The High Court has refused the mother’s application to set aside an order re-entering proceedings brought by the father under the Hague Convention concerning their two sons. The court did not decide the underlying return application in this judgment; it said the mother could fully defend those proceedings.
The application concerned an order made on 17 November 2011 by Mr Justice Irvine, following an ex parte application by the father, which re-entered the case and joined the Health Service Executive as a notice party. The mother sought to have that order set aside.
Mr Justice Finlay Geoghegan found that a material fact had not been disclosed to Mr Justice Irvine: the summons had been served on the mother in January 2011. It was a later order directing her to attend court that the applicant’s solicitors had been unable to serve. The judge’s finding proceeded on the assumption that Mr Justice Irvine may have understood the summons itself had not been served; she said it was unclear whether he had, as the papers provided to him included references to service.
The omission was described as inadvertent. The solicitor who swore the November affidavit said she had relied on the wording of an earlier court order and apologised for the mistake. Mr Justice Finlay Geoghegan said the fact omitted had limited materiality to the November application. The earlier proceedings had been struck out in May 2011 with liberty to re-enter because the mother and boys could not be located and it was unclear whether they remained in Ireland. By November, the boys were in Ireland and in HSE care.
The judge said the purpose of the May order was to allow the case to be re-entered if the boys were found in Ireland. She concluded that the mother did not need to be put on notice of the re-entry application and that the father was entitled to have the proceedings re-entered, with the mother entitled to defend them.
The court therefore refused the application to set aside the 17 November order. It said the boys’ proceedings should be brought forward and determined as soon as consistent with fair procedures. No decision on whether the boys should be returned to England and Wales was made in this judgment.