Court of Appeal adjourns appeal on Brussels II bis enforcement to refer questions to CJEU regarding time extension.

THE COURT OF APPEAL

Neutral Citation Number: [2018] IECA 154

Record No. 2018/68

Peart J.

Hogan J.

Mahon J.

IN THE MATTER OF CHAPTER III OF COUNCIL REGULATION (EC) 2201/2003 AND IN THE MATTER OF FOREIGN PROCEEDINGS

BEARING REFERENCE NO. P017POO941 AND IN THE MATTER OF E. W. A MINOR BORN ON THE 23RD DAY OF AUGUST 2014 AND

IN THE MATTER OF M.D. A MINOR BORN ON THE 26TH DAY OF MAY 2012 AND IN THE MATTER OF R.E. A MINOR BORN ON THE

3RD DAY OF SEPTEMBER 2017

BETWEEN/

HAMPSHIRE COUNTY COUNCIL

APPLICANT /

FIRST RESPONDENT

- AND -

C.E. AND N.E. (OTHERWISE N.C.)

RESPONDENTS/

APPELLANTS

- AND -

CHILD AND FAMILY AGENCY

(BY ORDER) SECOND RESPONDENT

-AND-

THE ATTORNEY GENERAL

AMICUS CURIAE

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 17th day of May 2018

1. This appeal from the decision of the High Court (Reynolds J.) delivered on 18th January 2018 raises difficult and complex questions

regarding the scope and operation of Council Regulation No. 2201/2013 (“the Brussels II bis Regulation”). The background to this

appeal is as follows:

2. The two defendants are U.K. nationals who arrived in this State by ferry on 5th September 2017 with three young children, one of

whom had been born in the U.K. just two days previously. Ms. E. is the mother of all three children whereas Mr. E. is the father of the

newborn child. The two oldest children were the subject of interim care orders which had been made in the United Kingdom prior to

the arrival of the children in this State. Purely for reasons of convenience I shall describe them in this judgment as “the parents”,

even though Mr. E. is not actually the father of the two older children.

3. On 8th September 2017 the English High Court made an order making all three children wards of court. The order further directed

that the children be returned to the custody of Hampshire County Council. Meanwhile Hampshire County Council (“Hampshire”) had

made contact with its counterparts in the Child and Family Agency (“CFA”) regarding the family. Their location at a particular (named)

address in the State was quickly established by local Gardaí.

4. Concerns had previously been expressed by Hampshire social services regarding this family, including the standards of hygiene

within the home, the parental capacity to manage their children’s behaviour, domestic violence in previous relationships and parental

substance abuse. It also appeared that one of the children, R., had suffered a non-accidental injury and the possibility that Mr. E.

was the perpetrator could not be excluded. It was essentially for these reasons that the children had been taken into care.

5. On the 8th September 2017 Hampshire indicated to the CFA that it intended to seek an order from the English High Court providing

for the return of the children. For its part the CFA indicated that any such orders would need first to be enforced under the Brussels

II bis Regulation. Later that day Hampshire informed the CFA that the requisite orders had indeed been made by the English High

Court.

6. On 11th September 2017 the CFA made an unannounced home visit to the address in the State at which the E. family were now

residing. It is important to state that nothing of concern was found by the CFA during the course of either that visit or on subsequent

visits. The parents informed the CFA that they had been advised to travel to Ireland to avoid the UK social services and to stop

Hampshire taking the children into care. They were advised in turn that the CFA would be applying for an interim care order based on

the concerns and information which had been received from Hampshire’s Children’s Services. A social worker representative of the CFA

advised the parents that Hampshire might apply to have the return order recognised in Ireland by means of an application to the High

Court and that if Hampshire were successful the children would then be returned to the United Kingdom.

7. On the 14th September 2017 the local District Court granted interim care orders in respect of the three children on the application

of the CFA. These orders were expressed to last for a fourteen day period up to the 26th September 2017 and the children were then

placed in foster care accommodation. The parents consented to the making of the interim care orders on a without prejudice basis.

The District Court had before it a report from the CFA which stated that “U.K. Social Services are awaiting a ratification of a recovery

order for the children in the Irish High Court”. Following the making of the interim care order, a care plan meeting was arranged by

members of the CFA with the parents. They were expressly informed that Hampshire County Council intended to have the return order

which had just been made by the English High Court enforced by means of an ex parte application to the High Court and have the

children returned to the United Kingdom in accordance with that order.

8. On 21st September 2017 an order was made by the High Court (Creedon J.) pursuant to Chapter III of the Brussels Regulation II bis

recognising the English High Court order, and ordering that the said order “be enforced in this jurisdiction.” A copy of that order was

forwarded shortly before 3pm that afternoon to the CFA’s solicitors. Those solicitors then immediately forwarded a copy of that order

to the CFA social workers who were dealing with the case.

9. The three children were handed over by representatives of the CFA to social workers attached to Hampshire County Council later

that afternoon at Rosslare Ferry Port and the children were then returned to the United Kingdom in the company of social workers

from Hampshire Social Services. The parents were notified of this development only after the children had left the State and it is

agreed that the Hampshire social workers had expressly requested their CFA counterparts not to contact them because they were

considered to be a flight risk.

10. The parents were then formally served with the ex parte order of the High Court on the following day, 22nd September 2017.

Representatives of the CFA subsequently attended before the District Court on 26th September 2017 and produced a copy of the

order of Creedon J. The interim child care proceedings were then struck out by the District Court. It is, I fear, impossible not to have

the deepest misgivings about the conduct of two public institutions, one British (Hampshire County Council) and one Irish (the CFA),

in this entire matter. I propose to return to the circumstances in which the children were handed over to the custody of Hampshire

County Council social workers later in this judgment.

11. The parents then endeavoured to appeal the order of the English High Court which had been made on 8th September 2017 (and

which was the subject of the enforcement order made by Creedon J. in the High Court) but permission to appeal was refused by the

Court of Appeal of England and Wales on 9th October 2017.

12. On 24th November 2017 the parents filed a notice of motion in the High Court seeking to appeal the order of Creedon J. as

provided for by Ord.42A, r.13 of the Rules of the Superior Courts. On 18th January 2018 Reynolds J. held that the parents were out of

time (by two days) to lodge an appeal and that in view of the provisions of Article 33(5) of Brussels II bis Regulation there was no

jurisdiction to extend time for the purposes of appeal of this kind. The parents have now appealed that decision to this Court.

13. Before considering some of the intricate legal issues which arise in the course of this appeal it is as well to say something about

the parties to the proceedings and their respective intentions. Hampshire County Council remains a party to the proceedings, but

while it was legally represented in the High Court, it has nonetheless elected not to take part in the appeal. The solicitor attached to

the Council who is handling this matter has assured the Court that no discourtesy is intended by this absence, but that the decision

not to participate in the appeal was taken for financial reasons given certain budgetary constraints. The Council has nonetheless filed

legal submissions.

14. The Council’s solicitor has, moreover, indicated in e-mail correspondence with the Court that the Council does not intend to return

the children, irrespective of the outcome of any appeal to this Court. Whatever about the decision not to participate in the appeal,

the Council’s attitude regarding the non-return of the children in the case of a potentially adverse decision from this Court is, to say

the least, unfortunate and regrettable.

15. It is also clear that the Council is proceeding with adoption proceedings in the United Kingdom in respect of the three children

with the result that the parents may lose all parental rights irrevocably in respect of these children. It is this very issue – i.e., the

imminent prospect of the adoption of the children – which has made this case an exceptionally urgent one.

16. When this matter first came before this Court by way of an application for an urgent stay on 28th March 2018, we directed that

the CFA be joined to the proceedings and invited the Agency to participate in the appeal which we then fixed for April 18th, 2018.

The Court took this view because we felt it was necessary to us to be fully apprised of the precise sequence of events surrounding

the transfer of the children. As it happens, the principal social worker from the CFA dealing with the matter filed an affidavit on 17th

April 2018 detailing these events and this affidavit has certainly assisted the Court in obtaining a full understanding of what actually

transpired on 21st September 2018. The CFA ultimately decided not to participate in the appeal, although counsel was instructed to

hold a watching brief. Given, however, the decision by Hampshire County Council not to participate in the appeal and the rather

difficult questions regarding the interpretation of the Brussels II bis Regulation presented by the appeal, the Court considered it

appropriate to invite the Attorney General to appear through counsel on the appeal qua amicus curiae so that the Court would at

least have the benefit of submissions from a legitimus contradictor.

17. The Attorney General very kindly agreed to provide the Court with this assistance and he has appeared through counsel, Mr. Alex

Finn, Barrister-at-law, to make the appropriate submissions. While the Court is very grateful to the Attorney for that assistance, it

was nonetheless unsatisfactory that the principal protagonist in the relevant events – Hampshire County Council – did not see fit to

attend the hearing or to defend its actions.

Reporting restrictions

18. Before proceeding to consider the merits of the arguments centred on the Brussels II bis Regulation, one other (admittedly rather

minor) feature of the High Court order merits attention and should not be overlooked. The order recites that the Court imposed

restrictions on the reporting of any details which might identify the children in question pursuant to “common law.” It should be

observed, however, that there is simply no power at common law to impose reporting restrictions, something which has been the case

for over eighty years. Article 34.1 of the Constitution mandates the open and public administration of justice (including the disclosure

of the identities of the parties) save in such special and limited cases as may be prescribed by law. The word “law” in this context

means either statute law, i.e., in the sense of a statutory power enacted by the Oireachtas (see, e.g., Re R. Ltd. [1989] I.R. 126) or

(exceptionally) the exercise of the inherent power of the Court where this is necessary to protect a constitutional right (see, e.g,

Gilchrist v. Sunday Newspapers Ltd. [2017] IESC 18, [2017] 2 I.R. 284).

19. There is, in fact, a perfectly good statutory power which enables the Court to impose such reporting restrictions regarding the

identity of the children, namely, s. 45(1) of the Courts (Supplemental Provisions) Act 1961. I would accordingly vary the order made

by the High Court by directing that such reporting restrictions be imposed pursuant to s. 45(1) of the 1961 Act in the absence of any

power to impose such restrictions pursuant to common law.

Recognition and enforcement of foreign judgments pursuant to Chapter III of the Brussels II bis Regulation

20. Any consideration of the recognition and enforcement regime provided for under the various Conventions and Regulations

comprised in the wider Brussels/Lugano system discloses a common thread. Various jurisdictional rules govern the assumption of

jurisdiction by the judgment rendering state and these rules are, in particular, designed to avoid the exercise of an exorbitant

jurisdiction by that state. Once, however, judgment is given by that state, it may be enforced in another Member State (or, as the

case may be, a Contracting State) by reference to a simplified procedure which is in turn based on a full faith and credit assumption

by that state that the courts of the judgment rendering state have themselves properly applied the jurisdictional rules provided for

under the Brussels/Lugano system.

21. All of this means that the grounds by which the enforceability of the foreign judgment can be challenged are strictly limited. In

the case of the Brussels II bis Regulation, they are confined to those ground set out in Article 23 so far as judgments involving

parental responsibility are concerned and they include matters such as where the foreign judgment is manifestly contrary to public

policy, due process considerations and irreconcilability with a later judgment.

22. Article 30(1) provides that “the procedure for making the application shall be governed by the law of the Member State of

enforcement.” Order 42A of the Rules of the Superior Courts generally sets out and supplements that procedure.

23. The procedure for enforcement involves an ex parte application in the first instance to the courts of the judgment enforcing

state: see Article 31. As Article 31(1) makes clear, “neither the person against whom enforcement is sought, nor the child shall, at

this stage of the proceedings, be entitled to make any submissions on the application.” (Emphasis supplied) At this stage, however,

given the ex parte nature of the enforcement order, the order is of a necessity a provisional one.

24. In cases involving parental responsibility, the parent or parents against whom the enforcement order has been made may appeal

this decision to the High Court: see Article 33(1). The judgment of Humphreys J. in Bedford Borough Council v. M. [2017] IEHC 583

contains a very illuminating analysis of the difficulties involved in the use of the term “appeal” in this context. He stated:

“….But one then has to confront a semantic hurdle because where the original ex parte order is made by a High Court

judge, the “appeal” under arts. 33 and 68 remains to the High Court. We would conventionally call this a re-hearing on

notice, or perhaps an application to set aside, and would reserve the term “appeal” for an application to a higher court.

But (not for the first time) it must be recognised that words in EU law have autonomous meanings separate from how

they are used in national law, and one must not get distracted by the word “appeal” so as to overlook the fact that the

regulation provides a procedure to challenge the order which can only be invoked before the court specified in the Art. 68

notice. This is the High Court. Therefore what the regulation calls an “appeal” is more akin in practice to an application to

the court on notice to set aside its own order.”

25. I cannot but agree, so that the right of appeal provided in Article 33 might more usefully be regarded as in the nature of an

application to set aside a provisional order made ex parte, albeit confined to the limited grounds specified (in the case of parental

responsibility cases) in Article 23, rather than an “appeal” in the conventional sense of that term. Critically, however, Article 33(5)

provides:

“An appeal against a declaration of enforceability must be lodged within one month of service thereof. If the party against

whom enforcement is sought is habitually resident in a Member State other than that in which the declaration of

enforceability is sought is habitually resident in a Member State other than that in which the declaration of enforceability

was given, the time for appealing shall be two months and shall run from the date of service. No extension of time may be

granted on account of distance.”

26. The proper construction of Article 33(5) - and, specifically, whether there is a power to extend time in favour of the appellant

parents in this case – is at the heart of the present appeal. I propose to return to this critical question very shortly.

Whether the order of the English High Court comes within the scope of the Brussels II bis Regulation

27. Before doing so, however, one preliminary issue must be addressed, namely, whether the order of the English High Court is within

the scope of the Brussels II bis Regulation at all. This is of central importance to the present appeal, because if the English High Court

order does not fall within the scope of the Regulation, the rules regarding recognition and enforcement of that judgment are governed

by our own purely national rules of private international law.

28. Article 1(b) of the Regulation provides that:

“The Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to: …

(b) the attribution, exercise, delegation, restriction or termination of parental responsibility.”

29. Article 1(2) provides that:

“The matters referred to in para 1(b) may, in particular, deal with:-

- the rights of custody and the rights of access;

- guardianship, curatorship and similar institutions;

- the designation and functions of any person or body having charge of the child’s person or property, representing or

assisting the child;

- the placement of the child in a foster family or in institutional care, and

- measures for the protection of the child relating to the administration, conservation or disposal of the child’s property.”

30. It is clear from the existing case-law of the Court of Justice that the concept of parental responsibility must be interpreted

broadly: see Case C-435/06 Re C [2007] E.C.R. I-10141 and Case C-92/12 PPU Health Service Executive v. SC EU:C:2012:255. It is

also clear from the decision in S.C. that the transfer of the right of custody to an administrative authority falls within the scope of the

Regulation.

31. On this basis, therefore, the taking of a child into wardship would seem to fall squarely within the scope of the Regulation. The

exercise by a court of its wardship jurisdiction involves – almost by definition – the exercise of rights in relation to the rearing, welfare

and education of the children that would ordinarily be exercised by the parents: Article 1(2)(a). Such an order could also be regarded

as involving aspects of guardianship and curatorship as well: see Article 1(2)(b).

32. The English order is not, however, confined to wardship but it also involves an order directing the return of the children to the

United Kingdom. The curial part of that order recites that it was ordered that the three children “shall be returned to the jurisdiction

of England and Wales pursuant to the Court’s inherent jurisdiction.” Counsel for the parents, Ms. Jackson S.C., has submitted that the

enforcement of this order amounts to a wrongful by-passing of the inherent safeguards contained in the Hague Convention

procedures envisaged by Article 11 of the Brussels II bis Regulation. Article 11 provides:

“Where a person, institution or other body having rights of custody applies to the competent authorities in a Member

State to deliver a judgment on the basis of the Hague Convention of 25th October 1980 on the Civil Aspects of

International Child Abduction (hereinafter “the 1980 Hague Convention”) in order to obtain the return of a child that has

been wrongfully removed or retained in a Member State other than the Member State where the child has habitually

resident immediately before the wrongful removal or retention, paras. 2 - 8 shall apply.”

33. In contested Hague Convention cases any court hearing an application for return based on a claim of wrongful removal or wrongful

retention of the children would be bound to do so on notice to the parties alleged to have wrongfully removed the children from their

country of habitual residence, i.e., in this instance the parents. Save, possibly, in wholly exceptional circumstances, no court would

order the return of the children on an ex parte basis, at least where (as here) the whereabouts of the parents were known.

34. The grounds, moreover, by which the defendants could resist an application for enforcement via the Chapter III procedure of any

foreign order of this kind in Brussels II bis cases would be strictly limited to those contained in Article 23 of the Regulation, whereas

the grounds of refusal envisaged by, e.g., Article 13(b) of the Hague Convention (namely, the existence of a grave risk that “his or

her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation” or, in the

case of admittedly older children, where they object to returning) might, in certain circumstances at least, amount, if only indirectly,

to a review of the substance of the foreign judgment, something which in non-Hague cases would be contrary to Article 26 of the

Regulation. The range of possible defences to the making of a return order in respect of the children is accordingly rather broader

under the Hague system as compared with Article 23 of the Brussels II bis Regulation.

35. It is precisely for these reasons that it is contended that the enforcement of the English High Court order so far as it concerned

the return of the children via the Chapter III procedure amounts to a wrongful circumvention of Article 11 of the Regulation and, by

extension, of the entire Hague system.

36. The present case accordingly raises an important and fundamental issue concerning the scope and proper interpretation of the

Brussels II bis Regulation which does not appear to have been previously considered by the Court of Justice. For my part, I am

doubtful whether such an order is properly within the scope of the Regulation, or, if it is, that it can be enforced via the Chapter III

procedure because to do so would seem at variance with that which is envisaged, at least implicitly, by Article 11 of the Regulation

and the incorporation of the Hague Convention process by this provision.

37. It is accordingly appropriate that this Court should refer the following question to the CJEU pursuant to Article 267 TFEU:

“Where it is alleged that children have been wrongfully taken from the country of their habitual residence by their parents

and/or other family members in breach of a court order obtained by a public authority of that State, may that public

authority apply to have any court order directing the return of the children to that jurisdiction enforced in the courts of

another Member State pursuant to the provisions of Chapter III Council of Regulation (EC) No. 2201/2003 or would this

amount to a wrongful circumvention of Article 11 of that Regulation and the 1980 Hague Convention or otherwise amount

to an abuse of rights or law on the part of the authority concerned?”

38. I now propose to address the remaining issues in this appeal, on the assumption, of course, that the return made order made by

the English High Court was properly the subject of a Chapter III enforcement order.

Whether the procedure adopted by Hampshire County Council had the effect of compromising the procedural rights of the

parents?

39. It is next necessary to consider the relevant provisions of Order 42A of the Rules of the Superior Courts, as inserted by the Rules

of the Superior Courts (Jurisdiction, Recognition and Enforcement of Judgments) 2016 (S.I. No. 9 of 2016). As originally enacted in

1989, Order 42A reflected the procedure of the then Brussels Convention by providing for automatic staying of the enforcement order

pending the outcome of any appeal. Given the position of children, the automatic stay rule was not, however, considered appropriate

in cases coming within the scope of the Brussels II bis Regulation.

40. This was further reinforced by the judgment of the Court of Justice in S.C. where the Court concluded (at para. 147 of the

judgment) that “appeals brought against such a decision of the court of the requested Member State must not have a suspensive

effect.” As Humphreys J. explained in Bedfordshire C.C. v. M., this, however, does not mean that a stay cannot be granted by a

court, but rather that the very action of lodging an appeal cannot in itself have suspensive effect.

41. The new version of Order 42A thus provides that “execution of the judgment or decision may issue before the expiration” of the

relevant appeal period: see Ord. 42A, r. 10(2)(ii). It is, nonetheless, necessarily implicit in this that the relevant appeal period must

already have started and this, of course, can only happen by due service of the enforcement order (and accompanying

documentation) on the parties concerned: see Article 33(5). The order providing for enforcement must also contain a notification that

“execution of the judgment or decision may be stayed on application to the Court in the event of an ordinary appeal in the Member

State of origin”: see Ord. 42A, r. 10(2)(iii). In the present case, however, although the parents did lodge an appeal with the English

Court of Appeal, they had no meaningful opportunity of applying for a stay in respect of the English High Court order because the

children had been taken from the jurisdiction before the parents were ever served with the enforcement proceedings.

42. In Child and Family Agency v. C.J. [2016] IESC 51 O’Donnell J. described the approach of the CFA in resisting an application for a

stay in the High Court in respect of the enforcement of an order of a Scottish court in Brussels II bis proceedings as “disturbing”. In

that case the consequence of that approach was found to be that an irreversible order providing for the return of a child was made

“an order moreover which the Court of Appeal and …this Court considers to have been wrongly made.”

43. I regret to say that the circumstances of the present case are infinitely more serious. While I appreciate that the social workers

concerned (both British and Irish) were all anxious to protect the welfare of the children concerned and cannot really be expected to

have had any familiarity with the niceties of either the Brussels II bis Regulation or Irish civil procedure, their zeal to ensure that the

children were returned speedily to the United Kingdom in this fashion without notice to the parents seems nonetheless to have dulled

any sense of legal propriety they might otherwise have had. The net effect of their actions was, however, in the words of Ó Dálaigh

C.J. in The State (Quinn) v. Ryan [1965] I.R. 70, 118 “to eliminate the courts and to defeat the rule of law as a factor in

government.”

44. Just as alarming is the fact that it appears that from the judgment of Humphreys J. in M. that what happened here was no

isolated incident. Indeed, it appears that something of a practice has grown up in recent times where social workers attached to local

authorities in the UK travel to Ireland for the purposes of arranging for the return of children whose parents have brought them to this

State in breach of court orders made by the U.K. courts after the making of the ex parte enforcement order but before the parents

are served with the proceedings, thus depriving them of any opportunity to apply for a stay of that enforcement order or, indeed,

applying for a stay of the original order of the U.K. courts pending an appeal of that order. It is also difficult to avoid the impression

that the child care system provided for under the Child Care Act 1991 is being circumvented for this purpose.

45. At all events, this practice of removing the children before the service of the proceedings on the parents is a wholly unlawful one.

It is utterly at odds with the constitutional guarantee of fair procedures, because an ex parte order of this kind cannot validly have

irreversible effects of this kind: see DK v. Crowley [2002] IESC 66, [2002] 2 I.R. 712. It is equally at odds with the concept of a

democratic State based upon the rule of law guaranteed by Article 5 of the Constitution of which this Court has so frequently spoken

in recent times, given that the right of access to the courts is not only a constitutionally guaranteed right deriving from Article 34.1,

Article 34.3.1 and Article 40.3 of the Constitution, but as (the not altogether dissimilar case of) The State (Quinn) v. Ryan itself

shows, albeit in a different context, it is a cornerstone of a democratic state based on the rule of law. One might equally observe

that the practice sets at naught the procedural guarantees – explicit and implicit – provided for in Chapter III of the Brussels II bis

Regulation and is also inconsistent with the guarantees of an effective remedy contained in both Article 47 of the EU Charter of

Fundamental Rights and Article 13 ECHR.

46. This practice of taking and then returning the children following the making of the ex parte enforcement order but before the

parents are served with the enforcement proceedings clearly compromises the procedural rights of the parents to object to the

making of that enforcement order in the first place and, if necessary, to apply for a stay. It is the clear duty of the courts to direct

that this practice on the part of UK local authorities acting in conjunction with the CFA in this fashion must stop immediately. If it

does not, then I fear that it may lead to some altogether unpleasant consequences for those acting in this fashion in any future case,

for the prospect of contempt proceedings against social workers in such cases were this practice to re-occur must be a very real

one.

The delays on the part of the parents

47. I next turn to the question of the delays on the part of the parents. As I have indicated, the High Court enforcement order was

served on the parents on 22nd September 2018. As Article 33(5) provides that time shall run from the date of service, it follows that

the time limit expired on Wednesday 22nd November 2017. The parents’ appeal was not, however, lodged until Friday 24th November

2017, i.e., two days late.

48. In passing I should say that I am assuming for present purposes that the parents were habitually resident in the United Kingdom

at the date of service, even though they had sworn in their grounding affidavit that they had permanently moved to Ireland. If they

had in fact acquired permanent residence in Ireland by the date of service, then the time period would have been one month. At all

events, however, the case proceeded before the High Court on the basis that the relevant time period in the present case was two

months and I shall treat that as the relevant time period.

49. The first question which needs to be considered is whether the High Court has a jurisdiction to extend the time and, if so,

whether that jurisdiction might be exercised in the plaintiff’s favour. If this matter were viewed from the perspective of domestic law,

the starting point would be that the parents had a general entitlement under the provisions of Ord. 122, r. 7 of the Rules of the

Superior Courts to seek to have the time period for an appeal of this kind which, in reality, as I have already noted, is essentially an

application to have the enforcement order which had been made ex parte set aside.

50. If this reasoning were to be applied to the present case, it would have to be said that, viewed again through the prism of

domestic law, the courts would enjoy an inherent jurisdiction to extend time for the purposes of such an appeal. In assessing whether

time should be extended, the courts would generally look to see whether (i) the prospective appellants had formed an intention to

appeal during the currency of the two months period; (ii) the failure to lodge the appeal in a timely fashion was due to error or

oversight and (iii) the prospective appellants could point to the existence of arguable grounds of appeal: see Éire Continental Trading

Co. Ltd. v. Clonmel Foods Ltd. [1955] I.R. 170. Even then, as Lavery J. admitted ([1955] I.R. 170, 173) while “these three conditions

are proper matters for the consideration of the Court in determining whether time should be extended”, nevertheless “they must be

considered in relation to all the circumstances of the case.” These tests are not, however, exclusive and other factors can be taken

into account.

51. It needs also to be said that, somewhat surprisingly, the parents’ grounding affidavit is silent on the reason for these delays, an

omission which has not necessarily worked to their advantage. At the same time, it is, I think, possible to see that they can satisfy

the requirements of the Éire Continental test.

52. As to (i), it is clear that they must have formed an intention to appeal during the currency of the two months because had they

not done so it simply would not have been possible to prepare and lodge the appeal papers so close to the expiration of the two

months period. In any event, the parents had sought to appeal the original English High Court order to the Court of Appeal for England

and Wales, which also suggests that they had formed an intention to appeal the enforcement order. One could also note the fact

that the parents entered an appearance in the Irish enforcement proceedings on 27th September 2017 and this also suggests that

the parents had formed such an intention to appeal.

53. As to (ii), it must be admitted that there is no evidence of error or oversight. But the very fact that the appeal was only

marginally out of time suggests that an effort was being made to ensure that the appeal was lodged in a timely fashion. The delay

was, in any event, so small that it should really be properly regarded as de minimis.

54. As to (iii), it is clear that the parents have arguable grounds of appeal. I have already dealt with one of those grounds – namely,

whether the return order should properly have been enforced under Chapter III of the Regulation or whether this amounted to a

circumvention of the provisions of Article 11 – and it is clear that this ground is manifestly arguable.

55. The other potential ground of appeal relates to Article 23 of the Regulation, namely, whether the judgment was given in default of

appearance and whether the parents had an adequate opportunity to be heard. In this regard it would seem from the affidavits filed

by the respective solicitors for the parties that Ms.E.’s English solicitors was served with the proceedings applying for wardship and a

return order on the morning of the application on the 8th September 2017 to the English High Court, but that they had no instructions

in relation to that matter. It is again sufficient to say that the parents have clearly established arguable grounds of appeal in respect

of this issue as well.

56. If, therefore, this matter were to be judged from the perspective of purely Irish procedural law, this Court would have been

disposed to grant the parents an extension of time having regard to the general power to extend time contained in Ord. 122, r. 7.

This is especially so given the gravity of the matter so far as the parents are concerned, the shortness of the delay and the absence

of any identifiable prejudice to the Council or, indeed, the children who at the time were in the care of the CFA.

Whether there is a jurisdiction to extend purposes of Article 33(5)?

57. I now turn to the question of whether there is a jurisdiction under Article 33(5) to extend time. While this is a topic on which

there is not a great deal of authority, I pause to start with a consideration of two decisions of the Court of Justice.

58. The first case is that of Case 145/86 Hoffman v. Krieg [1988] E.C.R. 662. In that case the wife had obtained an order from the

Dutch courts in 1981 enforcing a German judgment for maintenance against her former husband. That enforcement order was served

in April 1982. No appeal was taken against that decision.

59. About a year later the wife obtained an order attaching her husband’s earnings. One of the questions raised by the Hoge Raad

(Dutch Supreme Court) was whether the then Brussels Convention (Article 36 of which was in similar terms to Article 33(5)) should be

interpreted as meaning that a party who has not appealed against the enforcement order is precluded “at the stage of execution of

the judgment from relying on a valid argument which he could have raised in an appeal against the enforcement order.”

60. The Court answered that question in the affirmative saying (at paras. 29-30):

“29. However, the application for the purposes of the execution of a judgment, of the procedural rules of the State in

which the enforcement is sought may not impair the effectiveness is sought may not impair the effectiveness of the

scheme of the Convention as regards enforcement orders.

30. It follows that the legal remedies available under national law must be precluded when an appeal against the

execution of a foreign judgment has been issued is lodged by the same person who could have appealed against the

enforcement order and is based on an argument which could have been raised in such an appeal. In those circumstances

to challenge the execution would be tantamount to again calling into question the enforcement order after the expiry of

the strict time limit laid down by the second paragraph of Article 36 and would thereby render that provision ineffective. ”

61. While Mr. Finn (and, indeed, the Council in its written submissions) placed great weight on the use of the words “strict time limit”

by the Court of Justice in that judgment, I do not think that the case is really quite as helpful as has been suggested. This part of

the judgment in Hoffman is really an example of estoppel by conduct on the part of the husband and attempting a collateral attack

almost a year later on the original enforcement order which he had never appealed when he was first served. The present case is

quite different as the delay can be measured almost in hours rather than in months as was the case in Hoffman.

62. The second case is Case C-3/05 Verdoliva [2006] E.C.R. 1-1595. That was a case where a judgment of a Dutch court was made

the subject of an enforcement order. It appears however that the order was at best served on Mr. Verdoliva in a manner regarded by

Italian law as defective. Following a review of the objects of the enforcement provisions of the Brussels Convention, the Court of

Justice concluded (at para. 38) that:-

“…..Therefore the reply to the questions put to the Court must be that Article 36 of the Brussels Convention is to be

interpreted as requiring due service of the decision authorising enforcement, in accordance with the procedural rules of

the Contracting State in which enforcement is sought, and therefore, in cases of failure of, or defective, service of the

decision authorising enforcement, the mere fact that the party against whom enforcement is sought has notice of that

decision is not sufficient to cause time to run for the purposes of the time-limit fixed in that Article.”

63. Again, the judgment must be regarded as being of limited assistance in the present context beyond stressing that the

enforcement provisions of the Brussels Convention contain an in-built system of checks and balances of which due service on the

defendant against whom enforcement is sought is but one. The Court admittedly also spoke of the “strict and mandatory time limit”

for appealing, but the issue of whether there was a jurisdiction to provide for an extension of time was not squarely considered by the

CJEU.

64. The most comprehensive analysis of this question is, however, to be found in the judgment of Gross L.J. in Christofi v. National

Bank of Greece [2018] EWCA Civ. 413, [2018] W.L.R. (D) 155. In that case the appellant was twenty two days out of time to appeal

against the making of an enforcement order by the English courts in respect of a consent order which had been made in the Cypriot

courts some four years earlier. In her judgment delivered in the English High Court Andrews J. held that there was no jurisdiction to

exend time (save for exceptional cases amounting to a breach of Art. 6 ECHR) under Article 43(5) of the Brussels Regulation (EC) No.

44/2001. This decision was upheld by the Court of Appeal for England and Wales in a judgment delivered on the 9th March 2018.

(Article 43(5) of the Brussels Regulation is couched in the same terms as Article 33(5)).

65. In their respective judgments both Andrews J. and Gross L.J. conducted a thorough review of the objects of the Brussels/Lugano

system, the relevant case-law and the topic, sprinkled with erudite analyses of the relevant provisions of the Jenard Report (the

Explanatory Report to the Brussels Convention) and the Pocar Report (the Explanatory Report to the Lugano Convention). It would be

difficult to improve on the quality of the detailed analysis of these questions found in these two judgments.

66. While both judgments acknowledge that enforcement is often regulated by national procedural law - indeed such is expressly

admitted by Article 30(1) of Brussels II bis - the court concluded there were definite limits in this context to the use of national

procedural laws to justify the extension of time. As Gross L.J. put it (at paras. 61-62):-

61. “The challenge posed by reliance on national procedural laws is that they will, of course, not be uniform. A question of

degree is involved; supplementing the Regulation system is one thing; undermining it is another. Wholesale recourse to

national procedural laws would pose a threat to the uniformity, simplicity and effectiveness of the Regulation system for

the recognition and enforcement of judgments. Accordingly, the room for the adoption of national procedural laws must

necessarily be confined so as to ensure that they do not undermine or subvert the policy of the Regulation. As expressed

in Hoffman v Krieg (supra), at [29], national procedural law must "not impair the effectiveness of the scheme of the

Convention as regards enforcement matters".

62. In my judgment, the existence of a general judicial power to extend time for appealing beyond that allowed for in Art.

43(5) in the case of Category A or B parties, would undermine the policy of the Regulation and would not be compatible

with it. The point is a short one, best made simply. Whatever the position might be if only one jurisdiction was involved,

that would not be the case here. The general power would be exercised, differently, depending on the national procedural

laws of each of the Member States. While caution is always advisable before ruling out the existence of any power to

extend time (subject only to the Art. 6 exception) – there will inevitably be hard cases – this is not a straightforward

matter of giving effect to a judicial discretion exercised…..in accordance with settled principles. The principles can and

would diverge between the Member States; certainly, the manner of their exercise would so diverge, very likely

substantially. Such a general power would drive a coach and horses through the scheme for the recognition and

enforcement of EU judgments. It would undoubtedly ‘impair its effectiveness’.”

67. The court also rejected the argument that the reference to no extension of time on account of distance in (the Brussels I

equivalent of) Article 33(5) implied that an extension of time might be granted for other reasons. Gross L.J. stated that it was implicit

in the scheme of Article 33 that the difficulties which persons might encounter in appealing enforcement orders made by courts of the

State in which they were not habitually resident (such as unfamiliarity with security access to appropriate legal services in that

country) were adequately addressed by allowing a two month time limit in which to appeal.

68. As I have already hinted, the judgments in Christofi represent an admittedly powerful analysis of this very question as to the

jurisdiction to extend time. Christofi was, however, a straightforward commercial case concerning a money judgment. There are

nonetheless differences between that case and the present one. In particular, the actions of Hampshire County Council effectively

frustrated the proper operation of key safeguards contained in both Chapter III and Ord. 42A by depriving the parents of a right to

apply for a stay either in the English or the Irish courts, whereas nothing of the kind occurred in Christofi.

69. Irrespective, however, of the merits or even suitability of the appellants as parents or (in the case of Mr. E., step-parent) of the

children, it is not difficult to imagine the shock and bewilderment that they must have encountered to discover that the three children

had been taken from them and returned without prior notice to them to the U.K. They may well have felt that it was then pointless to

endeavour to appeal. It is at least arguable that the actions of the Council were such that they effectively could be considered to

have so compromised the procedural rights of the parents for the purposes of Article 6 ECHR and Article 47 of the Charter that it

would nonetheless be just that time for an appeal should be extended.

Conclusions

70. There are weighty and momentous issues concerning the operation of the enforcement provisions of the Chapter III of the

Brussels II bis Regulation and, indeed, the entire Brussels/Lugano system. For my part, despite the manifest urgency of this appeal, I

consider it is necessary that this court also refer the following further questions to the CJEU pursuant to Article 267 TFEU, namely:-

(ii) in a case concerning the enforcement provisions of Council Regulation (EC) 2201/2003 is there a jurisdiction to extend

time for the purposes of Article 33(5) where the delays are essentially de minimis and an extension of time would

otherwise have been granted by reference to national procedural law?

(iii) without prejudice to question (ii) where a foreign public authority removes the children, the subject matter of the

dispute, from the jurisdiction of a Member State pursuant to an enforcement order made ex parte in accordance with Art.

31 of Council Regulation (EC) 2201/2003 but before the service of such order on the parents thereby depriving them of

their rights to apply for a stay of such an order pending an appeal, does such conduct compromise the essence of

parents’ entitlement under Article 6 ECHR or Article 47 of the Charter such that an extension of time (for the purposes of

Article 33(5)) of that Regulation) should otherwise be granted?

71. I would accordingly propose that the outcome of this appeal should stand adjourned pending the response to the Court of Justice

to the questions referred. In view of the fact that Hampshire County Council is currently proceeding with a process which will or, at

least, may lead to the adoption of the three children in question, I would further propose that the Court of Justice should be

requested to treat this Article 267 TFEU reference as a PPU reference in accordance with Rule 107 of its Rules of Procedure if it

should consider it appropriate to do so.