Judgment: 2019-03-05 · Court archive

High Court rules father missed deadline to seek Irish custody hearing after Greece non-return decision

The court held that the father received enough documents on 9 August 2018 to start the three-month period under Article 11 of the Brussels II Regulation. He made no submission or motion before it expired.

High Court · [2019] IEHC 238

Who, what, where, when and why

Who

See the report below for the parties involved.

What

The court held that the father received enough documents on 9 August 2018 to start the three-month period under Article 11 of the Brussels II Regulation. He made no submission or motion before it expired.

Where

Places mentioned in the report

  • Ireland
  • Greece
  • Athens
When

Judgment:

Other dates in the report
  • 9 August 2018

    The High Court ruled that a father was outside the time limit to ask an Irish court to examine custody of his child after a Greek court refused to order the child’s return to Ireland. Ms Justice Ní Raifeartaigh held that the three-month period began when he was served with the Greek appellate judgment and a social services report on 9 August 2018.

Why

Reasons reported in the judgment

The High Court ruled that a father was outside the time limit to ask an Irish court to examine custody of his child after a Greek court refused to order the child’s return to Ireland. Ms Justice Ní Raifeartaigh held that the three-month period began when he was served with the Greek appellate judgment and a social services report on 9 August 2018.

The High Court ruled that a father was outside the time limit to ask an Irish court to examine custody of his child after a Greek court refused to order the child’s return to Ireland. Ms Justice Ní Raifeartaigh held that the three-month period began when he was served with the Greek appellate judgment and a social services report on 9 August 2018.

The ruling concerns the procedure under Article 11(6) to (8) of Council Regulation (EC) 2201/2003, following a non-return decision under the Hague Convention. The judge explained that the procedure can lead to a full custody hearing in the child’s state of habitual residence before removal. The question before her was narrower: whether the father had received the relevant documents needed to start the period for making submissions.

The child had been taken from Ireland to Greece in May 2013. In June 2015, a Greek first-instance court ordered that the child would not be returned. The Athens Court of Appeal dismissed the father’s appeal and upheld that decision on 1 September 2017. The child had been habitually resident in Ireland before the removal, which the judgment describes as wrongful.

In Ireland, the parents were served on 9 August 2018 after the High Court gave directions for notification and invited submissions under Article 11(7). The Minister’s counsel argued that the three months ran from that date. The father’s counsel argued that time had not started because he had not received transcripts of the Greek hearings or information about the evidence.

The judge accepted that a later custody hearing could require further material, including evidence from the earlier proceedings. But she said the initial notification was the start of the process, and that seeking a full set of documents in every case before inviting submissions could cause delay and impose a disproportionate burden. She interpreted “relevant documents” as documents necessary to understand the non-return decision. A transcript was required only if one existed.

The father had received the Greek appellate judgment and an extensive social work report. In the judge’s view, those documents explained the basis of the decision sufficiently for him to decide whether to ask the Irish court to examine custody. She distinguished an earlier Court of Appeal case concerning an ex parte decision and an appeal, where the parents had not known the decision’s basis.

The court concluded that the deadline expired three months after 9 August 2018. The father had made no submissions and served no motion within that period. The ruling determined that he was out of time under Article 11; it did not decide the underlying custody dispute or order the child’s return.

Read the original court judgment

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