The High Court set aside an order recognising and enforcing an English child-return order, then allowed the parents’ appeal against that order. Mr Justice Binchy ruled that the parents had not been served with the proceedings in sufficient time to arrange a defence, so the English order could not be recognised in Ireland under the applicable EU regulation.
The applications concerned three children, identified in the judgment only by initials. Hampshire County Council had obtained a return order from the High Court in Portsmouth on 8 September 2017. On 21 September, the Irish High Court made an ex parte order recognising and enforcing it. The children were returned to England that day, before the Irish order was served on the parents.
The parents sought to set aside the Irish order and appealed it under Article 33 of the regulation. The set-aside application alleged that the council had not given the judge a full account of how the English proceedings were notified to the parents. The council said it had urgently sought the children’s return and had notified the parents’ solicitors in England.
Mr Justice Binchy found that the solicitors were contacted only on the morning of the Portsmouth hearing. They replied that they had no instructions to act on the return application; one could not contact the parent she represented. The council knew the family were in Wexford and could have arranged service through Ireland’s Child and Family Agency or the Gardaí. Instead, it relied on notification to the solicitors. The judgment also found that the Irish judge had not been told that the youngest child might have been brought to Ireland before any English court order applied to him.
The judge concluded that these were material omissions that might have affected the ex parte decision. Although the parents had delayed about 14 months in seeking to set it aside, the judge said the council’s failure to disclose the information was more serious and set the order aside.
On the appeal, the court found that the children’s young ages meant they could only be heard through representatives. It accepted the council’s argument that the matter was urgent for the purposes of the regulation’s child-hearing provision. But it also found that the return order had been made in default of appearance and that no document showed the parents had been served with the proceedings before the order was made. The court therefore refused recognition under Article 23(c), and also found the parents had not had an opportunity to be heard as required by Article 23(d).
The court allowed the appeal on those grounds. It did not decide the parents’ separate argument that the return order conflicted with a later Irish interim care order, saying that was unnecessary in light of its conclusions.