The Court of Appeal has deferred a decision on whether to restrain Hampshire County Council from arranging the adoption of a newborn child, pending an answer from the Court of Justice of the European Union on the Irish court’s power to make such an order.
In a judgment delivered on 7 June 2018, Mr Justice Gerard Hogan said the parents had applied on notice for an interlocutory injunction against the council. Hampshire told the court it proposed to proceed with adoption only for the newborn, identified as R. It said the two older children were in the care of their father, subject to English care orders, and that it had no plan to seek their adoption.
The application followed an earlier Court of Appeal judgment and a reference to the EU court concerning the parents’ attempt to appeal an Irish High Court order enforcing an English order for the children’s return. The children had been returned to the United Kingdom in September 2017, before the parents were served with the Irish enforcement order. The parents’ appeal against the English order had been refused permission; their later Irish appeal was found by the High Court to be two days out of time. The parents appealed that decision, and the Court of Appeal referred questions about the EU regulation to the EU court.
The judgment recounts that the English care proceedings arose amid concerns raised by Hampshire social services, including home hygiene, parental capacity, domestic violence in previous relationships, substance abuse and an injury to one child. The Irish Child and Family Agency reported that it found nothing of concern during its home visit or subsequent visits. These were background matters, not findings made in this judgment about the allegations.
Justice Hogan said an injunction could protect the parties’ positions while the court determined whether the English return order was entitled to recognition and enforcement in Ireland. He considered the proposed relief appropriate in light of the council’s non-participation in the appeal, the legal issues already referred and the potential irreversibility of adoption. However, the Attorney General submitted that EU law might prohibit the injunction as an anti-suit measure. The judge said the issue was not clear-cut, including because EU rules exclude adoption decisions and preparatory measures from their scope.
The Court of Appeal did not grant or refuse the injunction. It referred a further question to the EU court about whether EU law permits an Irish court to issue an in-personam protective injunction against a public body in another member state to prevent it arranging adoption proceedings. The court adjourned the injunction application until the response and proposed asking for the reference to be treated as urgent if the EU court considered that appropriate.