enforcement orders themselves.
62. It follows from the above that the appellants have been successful with one of the arguments advanced, that relating to the information provided to the Court as regards the service of the proceedings in England upon the appellants. As I have already said, that information was deficient and had it been otherwise, the result of the application before Creedon J. might have been different. But the respondent also argues that the application to set aside should be refused on grounds of delay. The delay in bringing the application is of the order of 14 months. The response to this argument is that the appellants did not have adequate information with which to advance this application until they received the DAR transcript which was produced, at the direction of the Court of Appeal, late last year, following which the application was brought without delay. Unfortunately, it is not clear precisely when the DAR transcript was produced, but in any case I do not think this argument withstands scrutiny. In relation to the point in respect of which they have been successful, the appellants at all times had in their possession the information that they needed to advance an application to set aside. They knew they were not in Court when the Return Order was made. They knew that they had not received personal service of the application for wardship. They knew that they had not authorised their solicitors to accept service. They had legal representation in England through which they appealed, unsuccessfully, the Return Order. It is not clear from when they had legal representation in this jurisdiction, but since they filed an appeal from the order of Creedon J. on 24th November, 2017, they clearly had representation from some time before that date. By this time, they also had in their possession a copy of the proceedings grounding the application before Creedon J., including the affidavit of Mr. McGrath.
63. For these reasons, I consider that the appellants did have sufficient information at their disposal to enable them to advance an application to set aside the order of Creedon J., probably no later than the time that they filed the appeal against that same order. While it follows from what I have said above that they did not have all the information that they were able to rely upon at the hearing of this application, until the DAR transcript became available, it is my view that they had sufficient information at that point in time to bring forward an application to set aside the order of Creedon J. with some confidence.
64. But is the delay a sufficient reason to refuse this application which would otherwise succeed? The appellants were moving on other fronts. They brought an appeal against the Return Order in England. They lodged an appeal against the order of Creedon J. All matters were, therefore, placed in issue in both jurisdictions, within time. There is, therefore, no question of any prejudice to the respondent. The question as to what might be in the best interests of the children was not addressed at all, and it would be purely speculative on my part to enter into a consideration of that issue.
65. It seems to me that in considering the issue, the Court needs to consider the relative culpability of the parties. I consider that the failure to provide Creedon J., with all the information that should have been provided to her in her consideration of the application before her was a far more serious matter than the failure to advance the application to set aside her order in a timely manner. Had Creedon J. been provided with all the information that should have been provided to her, she might well have declined to make an order recognising and enforcing the Return Order. Alternatively, she might have made an order but placed a stay on the execution of that order pending notification to the appellants, who would have an entitlement to apply for a stay pursuant to Article 27 of the Regulation provided that they appealed the Return Order, which they subsequently did. They were also deprived of their entitlement to apply to the Court to stay these proceedings pursuant to Article 35 of the Regulation. The effect of all of this was that the children were moved from this jurisdiction prematurely, before the appellants had any opportunity to avail of entitlements expressly conferred by the Regulation. In contrast the effect on the respondent, or for that matter on the children, of the delay in advancing this application is negligible, in circumstances where the appellants lodged an appeal against the order of Creedon J. in time, and the two applications are being heard together. For all of these reasons, I am fully satisfied that, notwithstanding the delay on the part of the appellants in bringing forward this application, this Court should exercise its discretion in favour of the appellants and set aside the order of Creedon J., because of the failure on the part of the respondent to make full disclosure to the Court of information that was material to the Court's consideration of the application before it.
Appeal from Order of Creedon J.
66. It is not disputed that compliance with Article 23 of the Regulation is mandatory. If any of the matters arising in Article 23 of the Regulation are established as having occurred, as a matter of fact, then the Return Order must not be recognised. In this case, the appellants rely on sub-articles 23(b), (c), (d) and (e), and also Article 37(2) of the Regulation.
67. The appellants submit that sub-article 23(b) of the Regulation is engaged because the Return Order was made without any of the children being given an opportunity to be heard. In response to this, the respondent says that, firstly, this was a matter of urgency, which is an exception under sub-article (b). Secondly, it is submitted that the children were, in any event, given an opportunity to be heard. The children were represented by their own solicitor on the day on which the Return Order was made and the court appointed guardian ad litem was in attendance. Both supported the making of the Return Order. It is submitted that when considering the "voice of the child" in cases involving children as young as the children involved in this case, it is entirely appropriate that they are heard through their guardian.
68. In reply to this submission, the appellants submit that neither the solicitor concerned nor the guardian ad litem had ever met the children or attended at their home and that accordingly, it is not be the case that they could in any meaningful way articulate the wishes of the children.
69. On this point, I find in favour of the respondent. The children in this case are clearly too young to be heard in their own right. They can only be heard through a representative. The representatives consented to the making of the Return Order. They may not have met with the children or seen their home, but they would have had the benefit of all the documentation before the Court. Generally speaking, that might not be sufficient in itself, but I also agree with the submission on behalf of the respondent that this was properly viewed as matter of urgency by the respondent, having regard, inter alia , to the conclusions of the report of the psychologist to which I referred at para. 6 above, and urgency is an exception to the application of sub-article 23(b) of the Regulation.
70. Sub-article 23(c) of the Regulation is clearly engaged. It was accepted at the hearing of these applications that judgment was given in default of appearance, this in turn, engages Article 37 of the Regulation. As far as Article 37 of the Regulation is concerned, no document was provided to the Court which established "that the defaulting party was served with the document instituting the proceedings or with an equivalent document". The respondent relies on the attempted service of the proceedings upon the solicitors for each of the appellants, who had, up until that point in time, represented the appellants in the care proceedings. It further relies upon the deliberate actions of the appellants in leaving the United Kingdom in breach of court orders relating to the two older children, and in circumstances where they had signed an agreement relating to the youngest child, R.E. Counsel for the respondent urges, therefore, that this Court in considering service, should look at those background facts.
71. In a way, what counsel for the respondent is asking this Court to do is to deem service good, although that is not a function of this Court, on an appeal such as this; that only be the function of the Court that made the Return Order i.e. the High Court in Portsmouth. No evidence was placed before this Court to demonstrate that this issue was raised, discussed and adjudicated upon by that Court.
72. Both parties referred me to authorities of the CJEU in relation to service. The most helpful of these of these authorities, are the cases of Klomps v. Michel , (Case 166/80) [1981] ECR 1593 and Debaecker v. Bouwman , (Case 49/84) [1985] ECR 1779. In Klomps , the plaintiff (Mr. Michel) had obtained judgment against Mr. Klomps in summary proceedings in Germany, and had subsequently obtained an enforcement order arising out of that judgment. The proceedings and subsequent enforcement order had been served in accordance with German law, but some six months later, Mr. Klomps raised an objection maintaining that, when the documents were served, his habitual residence was in the Netherlands and not in Germany.
73. A number of procedural questions were referred to the Court in the context of Article 27(2) of the Convention of 27 September 1968 On Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, which was the equivalent provision in that convention of sub-article 23(c) of the Regulation. One of those questions was to the following effect: where the court that granted judgment was satisfied that service had been duly effected, does Article 27(2), require that a separate examination be carried out into the question whether the document was served in sufficient time to enable the defendant to arrange for his defence? If so, is that examination then confined to the question whether the document reached the defendant's habitual residence in good time or must, for example, the question also be examined whether service at that residence was sufficient to ensure that the document would reach the defendant personally in good time?
74. In addressing this question, the Court stated, at para. 19, pp. 1608 to 1609:-
"In this connection it must be stated first of all that Article 27, point 2, does not require proof that the document which instituted the proceedings was actually brought to the knowledge of the defendant. Having regard to the exceptional nature of the grounds for refusing enforcement and to the fact that the laws of the Contracting States on the service of court documents, like the international conventions on this subject, have as their objective the safeguarding of the interests of defendants, the court in which enforcement is sought is ordinarily justified in considering that, following due service, the defendant is able to take steps to defend his interests as soon as the document has been served on him at his habitual residence or elsewhere. As a general rule the court in which enforcement is sought may accordingly confine its examination to ascertaining whether the period reckoned from the date on which service was duly effected allowed the defendant sufficient time to arrange for his defence. Nevertheless the court must consider whether, in a particular case, there are exceptional circumstances which warrant the conclusion that, although service was duly effected, it was, however, inadequate for the purposes of enabling the defendant to take steps to arrange for his defence and, accordingly, could not cause the time stipulated by Article 27, point 2, to begin to run."
75. It is clear from this passage that the Court places greater emphasis on the requirement that a defendant should have sufficient time to arrange for his defence, than on technical compliance with service requirements. It may be observed that in this case, there was not even technical compliance with service requirements in accordance with the laws of England.
76. The case of Debaecker is of particular interest because in that case, one of the questions posed to the Court was whether the fact that the defendant was responsible for the failure of the duly served document to reach him prevents the Court, where, for example, the plaintiff was aware that the defendant had left the address stated to be his place of residence, from considering that further steps to inform the defendant of the impending action should be taken? The question resonates with the circumstances of this case: the appellants themselves created the circumstances that gave rise to difficulties in service of the documentation but the respondent was aware, by the time the wardship application was moved before the High Court in Portsmouth, that the appellants were in Ireland, and if not already aware of the appellant's address, must have known that it could quickly be obtained through the CFA.
77. In answer to this question, the Court held at para. 27:-
"However, the Convention does not impose on the plaintiff any obligation to take steps such as those referred to in Question 2(b). The failure to take such steps is in reality merely a factor which must be taken into account in order to establish whether service was effected in sufficient time."
(In question 2(b) the Court was asked "Can the plaintiff be required as a result of circumstances which arose after service was effected, in particular notification to the plaintiff of the defendant's address, to take further steps to inform the defendant of the impending action, so that if such steps are not taken the time required by Article 27(2) does not begin to run?")
78. Then, at para. 31, the Court stated:- "In view of the fact that Article 27(2), as has already been stated, seeks to enable a defendant to defend himself effectively, the defendant's behaviour may not be used as a basis for considering that service was effected in sufficient time even though the plaintiff subsequently became aware that the defendant could be reached at a new address. To admit such a proposition would be tantamount to acknowledging the existence of a presumption that service was effected in sufficient time. Although it may rightly be presumed that service was effected in sufficient time where the plaintiff did not know where to reach the defendant, such a presumption would clearly be contrary to the principle that the defendant's rights should be protected if, after service, the plaintiff learned where the defendant could be reached."
79. Finally, at para. 32, the Court stated:- "It will therefore be for that court to assess, in a case such as the present, to what extent the defendant's behaviour is capable of outweighing the fact that the plaintiff was apprised after service of the defendant's new address."
80. These decisions were referred to and applied by the Court of Appeal in England in the case of Re D (A Child) (International Recognition) [2016] EWCA Civ 12. In his judgment, Ryder L.J. stated, at para. [68]:- "In my judgment, the rights of the defendant have priority so as to displace any findings of the originating court if such is necessary to uphold his/her rights of defence."
81. Later, at para. [72], he stated:- "Consequently, I would hold that a recognising judge is not bound by the originating court's decision on whether or not a judgment was made in default of appearance and is entitled to make his own assessment in that regard."
82. For this reason, the Court considered that the "recognising" Court was not bound by a certificate issued by the originating court pursuant to Article 39 of the Regulation.
83. At para. [81] of his judgment, Ryder L.J. stated:-
"As a result, in order to guard the rights of the defence, it is open to the court called upon to recognise the judgment to conclude, even if this is contrary to the view of the court of origin, that the method of service used was insufficient to start the clock running against a defendant as from the moment of that service and to draw the conclusion that s/he was not served in time or in such a way as to arrange for his defence. Accordingly, it is clear that valid service alone does not satisfy art 23(c), …"
84. Ryder L.J. did consider that the state of knowledge of a defendant is a relevant factor to be taken into account when considering whether a defendant had sufficient time to arrange for his/her defence. He stated that what matters is "not form but function….and the recognising court needs to look at the reality of the situation."
85. This might suggest, as counsel for the respondent urges, that in this case, the reality of the situation is that the appellants themselves orchestrated or were responsible for the situation whereby they could not be served with court documents and, therefore, that they should not be entitled to rely upon sub-Article 23(c) of the Regulation in the particular circumstances of this case. However, I have difficulty in accepting that argument. As I have said above, by the time the respondent was moving the application before the High Court in Portsmouth, it had had contact with the CFA and was aware that the appellants had travelled to this jurisdiction. It may well even have been aware at this point of the exact address of the appellants, but even if it was not, it was clear that that address was readily ascertainable. It was also clear that in these circumstances, any concerns for the immediate safety of the children would have to be addressed by the respondent through the CFA in this jurisdiction, as occurred when the District Court made interim care orders on 14th September, 2017. In any case, counsel for the respondent accepted that the urgency of the matter was not driven by concerns for the safety of the children but was driven by the other factors, including that the two older children (who have different fathers) were, by the actions of the respondent being removed from the father of one, who is also the father figure for the other.
86. There can hardly be any doubt but that at the time that it moved the application before the High Court in Portsmouth, the respondent knew that it was possible to arrange for service of the proceedings on the appellants in this country with the assistance of either the CFA or the gardaí in this country, and this could have been arranged swiftly and with ease. The respondent deliberately chose not to take this course and in doing so, disentitled the appellants to their opportunity to receive, consider and enter a defence to the proceedings. The reliance by the respondent on the notification to the solicitors who had acted on behalf of the appellants in the care proceedings was hopelessly misplaced. In doing so the respondent effectively took the law into its own hands. Judgment was given in default of appearance and on any analysis the defendants were not served with the documents instituting the proceedings until after the making of the Return Order. I have no doubt at all but that this Court has an obligation to refuse to recognise the Return Order, on these grounds, in accordance with sub-Article 23(c) and Article 37 of the Regulation.
87. It follows from this the Return Order was given in circumstances where the appellants, having parental responsibility for the children, did not have an opportunity to be heard, as required by sub-Article 23(d) of the Regulation, and for this reason also, the appellants are entitled to succeed with their appeal.
88. Having regard to these conclusions, it is not necessary for me to address the final argument advanced on behalf of the appellants that the Return Order is irreconcilable with a later judgment relating to parental responsibility i.e. the interim care order made by the District Court in Wexford.
89. In arriving at these conclusions I have had due regard to the fact that the appellants, by their own admission were seeking to evade the respondent, and as a childcare authority it can hardly be doubted that the respondent had a duty to the children to act swiftly to ensure their safety and take whatever measures they considered to be in the best interests of the children, within the parameters of the law. It is not difficult to understand the concern and frustration those in the respondent organisation who were dealing with this matter must have felt when they discovered the appellants had absconded with the children. But the application to the High Court in Portsmouth was not required for the purpose of securing the immediate safety of the children. That was separately secured with the assistance of the CFA. The requirements for obtaining an order that a party wishes to have recognised and enforced pursuant to the Regulation are clear, and if any of the circumstances identified in Article 23 of the Regulation obtain, then the Regulation unambiguously mandates that the order concerned must not be recognised. All of this is for very good reason, which requires no elaboration here. It has already been set out in the decisions of the CJEU to which I have referred (and also other decisions of that Court) and the decisions of the Court of Appeal in this matter, as well as the Court of Appeal in England and Wales, in Re D . Shortcuts are not permissible, no matter how frustrating and inconvenient this may be to the applicant who wishes to have a judgment recognised and enforced.
