The High Court has discharged an order that had been used to remove two children from Ireland to another EU member state before their mother had an opportunity to challenge it in court.
Mr Justice Max Barrett, delivering judgment on 17 November 2020, allowed an appeal against an order made ex parte by the Master of the High Court on 1 May 2019. The Master had declared a foreign court order enforceable in Ireland and directed that the father could request Garda assistance in securing the children’s return and travel documents.
The parents are identified in the judgment only as R and W. The children had been living with their mother in Ireland for several years. The father had obtained an enforcement order in another EU member state requiring the mother to establish a home with the children there or in a specified UK city. The Irish court noted that this foreign order directed the mother to act; on its face, it did not authorise the father to remove the children from her care without her consent.
The father attended the children’s school with his solicitor on 2 May 2019. Gardaí also attended, and the father took the children from the school to a hotel. The next day, the mother sought a stay of the Master’s order. A High Court judge indicated a stay would be granted pending a hearing, but the father had already left Ireland with the children, according to the judgment.
Mr Justice Barrett found that the Master’s order omitted mandatory information, including the appeal period and notices about enforcement and the possibility of a stay. The judgment also found no evidence that the required notice of enforcement, with full particulars and supporting information, had been served on the mother. Showing her a copy of the order did not satisfy the service requirements.
The court held that the order had been made enforceable without restricting enforcement until proper service and an effective opportunity to challenge it. It also found that the Master had included a direction concerning Garda assistance despite lacking power to make the relevant protective measures. The judgment said the children’s removal before proper service compromised the mother’s constitutional and EU rights to fair procedures and an effective remedy.
The court did not decide whether the mother would have succeeded in challenging enforcement of the foreign order. It allowed her appeal and discharged the Master’s order. The judgment described possible systemic improvements, including clearer guidance and revising the standard order template; it did not make those suggestions operative orders.