Judgment: 2018-11-28 · Court archive

Court of Appeal rules parents’ challenge to child return orders was lodged in time

The court held that service of an Irish enforcement order was not valid until the parents received the documents setting out the reasons for it. It sent their substantive appeal to the High Court for urgent determination.

Court of Appeal · [2018] IECA 365

Who, what, where, when and why

Who
  • Hampshire County Council (Applicant)
What

The court held that service of an Irish enforcement order was not valid until the parents received the documents setting out the reasons for it. It sent their substantive appeal to the High Court for urgent determination.

Where

Places mentioned in the report

  • Ireland
  • England and Wales
  • Portsmouth
When

Judgment:

Other dates in the report
  • 8 September 2017

    The dispute arose after Hampshire County Council (HCC) obtained orders in Portsmouth on 8 September 2017 making three children wards of court and directing their return to England and Wales. The parents and children had travelled to Ireland on 5 September. On 21 September, the Irish High Court made ex parte orders recognising and enforcing the Portsmouth orders. The children were returned to the United Kingdom that day, before the parents had been served with the Irish order.

Why

Reasons reported in the judgment

The Court of Appeal held that service on 22 September was inadequate to start the clock. It said the order’s brief recitals did not provide the “full particulars” required under the relevant Irish court rules, leaving the parents without the information needed to understand the basis for the decision and consider an appeal. The court found that service could not have been valid before 25 September, when the relevant material was supplied. The 24 November appeal was therefore within time.

The Court of Appeal has ruled that parents’ challenge to Irish orders enforcing English child return orders was lodged within the permitted time. It allowed their appeal against a High Court decision that it had no jurisdiction to extend the deadline and remitted the substantive challenge to the High Court for urgent determination.

The dispute arose after Hampshire County Council (HCC) obtained orders in Portsmouth on 8 September 2017 making three children wards of court and directing their return to England and Wales. The parents and children had travelled to Ireland on 5 September. On 21 September, the Irish High Court made ex parte orders recognising and enforcing the Portsmouth orders. The children were returned to the United Kingdom that day, before the parents had been served with the Irish order.

The parents received a copy of the Irish order and notice of enforcement on 22 September. HCC did not provide the supporting material relied on to obtain the order until 25 September. That material included the application, an affidavit and exhibits comprising more than 90 pages.

The parents filed their appeal on 24 November. HCC argued that the two-month appeal period had begun on 22 September and that the appeal was late. The High Court accepted that position in January 2018 and ruled it had no power to extend the deadline. On appeal, the parents argued that time began only when they received the supporting documents.

The Court of Appeal held that service on 22 September was inadequate to start the clock. It said the order’s brief recitals did not provide the “full particulars” required under the relevant Irish court rules, leaving the parents without the information needed to understand the basis for the decision and consider an appeal. The court found that service could not have been valid before 25 September, when the relevant material was supplied. The 24 November appeal was therefore within time.

The Court of Appeal’s ruling followed a European Union Court of Justice decision that the appeal period in the applicable regulation could not be extended by a court. The Irish appeal court distinguished that issue from the question before it: when valid service occurred. The EU court had also ruled that enforcing the return order before serving it on the parents breached their right to an effective remedy, and that protective injunctions against a public body in another member state were not precluded.

The Court of Appeal did not decide the parents’ substantive challenge to recognition and enforcement, or whether the English orders concerning the youngest child fell outside the regulation. It directed the High Court to determine the substantive appeal urgently, with priority. Any application for interim relief was left to that court.

Read the original court judgment

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