The Court of Appeal has dismissed an appeal by C.E. and N.E. seeking orders to bring three children from England to Ireland after an earlier Irish order recognising an English return order was set aside.
In a judgment delivered on 9 April 2020, Ms Justice Máire Whelan, with whom Justices Costello and Noonan agreed, upheld the High Court’s refusal to order the children’s return or to ask the English courts to transfer proceedings to Ireland. The appeal concerned consequential relief following the High Court’s April 2019 decision setting aside the 2017 recognition order. It did not determine a new care or custody application.
The parents, UK nationals, had brought the children to Ireland in September 2017. Interim care orders were already in place for the two older children in England, and the local authority had indicated it intended to seek an order concerning the newborn. The Irish Child and Family Agency later obtained interim care orders, with the parents’ consent, and the children were placed in care. An English return order was recognised in Ireland on an ex parte application and enforced before the parents were served.
In April 2019, the High Court set aside that recognition order because the parents had not had an opportunity to be heard, as required by the relevant EU regulation. That decision was not appealed. The parents then sought, among other relief, the children’s return and transfer of any relevant English proceedings.
The Court of Appeal agreed that the children had remained habitually resident in England. The older children had lived there before their brief stay in Ireland, were subject to English care orders and had spent only just over two weeks in Ireland. The youngest child, R., had been in Ireland for 16 days. Although his parents intended to settle there, the court found that the disruption and short, precarious stay meant his habitual residence had not changed from England.
The court acknowledged that the local authority’s conduct was “egregious” and “in no way condoned”. But it held that returning the children would uproot them from established care and surroundings, and would not provide an effective remedy. The children’s welfare and the English courts’ role in deciding parental responsibility weighed against the orders sought.
The court also rejected a transfer under Article 15 of the regulation. Ireland met the test for a particular connection because the parents lived here, but they had not shown that Irish courts were better placed to hear the relevant matters or that transfer would serve the children’s best interests. The court said no proceedings concerning the older children were shown to be ongoing, while adoption preparations for R. fell outside the regulation’s transfer provisions.
The appeal was dismissed. The court said the parents remained entitled to bring proceedings in England and Wales concerning the children and should face no impediment to participating in them.