Judgment: 2018-05-17 · Court archive

Court of Appeal refers child-return and appeal-deadline questions to EU court

The parents’ appeal over enforcement of an English return order was adjourned pending answers from the Court of Justice of the EU. The Irish court also condemned the children’s transfer before the parents were served.

Court of Appeal · [2018] IECA 154

Who, what, where, when and why

Who
  • Hampshire County Council (Applicant)
  • Child and Family Agency
  • Gerard Hogan (Judge)
What

The parents’ appeal over enforcement of an English return order was adjourned pending answers from the Court of Justice of the EU. The Irish court also condemned the children’s transfer before the parents were served.

Where

Places mentioned in the report

  • Rosslare Ferry Port
  • Ireland
  • Hampshire County Council
  • Rosslare
When

Judgment:

Other dates in the report
  • 8 September 2017

    The case concerns an order made by the English High Court on 8 September 2017, placing the children in wardship and directing their return to England and Wales. The order was recognised and declared enforceable in Ireland by the High Court on 21 September. That afternoon, the children were handed over by the Child and Family Agency (CFA) to Hampshire County Council social workers at Rosslare Ferry Port and taken to the UK. Their parents were told only after they had left Ireland and were served with the Irish enforcement order the following day.

Why

Reasons reported in the judgment

The parents’ appeal against the Irish enforcement order was lodged two days beyond the applicable two-month deadline. The High Court held that it had no jurisdiction to extend time. In the Court of Appeal, Mr Justice Gerard Hogan said the parents had arguable grounds to challenge enforcement, including whether using the Brussels II bis Regulation bypassed safeguards under the Hague Convention. He also found that, under Irish procedural law, he would have been disposed to extend time given the brief delay and the case’s gravity. He did not decide whether EU law allowed that extension.

The Court of Appeal has referred questions to the Court of Justice of the European Union about enforcing an English order for three children’s return and whether their parents could appeal after a short delay. It adjourned the appeal pending the EU court’s response and proposed asking for the reference to be treated as urgent.

The case concerns an order made by the English High Court on 8 September 2017, placing the children in wardship and directing their return to England and Wales. The order was recognised and declared enforceable in Ireland by the High Court on 21 September. That afternoon, the children were handed over by the Child and Family Agency (CFA) to Hampshire County Council social workers at Rosslare Ferry Port and taken to the UK. Their parents were told only after they had left Ireland and were served with the Irish enforcement order the following day.

The parents’ appeal against the Irish enforcement order was lodged two days beyond the applicable two-month deadline. The High Court held that it had no jurisdiction to extend time. In the Court of Appeal, Mr Justice Gerard Hogan said the parents had arguable grounds to challenge enforcement, including whether using the Brussels II bis Regulation bypassed safeguards under the Hague Convention. He also found that, under Irish procedural law, he would have been disposed to extend time given the brief delay and the case’s gravity. He did not decide whether EU law allowed that extension.

The court was sharply critical of the transfer before service. Hogan said the parents had been deprived of a meaningful opportunity to seek a stay and challenge enforcement. He described the practice of removing children after an ex parte enforcement order but before service as unlawful and said it must stop. The judgment records that CFA visits to the family’s Irish residence found nothing of concern; earlier welfare concerns had been reported by Hampshire social services.

The EU court was asked whether a public authority can use the Regulation’s enforcement process for a return order made after alleged wrongful removal, or whether that circumvents the Hague Convention. Further questions concern the power to extend the appeal deadline and whether removing children before service compromised the parents’ procedural rights.

The Court of Appeal varied the High Court order’s reporting restrictions so they rested on section 45(1) of the Courts (Supplemental Provisions) Act 1961, rather than common law. It adjourned the appeal’s outcome until the EU court responds. The judgment notes that Hampshire was proceeding with adoption proceedings in the UK, which could lead to the parents losing parental rights.

Read the original court judgment

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