High Court refuses to recognize English care order due to lack of service and hearing for parents under Brussels II Bis.

[2019] IEHC 340

THE HIGH COURT

Record No. 2017/18/FJ

IN THE MATTER OF CHAPTER III OF COUNCIL REGULATION (EC)

2201/2003

and

IN THE MATTER OF FOREIGN PROCEEDINGS BEARING REFERENCE NO. P017P00941

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 SEPTEMBER 2017

BETWEEN

HAMPSHIRE COUNTY COUNCIL

APPLICANT/RESPONDENT

TO APPEAL

AND

C.E. AND N.E.

RESPONDENTS/APPELLANTS

JUDGMENT of Mr. Justice Binchy delivered on the 12th day of April, 2019

1. This judgment is concerned with two applications arising out of the same decision of this Court (Creedon J.) made on 21st

September, 2017, whereby Creedon J. (ex parte) made orders recognising and enforcing an order of the High Court of England and

Wales made in that jurisdiction (in Portsmouth) on 8th September, 2017, (“the Return Order”) pursuant to Chapter III of EC Council

Regulation 2201/2003, commonly referred to as Brussels II Bis (the “Regulation”). The applications now before this Court are:-

(i) an application to set aside the order of Creedon J. (“the set aside application”); and

(ii) an appeal against the order of Creedon J. brought pursuant to Article 33 of the Regulation. In an earlier decision in

these same proceedings in the Court of Appeal, Hogan J. noted that this right of appeal being, as it is, an appeal from a

decision of one judge of the High Court to another judge of the High Court, might more usefully be regarded as in the

nature of an application to set aside a provisional order of the High Court made ex parte albeit that it is confined to the

limited grounds provided for in Article 23 of the Regulation.

2. There is a very long history leading up to these applications, Following upon the decision of Creedon J., the applicants purported to

exercise their right of appeal from that decision, but Reynolds J., on 18th January, 2018, held that the appeal was lodged out of time.

The appellants then appealed that decision to the Court of Appeal, and in a decision dated 17th May, 2018, (Hampshire County

Council v. C.E. and N.E. & Ors [2018] IECA 154) that Court decided to refer certain questions to the Court of Justice of the European

Union (“CJEU”). Very soon thereafter, the appellants made a further application to the Court of Appeal, resulting in a further decision

from the Court of Appeal on 7th June, 2018 (under the citation [2018] IECA 157), by which it referred another question to the CJEU.

The decision of the CJEU on all the questions referred to it was handed on down on 19th September, 2018 (Hampshire County Council

v. C.E. and N.E. (Joined Cases C-325/18 PPU and C-375/18 PPU) ECLI:EU:C:2018:739). Following upon that decision, the Court of

Appeal, on 28th November, 2018 (under the citation [2018 IECA 365]), handed down its decision on the appeal of the appellants, in

the light of the decision of the CJEU, but also having regard to a new argument advanced by the appellants in relation to the appeal

period. In that decision the Court of Appeal determined that the appeal of the appellants from the decision of Creedon J. had been

brought within the time prescribed by the Regulation, and remitted the appeal itself for determination by this Court as a matter of

urgency. The appeal and the set aside application, were heard over three days concluding on 28th March, 2019.

Background

3. The background giving rise to the application made before Creedon J. on 21st September, 2017, has already been set out in

considerable detail in the judgments of the Court of Appeal. Nonetheless, it is necessary to rehearse it again in order to make clear

the context of the arguments advanced by each of the parties in relation to each application.

4. On 5th September, 2017, the appellants and the three minors referred to in the title to these proceedings travelled to Ireland by

ferry from the United Kingdom. The youngest of the three minors, R.E., had been born only two days previously. The appellants had

no previous connection to this State and acknowledged that they travelled here with the three minors for the sole purpose of putting

themselves out of the reach of the respondent, the respondent having earlier that year (on 30th June) obtained interim care orders

pursuant to childcare legislation in the United Kingdom in respect of the two older children, E.W. and M.D. As regards R.E., the

respondent had, prior to his birth, indicated an intention to the appellants to make an application for a care order following his birth.

These interim care orders made in respect of the two older children included in each case an order prohibiting the appellants from

removing the children from the United Kingdom. The first named appellant is the mother of all three children, and the second named

appellant is the father of R.E.

5. The circumstances by which the Return Order was obtained by the respondent are central to the determination of both the set

aside application and the appeal. In resisting the set aside application and the appeal now before this Court, Mr. Richard Hadley of the

respondent swore an affidavit dated 18th December, 2018. He deposes that on 4th September 2017, the respondent received a

report from a psychologist regarding the appellants. This report had been procured at the direction of the family court in Portsmouth.

The report evaluated the appellants and assessed the risks to the children of being in the care of the appellants. It was obtained to

enable that Court to make a determination as regards whether or not to approve care plans previously prepared by the respondent for

all three children (even though at this time R.E. had not yet then been born). That report, which was dated 4th September, 2017,

included a conclusion that the second named applicant presented a medium to high risk, to any child in his care, of exposure to

arguments and violence, and that the first named respondent represented a medium risk to her children as sole carer and medium to

high risk when parenting them jointly with the second named respondent.

6. Mr. Hadley avers that on 5th September, 2017, following upon changes in the interim care plans of the respondent relating to the

appellants and the children (which changes were made as a result of the report of the psychologist, and which changes included,

inter alia, the removal of the children from the care of the appellants), a “contract of expectations” was signed voluntarily by the

second named appellant whereby he agreed to leave the family home and not to return without the permission of the family court.

7. On 6th September, 2017, having considered the report of the psychologist, the family court in Portsmouth approved the changes in

the interim care plans for the children. On the same date, the Court made an interim care order in respect of R.E., so that all three

children were now subject to interim care orders. Mr. Hadley also avers that the childrens’ court appointed guardian fully supported

the proposed changes in the interim care plan and specifically the application of the respondent to remove the children from the care

of the appellants. The appellants did not attend the court hearing on 6th September, 2017, because, by this time they were in

Ireland.

8. Mr. Hadley avers that the respondent was not aware that the appellants had left the United Kingdom at the time that the

applications to the family court proceeded. He further avers that the appellants were nonetheless represented by counsel at this

hearing, and the paternal grandparents of R.E., (mother and stepfather of the second named respondent) did attend that hearing. Mr.

Hadley avers that the paternal grandparents informed the Court that the appellants would not be attending because the first named

appellant had suffered a bleed during the night following the birth of R.E., and indicated that the first named appellant might need to

return to hospital. The solicitors for the parties were unable to contact the appellants by telephone. In any case, the Court on this

date made the orders referred to above. After the making of these orders, on the same day, the respondent attended at the home of

the appellants to remove the children from the care of the appellants, but received no reply at the door as a result of which police

assistance was required. Upon gaining entry to the home, it was apparent to the respondent that the appellants had fled. Mr. Hadley

avers that at this point in time the respondent did not know that the appellants were in Ireland.

9. However, on the following day, 7th September, 2017, the respondent became aware that the appellants had travelled to this

country, and were in Co. Wexford. In light of this development, the respondent considered it a matter of utmost urgency that an

application should be made to the High Court in Portsmouth for the following orders:-

(i) that the children be declared wards of the High Court of England and Wales;

(ii) directing the return of the children to the jurisdiction of England and Wales forthwith.

10. While it is not clear who first informed the respondent as to the whereabouts of the appellants and the children, it was most likely

the Child and Family Agency (“CFA”) in this country which, also on 7th September became aware, through the Gardaí, of the presence

of the family in Wexford. That this is so apparent from an affidavit sworn by Ms. Claire Farrell, Social Worker of the CFA on 17th April,

2018. This affidavit was sworn at the request of the Court of Appeal. The affidavit of Mr. Hadley makes it clear that on 7th

September, 2017, the respondent knew that the appellants and the children were in Wexford, and the affidavit of Ms. Farrell makes it

clear that the exact address was also known to the CFA. The Gardaí were aware of the presence of the family because of contact

made with them by the appellants themselves, and not on account of any activities of the appellants or because they had “come to

the attention of the Gardaí”, in the sense in which that phrase is used.

11. In the course of the hearing of these applications, this Court was provided with email correspondence exchanged between Ms.

Farrell and a Ms. Cabral of the respondent, and it is clear from that correspondence that from mid-morning of 8th September, at

latest, the two agencies, i.e. the respondent and the CFA were in contact with each other, but it seems more likely that that contact

commenced the previous day, having regard to the averment of Mr. Hadley that on 7th September, the respondent knew the family

were in Ireland and specifically in Co. Wexford. I mention all of this because, that being the case, it was open to the respondent to

engage the assistance of the CFA for the service of any documentation on the appellants, should the need arise and, in fact, the

respondent did just that in the weeks following.

12. It did not do so, however, for the purpose of the application made to the High Court in Portsmouth on 8th September. Instead, on

the morning of 8th September, the solicitor acting on behalf of the respondent notified the two firms of solicitors that had

represented each of the appellants in the separate care proceedings that were before the family court, of the intention of the

respondent to make application to the High Court later that day, and purported to serve the proceedings on those firms of solicitors.

Both firms of solicitors responded by email almost immediately. The solicitor acting on behalf of the second named appellant replied

and declined to accept service of the proceedings, while the solicitor acting on behalf of the first named appellant replied stating that

she was still seeking instructions from her client and had been unable to contact the first named appellant. Mr. Hadley does not aver

that these responses were drawn to the attention of the High Court in Portsmouth when the respondent moved its application to that

Court for orders admitting the children to wardship, and also for orders directing the return of the children to England. Those

applications were granted, in the absence of the appellants or any representatives appearing on their behalf and, at the same time,

the interim care orders previously made by the family court in respect of each of the children were then vacated. The Court also

issued a certificate in accordance with Article 39 of the Regulation whereby it certified, inter alia, that judgment was not given in

default of appearance. The basis upon which this certificate was issued by the Court is unknown.

13. In any case, counsel on behalf of the respondent confirmed to this Court in the course of dealing with these applications that the

respondent accepted that judgment had in fact been given in default of appearance and, it must be said, this merely recognises the

obvious fact that the appellants were neither in court nor represented in court when the High Court of Portsmouth dealt with the

applications of the respondent and made the orders that it did on 8th September, 2017. However, counsel for the respondent argues

that the notification given to and the service of documents on the solicitors who were acting on behalf of appellants in the care

proceedings, concerning the intention of the respondent to make the wardship application to the High Court in Portsmouth, on the

same day that the wardship application to the High Court was moved, constituted good or sufficient service of the application on the

appellant, in the circumstances that prevailed, for the purposes of the Regulation. The question as to whether or not that is so is a

central question in these applications which I will address presently.

14. Having obtained the orders sought from the High Court in Portsmouth, the respondent arranged for personal service (in Wexford)

of the orders on the appellants, by a Mr. David Farrell. Mr. Hadley avers that Mr. Farrell is employed by the CFA and that the

respondent had asked the CFA to serve the parents with all documentation associated with the application to the High Court in

Portsmouth, being not only the orders made by the Court but also the application to the Court and the statement of evidence. Mr.

Hadley avers that while the affidavit of service completed by Mr. Farrell refers only to the service of the court order, the respondent

was assured by email from the CFA that other documents associated with the application had also been served upon the appellants.

Mr. Hadley exhibits email correspondence between the respondent and the CFA that demonstrates that all documentation was

transmitted to the CFA for this purpose. However, it is clear from the affidavit of Mr. Farrell that he served the court orders only. But

in any case this point is of limited relevance simply because by this time the High Court in Portsmouth had already made its orders.

Insofar as the appellants would have required all documentation associated with the application for the purposes of appealing the

decision of the High Court in Portsmouth, they had all the documentation in sufficient time for such an appeal and did in fact exercise

their right of appeal, on 25th September, 2017. Leave to appeal however was refused by Court of Appeal of England Wales (Peter

Jackson L.J.) on 9th October, 2017.

15. The respondent and the CFA continued to liaise with each other. Ms. Farrell, in her affidavit, avers that the CFA was informed by

the respondent that the respondent intended to seek a recovery order in relation to the children. The CFA informed the respondent

that the Return Order would need to be recognised and enforced in this jurisdiction pursuant to the Regulation. On 11th and 12th

September, the CFA visited the appellants in their home in Wexford. The first visit was unannounced. Ms. Farrell avers that during the

course of this visit, the appellants stated that they had been advised to come to Ireland by an organisation that assists families to

avoid social services in the United Kingdom. She avers that the appellants indicated that this was the only reason that they came to

Ireland. She also avers that she informed the appellants as to the making of the Return Order.

16. The second visit by the CFA, the following day, was an announced home visit. Ms. Farrell avers that the family home was

maintained to a good standard and there were no concerns noted in relation to the home environment. She avers that the appellants

were advised that the CFA would be applying for an interim care orders based on the concerns and information received from the

respondent. She also informed the appellants that the respondent might apply to the High Court to have the Return Order recognised

and enforced in Ireland, and in that event the children would be returned to the United Kingdom.

17. On 14th September, 2017, the District Court in Wexford made interim care orders, with the consent of the appellants, in relation

to the three children, for a period of twelve days expiring on 26th September, 2017. The children were then placed in foster care

accommodation. The appellants consented to these orders on a “without prejudice basis”. Ms. Farrell avers that a social work report

was provided by the CFA to the District Court, and that that report had “considerable appendices” attached thereto. She avers that

the report, at s. 5 thereof, stated that “UK Social Services are making are awaiting (sic) on ratification of a recovery order for the

children in the Irish High Court”. She further avers that the respondents were unrepresented at this hearing, but that she had

explained to them the contents of the report that would be presented to the Court. A Ms. Mercer of the respondent attended the

District Court on this day, but did not give evidence. Ms. Farrell expressly avers that no declaration pursuant to Article 17 of the

Regulation was made and further avers that it had been agreed that the interim care orders would be granted for 12 days and that an

application to court for an extension of the interim care orders would be made on 26th September, 2017, by which time the appellants

would have sought legal representation.

18. The orders that issued forth from the District Court on 14th September, 2017 contained a reference in the title thereof of Article

20 of the Regulation. There was no other reference to Article 20 of the Regulation in the body of the District Court orders, which were

otherwise standard form interim care orders. Article 20 of the Regulation, under the heading of “provisional, including protective,

measures” provides:-

“(1) In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such

provisional, including protective, measures in respect of persons or assets in that State as may be available under the law

of that Member State, even if, under this Regulation the court of another Member State has jurisdiction as to the

substance of the matter.

(2) The measures referred to in paragraph 1 shall cease to apply when the court of the Member State having jurisdiction

under this Regulation as to the substance of the matter has taken the measures it considers appropriate.”

19. The respondent contends that the orders made by the District Court on 14th September, 2017 were orders made for the purposes

of Article 20 of the Regulation. The appellants, however, argue that there is no evidence that this was so, and that the orders made

by the District Court on that date are, for the purposes of sub-Article 23(f) of the Regulation, irreconcilable with the Return Order, as

a consequence of which the latter should not be recognised in this jurisdiction.

20. On 21st September, 2017, the respondent made an ex parte application to this Court (Creedon J.) for an order recognising the

Return order. Such applications are necessarily made ex parte pursuant to Article 31 of the Regulation. That is accepted by the

appellants, but it is the appellants’ contention that, in the course of advancing this application, the respondent caused the Court to

be misled in a number of material aspects of the application, and also failed to draw to the attention of the Court matters that were

material to its consideration of the same. These allegations form the basis of the appellants’ application to set aside the decision of

Creedon J. The allegations are strenuously denied by the respondent on whose behalf it is argued that the Court was fully appraised

of all material facts for the purposes of the application, before the Court made its order.

21. In any case, Creedon J. granted the orders sought by the respondent. All three children, then in the care of the CFA, were, later

on the same day, transferred at Rosslare Port from the custody of the CFA into the custody of the respondent and brought back to

the United Kingdom where they have since resided. This was done prior to the service upon the appellants of the order of Creedon J.

so that they had no opportunity to prevent the execution of her order prior to any appeal of the same. These actions have been the

subject of severe criticism by the Court of Appeal, in the decisions to which I referred above.

22. As I mentioned in the opening paragraph of this decision, there are two matters before this Court for determination: firstly, the

set aside application and secondly, the appeal of the appellants from the order of Creedon J. pursuant to Article 33 of the Regulation.

I turn now to address each of those matters in that order. However, before addressing the applications before the Court, it is

appropriate at this juncture to set out the provisions of the Regulation relied upon by the appellants in both applications.

The Regulation – Provisions relevant to this Decision

23. Article 1 of the Regulation sets out the scope of the same. It states:-

“1. This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to:

(a) divorce, legal separation or marriage annulment;

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

2. The matters referred to in paragraph 1(b) may, in particular, deal with:

(a) rights of custody and rights of access;

(b) guardianship, curatorship and similar institutions;

(c) the designation and functions of any person or body having charge of the child’s person or property,

representing or assisting the child;

(d) the placement of the child in a foster family or in institutional care;

(e) measures for the protection of the child relating to the administration, conservation or disposal of the child’s

property.

3. This Regulation shall not apply to:

(a) the establishment or contesting of a parent-child relationship;

(b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption; …”

24. Article 23 of the Regulation sets out the grounds of non-recognition for judgments relating to parental responsibility. It provides:-

“A judgment relating to parental responsibility shall not be recognised:

(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought

taking into account the best interests of the child;

(b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in

violation of fundamental principles of procedure of the Member State in which recognition is sought;

(c) where it was given in default of appearance if the person in default was not served with the document which

instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that

person to arrange for his or her defence unless it is determined that such person has accepted the judgment

unequivocally;

(d) on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was

given without such person having been given an opportunity to be heard;

(e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which

recognition is sought;

(f) if it is irreconcilable with a later judgment relating to parental responsibility given in another Member State or in

the non-Member State of the habitual residence of the child provided that the later judgment fulfils the conditions

necessary for its recognition in the Member State in which recognition is sought.

or

(g) if the procedure laid down in Article 56 has not been complied with.”

25. Article 27 of the Regulation under the heading of “Stay of proceedings” provides:-

“1. A court of a Member State in which recognition is sought of a judgment given in another Member State may stay the

proceedings if an ordinary appeal against the judgment has been lodged.

2. A court of a Member State in which recognition is sought of a judgment given in Ireland or the United Kingdom may

stay the proceedings if enforcement is suspended in the Member State of origin by reason of an appeal.”

26. Article 35 of the Regulation under the heading of “Stay of proceedings” provides:-

“1. The court with which the appeal is lodged under Articles 33 or 34 may, on the application of the party against whom

enforcement is sought, stay the proceedings if an ordinary appeal has been lodged in the Member State of origin, or if the

time for such appeal has not yet expired. In the latter case, the court may specify the time within which an appeal is to

be lodged.

2. Where the judgment was given in Ireland or the United Kingdom, any form of appeal available in the Member State of

origin shall be treated as an ordinary appeal for the purposes of paragraph 1.”

27. Article 37 of the Regulation under the heading of “documents” provides:-

“1. A party seeking or contesting recognition or applying for a declaration of enforceability shall produce:

(a) a copy of the judgment which satisfies the conditions necessary to establish its authenticity;

and

(b) the certificate referred to in Article 39.

2. In addition, in the case of a judgment given in default, the party seeking recognition or applying for a declaration of enforceability

shall produce:

(a) the original or certified true copy of the document which establishes that the defaulting party was served with

the document instituting the proceedings or with an equivalent document;

or

(b) any document indicating that the defendant has accepted the judgment unequivocally.”

28. Article 39 of the Regulation under the heading of “Certificate concerning judgments in matrimonial matters and certificate

concerning judgments on parental responsibility” provides:-

“The competent court or authority of a Member State of origin shall, at the request of any interested party, issue a

certificate using the standard form set out in Annex I (judgments in matrimonial matters) or in Annex II (judgments on

parental responsibility).”

Set aside application

29. The application made before Creedon J. was grounded upon an affidavit of Mr. Niall McGrath, solicitor of McCarthy and Associates,

solicitors in this jurisdiction for the respondent. In his affidavit, which is dated 20th September 2017, Mr. McGrath outlines the

background to the application. He describes the relationship between the appellants and the three children. He refers to the interim

care orders (made in England) made in respect of the two older children. Separately he refers to the successful application for a

separate interim care order in respect of R.E. on 6th September, 2017. He then goes on to state how, at “a date unknown” and in

breach of the interim care orders, the appellants travelled to Ireland with the children. He refers to the fact that at the time of

swearing his affidavit, the children were in the care of the CFA pursuant to interim care orders made in this jurisdiction, which he

describes as having being made pursuant to the provisions of Article 20 of the Regulation.

30. He then goes on to deal with the nature of the application before the Court and the requirements for recognition of the Return

Order. He then proceeds to address three of the matters referred to in Article 23 of the Regulation in order to satisfy the Court that

the matters addressed do not arise. Although he does not expressly refer to the provisions of Article 23 of the Regulation to which he

is referring, it is clear that he is addressing sub-Articles 23(a), (b) and (c) of the Regulation. As regards sub-Article 23(a) of the

Regulation, he avers that recognition of the Return Order is not contrary to public policy in this country, having regard to what is in

the best interests of each of the children. He says that the order sought to be enforced is made in aid of care proceedings in the

United Kingdom, which are intended to provide for the proper care of the children. Moreover, he says that the children’s voice will be

heard in such proceedings and that the children are wards of court in England who were removed from that jurisdiction in breach of

care orders. Therefore, it would be contrary to public policy not to return the children to the United Kingdom.

31. Secondly, he avers that the orders sought to be enforced were not made without the children having been given an opportunity

to be heard. He submits that the Return Order does not determine the care status of the children which, coincidentally, was listed for

hearing again in Portsmouth on 21st September (the same day as the application to Creedon J., and which would require adjournment

in the circumstances) and that the children’s voice will be heard through a court appointed guardian. He also says that in any case

the Return Order was made in circumstances of urgency, where the appellants had fled to Ireland.

32. Thirdly, in relation to sub-Article 23(c) of the Regulation, he relies on a certificate issued by the High Court in Portsmouth

pursuant to Article 39 of the Regulation, which issued at the same time as the Return Order, and which states that that order was

not made in default of appearance. However, he draws to the attention of the Court that the appellants were not present in Court

when the Return Order was made, but then proceeds to state that the legal representatives of the appellants were notified of the

hearing of the application for the Return Order, and he submits that, accordingly, the exception in sub-Article 23(c) of the Regulation

does not arise.

33. In relation to the other matters set out in sub-Articles 23(d) – (g) of the Regulation he avers that, while it is a matter for legal

submission, none of the circumstances provided for in those sub-Articles arise.

34. The appellants’ legal representatives subsequently obtained a copy of the DAR transcript of the proceedings before Creedon J. on

21st September, 2017. It is my understanding that this did not become available for a considerable time after the decision of Creedon

J., upon a direction from the Court of Appeal. It is the appellants’ case that the respondent, both in the grounding affidavit of Mr.

McGrath and when moving the application before Creedon J. failed to make full and frank disclosure of all material matters, that it

failed to uphold the requirement of uberrima fides, and that the respondent knowingly made an application ex parte to obtain an order

that it knew, or ought to have known, it was not entitled to and could not in law be granted. The application to set aside the order of

Creedon J. is grounded on the affidavit of Mr. John V. Kelly, solicitor for the appellants who avers and submits therein as follows:-

(1) The respondent failed to disclose to Creedon J. the full circumstances in which the Return Order was made.

Specifically, it was asserted to Creedon J. on behalf of the respondent that the legal representatives of the appellants

had been notified of the hearing before the Court in Portsmouth, and reliance was then placed upon the Article 39

certificate so as to persuade Creedon J. that the Return Order was not a judgment made in default of appearance.

However, Creedon J. was not informed that notification to the solicitors concerned was given only on the morning of the

hearing and nor was the replying correspondence from those solicitors opened to Creedon J. In short, the impression was

created that the appellants had received not just notice, but adequate notice of the application through solicitors who

were authorised to act on their behalf in connection with the same.

(2) That the respondent did not inform the Court that it had not made any effort to serve the appellants themselves, or

that it might have been possible for them to do so having regard to the fact that by the time the application for the

Return Order was made the respondent knew that the appellants were in Wexford and was in contact with the CFA.

(3) The respondent misled the Court by informing it that since the Article 39 certificate stated that the judgment had not

been given in default of appearance, that issue simply did not arise. The respondent must have been aware that this was

incorrect, notwithstanding the Article 39 certificate.

(4) The respondent was clearly aware that the application for the Return Order was moved in circumstances where the

appellants had not been served with the proceedings in sufficient time (or at all) to enable the appellants to arrange for a

defence to the application, and without the appellants being given an opportunity to be heard.

(5) The Court was not told that the children had never actually been spoken to or met the solicitor acting on their behalf

nor any social worker or guardian appointed on their behalf, and therefore no views from any of the children were

obtained, as required by sub-Article 23(b) of the Regulation.

(6) The Court was not informed that the respondent was seeking to obtain the return of R.E. with the intention of having

him adopted.

(7) The Court was informed that the orders made by the District Court in Gorey on 14th September, 2017 were made

pursuant to Article 20 of the Regulation, and this was not correct. The Court was not informed that the orders of the

District Court had been made by consent and without any consideration of jurisdiction or of Article 20. The Court was not

told that the District Court orders were made on or without prejudice basis.

(8) The Court should have been informed that in another case which was proceeding simultaneously before Humphreys J.,

a stay had been placed on a return order by Barrett J. (almost immediately following upon making a recognition order, ex

parte) and that that very issue i.e. the jurisdiction of the Court to grant such a stay was a live issue in the substantive

proceedings at hearing before Humphreys J., in which case both the solicitor and counsel acting on behalf of the

respondent in this case, were also acting on behalf of the local authority in that other case.

35. In reply to these issues, Mr. Hadley, avers and submits as follows:-

(1) The appellants had absconded. They could not be contacted by telephone. They were not responding to their own

solicitors. There was therefore no realistic or practical way that the respondent could contact the appellants.

(2) Documentation relating to the application made by the respondent to the High Court in Portsmouth was served on the

solicitors that had been acting for each of the appellants, prior to the application proceeding. Mr. Hadley exhibits email

correspondence between the solicitor for the respondent and the solicitors who had been acting on behalf of the parents

by way of proof of this service.

(3) It is incorrect to say that Return Order was granted in circumstances which would result in the removal of the

parental responsibility of the parents/appellants, contrary to sub-Article 23(d). Mr. Hadley submits that that is not the

effect of the Return Order, since the parental responsibility of the appellants could not be removed outright save by an

adoption order.

(4) At the time the Return Order was granted, the children were aged 5, 3, and 5 days old. It would have been impossible

for any of the children to understand the nature of the application before the court in Portsmouth. However, both the

children’s solicitor and guardian were in court and supported the application. Since the appellants had absconded and shut

themselves off from all communications with the authorities in the United Kingdom, and were not engaging with the care

proceedings in England, it was not possible for the children’s guardian to have met with the children. The guardian was as

concerned for the welfare of the children as the respondent and had no hesitation in supporting their return to the United

Kingdom, in circumstances in which the courts there had already determined that the children faced an immediate risk of

serious harm in the care of the appellants.

(5) It is incorrect to say that the return of R.E. was sought in connection with his intended adoption. No decision had

been taken at that time as regards the adoption of R.E. and all options as regards R.E. remained under consideration in

accordance with a court timetable put in place by the Family Law Court on 6th September, 2017.

36. Legal submissions made on behalf of the respondent largely reflect the points made by Mr. Hadley in his affidavit. Additionally

however, it is argued that urgent action was required, in the interests of the welfare of the children, following upon the abscondence

of the appellants with the children. Once a party has absconded, personal service cannot be effected. As soon as the respondent

was aware as to the whereabouts of the appellants, every effort was made to serve and notify the appellants as to the making of the

Return Order, and the documents grounding the application for same.

37. It is further submitted on behalf of the respondent that the application to set aside the Return Order should be refused on

grounds of delay. The delay involved is more than fourteen months.

Conclusion on application to set aside

38. Counsel for the appellants referred me to a number of authorities relating to the principles to be applied in applications to set

aside a judgment made ex parte. Counsel relied in particular on the decision of Clarke J. (as he then was) in Bambrick v. Cobley

[2005] IEHC 43 in which Clarke J. set out the factors to be considered in such applications as follows:

“1. The materiality of the facts [not disclosed].

2. The extent to which it may be said that the plaintiff is culpable in respect of a failure to disclose. A deliberate

misleading of the court is likely to weigh more heavily in favour of the discretion being exercised against the continuance

of an injunction than an innocent omission. There are obviously intermediate cases where the court may not be satisfied

that there was a deliberate attempt to mislead but that the plaintiff was, nonetheless, significantly culpable in failing to

disclose.

3. The overall circumstances of the case which lead to the application in the first place.”

And that

“… the test by reference to which materiality should be judged is one of whether objectively speaking the facts

could reasonably be regarded as material with materiality to be construed in a reasonable and not excessive

manner.”

39. In that case, Clarke J. concluded:-

“Applying those criteria to the facts of this case it does seem to me that the non-disclosed facts were of significant

materiality. For the reasons set out above there is a very real possibility that the court would either have made no order

or potentially required short service and considered an order only in respect of a significantly lesser sum had it been

apprised of the full facts.”

40. In his affidavit grounding the application, Mr. McGrath drew to the attention of the Court that the appellants were not present in

the Court when the Return Order was made, but in the same sentence also averred that the Article 39 certificate, which issued with

the Return Order, certifies that the Return Order was not made in default of appearance. He added that the Return Order itself recites

that the legal representatives of the appellants were notified of the hearing and accordingly the ground for not recognising the Return

Order as provided for in sub-Article 23(b) of the Regulation did not arise.

41. Counsel for the respondent, when moving the application before Creedon J., made submissions in an almost identical vein.

Addressing sub-Article 23(d) of the Regulation he stated:-

“But, essentially the question is has the person had an opportunity to be heard and in the circumstances I say where his

legal representatives have been served and where the High Court of England has said that in fact it wasn’t given in

default of appearance that simply doesn’t arise”.

42. Addressing sub-Article 23(c) of the Regulation he stated:-

“And the court will be aware of the recital in the order and also in the certificate that in fact the judgment was not given

in default of appearance”.

43. Earlier in his submissions he informed the court that:-

“The parents’ legal representatives were notified so it wasn’t given in default of appearance.”

44. The effect of these submissions is that Creedon J. was being told that neither of the reasons set out in sub-Articles 23(c) or (d)

of the Regulation arose for consideration in this case because (1) the Return Order itself contained a recital that judgment was not in

default of appearance and (2) the Article 39 certificate certified likewise and (3) the solicitors for the appellants were informed of the

intention of the respondent to make the application to the High Court in Portsmouth.

45. If the facts as relied upon by the respondent in the last paragraph are correct, the question that then arises is whether or not

there was any other relevant or material information that was not disclosed to the Court? There most certainly was. The Court was

not informed that the solicitors for each of the appellants responded to the notifications that they received, on the morning of the

application for the Return Order, and those solicitors had informed the solicitor for the respondent (in England) that they had no

instructions to act in this matter and that in one case at least, they were unable to contact their client. The Court was not informed

that one of these solicitors also stated that a new application for legal aid would be required in order to act on behalf of that

appellant in the matter. Nor does it appear that the Court was informed that this correspondence occurred on the very morning on

which the application for the Return Order was being moved. The impression being given to the Court was that service had been

effected on the solicitors for the appellants.

46. If the Court had been informed of these matters, it can hardly be doubted that this would have led to some discussion as regards

whether or not the appellants had been properly served with notice of the application before the Court in Portsmouth. As likely as

not, this would in turn have led to a discussion as regard the requirements under English law for service of documents. Counsel for the

appellants submitted that, under English law, in order for service on a party’s solicitor to be good service, that party must have

consented in writing to a named solicitor accepting service of the application in question on their behalf and to that end the party

must have furnished to the applicant in writing the address of his/her solicitor for the purposes of service of the application on the

said solicitor or, alternatively, the solicitor must have indicated to the applicant, in writing, that he has been instructed “to accept

service of the claim … on behalf of the defendant.”

47. In wardship proceedings (in England), there is a rule requiring a minimum notice period of fourteen days to parents/respondents

before any hearing or directions hearing in the matter occurs. It is clear that this did not occur and there is no suggestion that any

application was made to the Court in Portsmouth to abridge time.

48. Counsel for the respondent, a member of the English Bar, did not dispute that the foregoing correctly represented the law in

England and Wales. Not only that, at the hearing of this application, counsel for the respondent expressly accepted that the Return

Order was in fact made in default of appearance. Article 37(2)(a) and (b) of the Regulation requires that, in the case of a judgment

given in default, the party seeking recognition or applying for a declaration of enforceability shall produce:-

“(a) The original or certified true copy of the document which establishes that the defaulting party was served with the

document instituting the proceedings or within an equivalent document;

or

(b) Any document indicating that the defendant has accepted the judgment unequivocally.”

49. Perhaps most importantly of all, the Court was not informed that, at the time he was brought to Ireland, there were no court

orders in England relating to R.E. The Court was simply told that an interim care order had been made relating to R.E. on 6th

September, 2017. It is possible that, when making application to the High Court in Portsmouth, the respondent did not know the

precise date on which the appellants and their children had travelled to Ireland, but by the time they applied to Creedon J. for orders,

they must at least have had some doubt as to whether this was before or after the interim care order (made in England, on 6th

September, 2017) pertaining to R.E. At a minimum, Creedon J. should have been informed that there was a possibility that R.E. was

brought to this country at a time when he was not the subject of any court orders.

50. It can hardly be gainsaid that if all of this was opened to Creedon J., she might well have made a different decision as regards the

issue or a declaration of enforceability. That being the case, the failure to disclose to Creedon J. the full circumstances regarding the

service of the proceedings (if such it be at all) on the solicitors for the appellants and also the failure to inform the Court accurately

and precisely as regards the status of R.E., must surely be regarded as a failure to disclose material facts that had the potential the

influence the Court’s determination in the matter.

51. The appellants also argue that the respondent should have informed Creedon J. that the interim care order made by the District

Court in Gorey that that order was made by consent of the appellants and on a without prejudice basis, and without any decision

having been made as to whether or not the habitual residence of the family had changed. It is submitted that the Court should also

have been informed that the order was made pursuant to the Child Care Act 1991, and not pursuant to Article 20 of the Regulation.

For the purpose of the application to set aside a judgment, I cannot accept this argument. While under an obligation to address the

Court correctly on relevant matters of law, and not to mislead the Court in any way as regards the law applicable to the

circumstances of the application, a person making an ex parte application can hardly be under an obligation to anticipate legal

arguments that might be advanced by the other party in the substantive proceedings, and to canvass those points at the ex parte

stage. All that Creedon J. was told in relation to the interim care order granted by the District Court was that it had been made

pursuant to Article 20 of the Regulation. It is true that those orders are stated to be made pursuant to applications made under s. 17

of the Childcare Act 1991, but in applying for protective orders of the kind referred to in Article 20 of the Regulation, the CFA could

only do so by availing of one of its powers under domestic legislation. There is no reason to doubt that the respondent believed that

the CFA was applying, on its behalf, for anything other than protective orders under Article 20 of the Regulation, which is clearly

referred to on the face of the District Court orders. I doubt very much if the disclosure of the fact that these orders were made on

consent and without prejudice would have made any difference to the decision of Creedon J. I think it is highly unlikely that, had this

information been forthcoming, she would have arrived at a conclusion that the order made by the District Court in Gorey was one that

was irreconcilable with the return order for the purposes of sub-Article 23(f) of the Regulation. It is far more likely that she would

simply have looked at the District Court orders, and, having observed the reference to Article 20 of the Regulation, concluded that

those orders were made as short term protective orders, as contemplated by Article 20. So therefore the fact that this background to

the making of the interim care order by Gorey District Court was not opened Creedon J., does not, in my view, constitute a failure to

disclose material information to the Court.

52. In relation to R.E., it is argued that Creedon J. was not informed that the respondent was seeking to obtain the return of R.E.

with the intention of having R.E. adopted. Had Creedon J. been aware of that, she would have been obliged to refuse the return order

in relation to R.E., because the Regulation does not apply to decisions on adoptive or measures preparatory to adoption, by reason of

sub-Article 3(b) of the Regulation. In response to this, Mr. Hadley avers that “nothing could be further from the truth in terms of the

claim regarding adoption”. He avers that although the care plan of the respondent was to seek a placement order with a plan for

adoption in respect of R.E., the final decision as to whether this plan would be acted on a matter for the Court. At paras. 6 to 8 of his

affidavit, he avers:-

“6. It has been stated by the parents in various affidavits and submissions to the court that Hampshire County Council

had always intended to place [R.E.] for adoption and this would be the only conclusion to the care proceedings. This is

simply not true. I say that Hampshire County Council only make the decision to place a child outside its birth family

following comprehensive assessment of both parents, as well as any extended family members put forward who might care

for the child instead of the parents during the child’s majority (sic).

7. A care plan of adoption is always the last option when there is simply ‘no other option which will do’. This decision is

such a significant decision that, although I make the initial decision, my decision is scrutinised by the ADM [Agency

Decision Maker] as an independent check to ensure that nothing has been overlooked. However, I do say that where

there is the possibility that one of the outcomes of proceedings might be adoption, then Hampshire County Council are

quite rightly obliged to make this clear to the parents, the children’s guardian and the court from the outset of

proceedings and this was the case for [R.E.]

8. This does not mean that the local authority works single-mindedly towards that outcome. It means that everyone has

the opportunity to acknowledge it is a possibility so that the parents are not taken by surprise if they fail to engage in

proceedings, or assessments are negative, and the only care plan can be adoption.”

53. Later in his affidavit, Mr. Hadley avers, at para. 79:-

“At the time [R.E.] was returned to England, Hampshire County Council were actively engaging in assessing extended

family members to care for him and this would always have been far more preferable than placing a child for adoption.

[R.E.] was removed from the English jurisdiction at the very start of his care proceedings, which by statute need to

conclude within 26 weeks from commencement. It was far from certain that adoption would be the outcome of these

proceedings for [R.E.] and all options were properly being considered under the court timetable put in place by HHJ Black

on 6th September, 2017…The decision to seek a placement order was not made until 1st December, 2017, as evidenced

by the exhibit RH1. I say that it is simply not true that [R.E.] was returned with the sole aim that he would be adopted.”

54. There is no reason not to accept the averments of Mr. Hadley in this regard. More than that, it makes sense and is consistent

with the treatment of the older children, E.W. and M.D. who were not put forward for adoption. At the time of the Return Order, and

at the time of the hearing before Creedon J. there is every reason to believe that the care proceedings concerning R.E. were at such

an early stage that it could not be credibly argued that the Return Order was a measure preparatory to adoption, even though that

decision may subsequently have been taken in relation to R.E. It was undoubtedly the case that the respondent had much of the

information that it needed to formulate a decision as regards whether or not R.E. should be adopted as of the date of the Return

Order, but the process itself had not actually been embarked upon, save insofar as it may be said that by making R.E. a ward of

court, or previously, having made him the subject of an interim care order, it could be said that those are steps preparatory to

adoption but the reality is that those steps can lead in other directions with different outcomes. I believe it would, in fact, have been

inaccurate to inform the Court the Return Order concerning R.E. in any way constituted a decision on adoption, or a measure

preparatory to adoption.

55. The final argument relating to the application set aside concerns the allegation that Creedon J. was misled as regards the

imposition of a stay on any order that she might make enforcing the Return Order. This allegation is made against the somewhat

unusual background that, at the time of the hearing before Creedon J., both the solicitor and counsel for the respondent were

simultaneously appearing in Court on behalf of another local authority in the United Kingdom in which this very issue, i.e. whether or

not a stay could be placed on an enforcement order made pursuant to Article 28 of the Regulation, was being argued. It is argued

that counsel should have informed Creedon J. as to the issues being argued in that other case, in case it informed her decision as

regards a stay.

56. The other case being relied upon for the purpose of this argument was one at hearing before Humphreys J. at the time. Counsel

did, in fact, refer to this case in the course of his submissions to Creedon J. He stated:-

“Execution may be stayed, and this is important because the jurisdiction – and this is a matter which has arisen in the

case before Mr. Justice Humphreys – the jurisdiction to grant a stay lies not with the court which makes the order, it lies

with the Court, this is according to the scheme of the Regulation, it lies with the appeal court and the appeal court in

Ireland can only grant a stay, that is on foot of the Regulation, can only grant a stay if an appeal has been lodged in the

UK. So the idea is that if you have a problem, you direct it to the UK, if you do not like the fact they are exercising

jurisdiction, if you believe that your rights have been infringed, if you believe you should have been heard, all of those

complaints are directed to the originating court and that is, I think, entirely in accordance with the architecture of the

Regulation. The various other requirements are set out there and I just remind the court that I am stating now that the

intention is to execute as I am entitled to do, as the Court of Justice has set out in S.C., the intention is to execute at

some stage later today in the event that your lordship makes the order that I am seeking.”

57. It has to be said that this is a little bit confusing. But it can hardly be doubted that the overall thrust of what counsel was saying

to Creedon J. was that she could not grant a stay on the enforcement order that she was being requested to make. In referring, as

he was, to the entitlement of the Court to grant a stay in the event of an appeal, counsel was almost certainly referring to Article

27(1) of the Regulation which states:-

“A court of a Member State in which recognition is sought of a judgment given in another Member State may stay the

proceedings if an ordinary appeal against the judgment has been lodged.”

58. At this point in time, the appellants had not lodged their appeal against the Return Order. They did this on 25th September, 2017.

On the face of it, therefore, there was nothing wrong with counsel informing the Court, or at least suggesting to the Court that a

stay could not be placed on the enforcement order.

59. But this was far from the full picture. The proceedings at hearing before Humphreys J. involved a number of cases being heard

together, the first of which was Bedford Borough Council v. M. & Anor. The decision in all cases was given under the reference [2017]

IEHC 583. In para. 19 of that decision, it is recorded that on 22nd August, (2017), Barrett J., having earlier in the day granted ex

parte orders recognising orders made by the English Courts, later in the day placed a stay on his order in the light of submissions

received from the parents of the child concerned in the meantime. The latter order had the effect of preventing the return of a child

to England who would have been returned later on that evening. At para. 25 of his judgment, Humphreys J. records that the

applicants in those proceedings then brought habeas corpus proceedings seeking the release of the child. As I mentioned above,

there were a number of different proceedings involved, and Humphreys J. records that he stayed the removal of the child from the

State pending the determination of all proceedings. That this second order of a stay was made prior to the hearing before Creedon J.

is apparent from the following paragraph, i.e. para. 26 of the judgment of Humphreys J., which records that the matter was heard at

some length before him on 19th and 20th September, 2017. All of that being the case, both the solicitor and counsel for the

respondent in this case, who were also solicitor and counsel for Bedford Borough Council, must surely have been aware of the orders

made by Barrett J. and Humphreys J. imposing a stay upon the recognition and enforcement order of Barrett J. Even though they may

well have disagreed with those decisions, and considered that they might not be correct in law, the legal representatives for the

respondent had a duty to inform Creedon J., at a minimum, that the matter was not free from doubt. (In passing I should observe

that the CJEU later held in answer to one of the questions referred to it by the Court of Appeal in these proceedings that such a

jurisdiction – to grant a stay prior to execution of the enforcement order – does exist, and that the appellants were deprived of their

right to seek a stay by reason of the immediate removal of the children from the State, before service of the order of Creedon J. See

paras. 72-79 of the decision of the CJEU (Hampshire County Council v. C.E. and N.E. (Joined Cases C-325/18 PPU and C-375/18 PPU)

ECLI:EU:C:2018:739). It hardly needs to be said that had Creedon J. been informed of the orders made by both Barrett J. and

Humphreys J. in the Bedford case, she might well have placed a stay on the enforcement order that she was making, and had that

occurred, it is very likely that the course of this litigation would have been very different. Whether or not the result would have been

the same is another matter, but the course of the litigation itself would certainly have been different.

60. I should add at this juncture that this case was heard over three days. It was initially listed for two days, and when the matter

did not conclude at the end of the second day, it was not possible to schedule the resumed hearing for another week. At the

conclusion of the second day, therefore, in light of the arguments made as to what should have been disclosed by counsel to Creedon

J., I gave liberty to the solicitors and counsel acting on behalf of the respondent to file any affidavits that they might wish to file I

order or to address the arguments being made. They chose not to do so.

61. However, while the failure to disclose that orders imposing a stay on the enforcement of a recognition order had been made in the

Bedford proceedings was highly relevant and was not just material but critical to the imminent return of the children to England, was

it of relevance to the Court’s consideration as to whether or not to make orders of recognition and enforcement in the first place? It

can hardly be said that those orders should be set aside on the grounds that the Court was not fully apprised of its jurisdiction to

place a stay on those orders. Somewhat paradoxically, therefore, while the fact that a court was not informed, or was possibly even

misinformed as to its jurisdiction to impose a stay, it does not seem to me that this can be relied upon to support an argument to set

aside the recognition and enforcement orders themselves.

62. It follows from the above that the appellants have been successful with one of the arguments advanced, that relating to the

information provided to the Court as regards the service of the proceedings in England upon the appellants. As I have already said,

that information was deficient and had it been otherwise, the result of the application before Creedon J. might have been different.

But the respondent also argues that the application to set aside should be refused on grounds of delay. The delay in bringing the

application is of the order of 14 months. The response to this argument is that the appellants did not have adequate information with

which to advance this application until they received the DAR transcript which was produced, at the direction of the Court of Appeal,

late last year, following which the application was brought without delay. Unfortunately, it is not clear precisely when the DAR

transcript was produced, but in any case I do not think this argument withstands scrutiny. In relation to the point in respect of which

they have been successful, the appellants at all times had in their possession the information that they needed to advance an

application to set aside. They knew they were not in Court when the Return Order was made. They knew that they had not received

personal service of the application for wardship. They knew that they had not authorised their solicitors to accept service. They had

legal representation in England through which they appealed, unsuccessfully, the Return Order. It is not clear from when they had

legal representation in this jurisdiction, but since they filed an appeal from the order of Creedon J. on 24th November, 2017, they

clearly had representation from some time before that date. By this time, they also had in their possession a copy of the proceedings

grounding the application before Creedon J., including the affidavit of Mr. McGrath.

63. For these reasons, I consider that the appellants did have sufficient information at their disposal to enable them to advance an

application to set aside the order of Creedon J., probably no later than the time that they filed the appeal against that same order.

While it follows from what I have said above that they did not have all the information that they were able to rely upon at the hearing

of this application, until the DAR transcript became available, it is my view that they had sufficient information at that point in time to

bring forward an application to set aside the order of Creedon J. with some confidence.

64. But is the delay a sufficient reason to refuse this application which would otherwise succeed? The appellants were moving on

other fronts. They brought an appeal against the Return Order in England. They lodged an appeal against the order of Creedon J. All

matters were, therefore, placed in issue in both jurisdictions, within time. There is, therefore, no question of any prejudice to the

respondent. The question as to what might be in the best interests of the children was not addressed at all, and it would be purely

speculative on my part to enter into a consideration of that issue.

65. It seems to me that in considering the issue, the Court needs to consider the relative culpability of the parties. I consider that

the failure to provide Creedon J., with all the information that should have been provided to her in her consideration of the application

before her was a far more serious matter than the failure to advance the application to set aside her order in a timely manner. Had

Creedon J. been provided with all the information that should have been provided to her, she might well have declined to make an

order recognising and enforcing the Return Order. Alternatively, she might have made an order but placed a stay on the execution of

that order pending notification to the appellants, who would have an entitlement to apply for a stay pursuant to Article 27 of the

Regulation provided that they appealed the Return Order, which they subsequently did. They were also deprived of their entitlement

to apply to the Court to stay these proceedings pursuant to Article 35 of the Regulation. The effect of all of this was that the

children were moved from this jurisdiction prematurely, before the appellants had any opportunity to avail of entitlements expressly

conferred by the Regulation. In contrast the effect on the respondent, or for that matter on the children, of the delay in advancing

this application is negligible, in circumstances where the appellants lodged an appeal against the order of Creedon J. in time, and the

two applications are being heard together. For all of these reasons, I am fully satisfied that, notwithstanding the delay on the part of

the appellants in bringing forward this application, this Court should exercise its discretion in favour of the appellants and set aside

the order of Creedon J., because of the failure on the part of the respondent to make full disclosure to the Court of information that

was material to the Court’s consideration of the application before it.

Appeal from Order of Creedon J.

66. It is not disputed that compliance with Article 23 of the Regulation is mandatory. If any of the matters arising in Article 23 of the

Regulation are established as having occurred, as a matter of fact, then the Return Order must not be recognised. In this case, the

appellants rely on sub-articles 23(b), (c), (d) and (e), and also Article 37(2) of the Regulation.

67. The appellants submit that sub-article 23(b) of the Regulation is engaged because the Return Order was made without any of the

children being given an opportunity to be heard. In response to this, the respondent says that, firstly, this was a matter of urgency,

which is an exception under sub-article (b). Secondly, it is submitted that the children were, in any event, given an opportunity to be

heard. The children were represented by their own solicitor on the day on which the Return Order was made and the court appointed

guardian ad litem was in attendance. Both supported the making of the Return Order. It is submitted that when considering the “voice

of the child” in cases involving children as young as the children involved in this case, it is entirely appropriate that they are heard

through their guardian.

68. In reply to this submission, the appellants submit that neither the solicitor concerned nor the guardian ad litem had ever met the

children or attended at their home and that accordingly, it is not be the case that they could in any meaningful way articulate the

wishes of the children.

69. On this point, I find in favour of the respondent. The children in this case are clearly too young to be heard in their own right.

They can only be heard through a representative. The representatives consented to the making of the Return Order. They may not

have met with the children or seen their home, but they would have had the benefit of all the documentation before the Court.

Generally speaking, that might not be sufficient in itself, but I also agree with the submission on behalf of the respondent that this

was properly viewed as matter of urgency by the respondent, having regard, inter alia, to the conclusions of the report of the

psychologist to which I referred at para. 6 above, and urgency is an exception to the application of sub-article 23(b) of the

Regulation.

70. Sub-article 23(c) of the Regulation is clearly engaged. It was accepted at the hearing of these applications that judgment was

given in default of appearance, this in turn, engages Article 37 of the Regulation. As far as Article 37 of the Regulation is concerned,

no document was provided to the Court which established “that the defaulting party was served with the document instituting the

proceedings or with an equivalent document”. The respondent relies on the attempted service of the proceedings upon the solicitors

for each of the appellants, who had, up until that point in time, represented the appellants in the care proceedings. It further relies

upon the deliberate actions of the appellants in leaving the United Kingdom in breach of court orders relating to the two older

children, and in circumstances where they had signed an agreement relating to the youngest child, R.E. Counsel for the respondent

urges, therefore, that this Court in considering service, should look at those background facts.

71. In a way, what counsel for the respondent is asking this Court to do is to deem service good, although that is not a function of

this Court, on an appeal such as this; that only be the function of the Court that made the Return Order i.e. the High Court in

Portsmouth. No evidence was placed before this Court to demonstrate that this issue was raised, discussed and adjudicated upon by

that Court.

72. Both parties referred me to authorities of the CJEU in relation to service. The most helpful of these of these authorities, are the

cases of Klomps v. Michel, (Case 166/80) [1981] ECR 1593 and Debaecker v. Bouwman, (Case 49/84) [1985] ECR 1779. In Klomps,

the plaintiff (Mr. Michel) had obtained judgment against Mr. Klomps in summary proceedings in Germany, and had subsequently

obtained an enforcement order arising out of that judgment. The proceedings and subsequent enforcement order had been served in

accordance with German law, but some six months later, Mr. Klomps raised an objection maintaining that, when the documents were

served, his habitual residence was in the Netherlands and not in Germany.

73. A number of procedural questions were referred to the Court in the context of Article 27(2) of the Convention of 27 September

1968 On Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, which was the equivalent provision in that

convention of sub-article 23(c) of the Regulation. One of those questions was to the following effect: where the court that granted

judgment was satisfied that service had been duly effected, does Article 27(2), require that a separate examination be carried out

into the question whether the document was served in sufficient time to enable the defendant to arrange for his defence? If so, is

that examination then confined to the question whether the document reached the defendant’s habitual residence in good time or

must, for example, the question also be examined whether service at that residence was sufficient to ensure that the document

would reach the defendant personally in good time?

74. In addressing this question, the Court stated, at para. 19, pp. 1608 to 1609:-

“In this connection it must be stated first of all that Article 27, point 2, does not require proof that the document which

instituted the proceedings was actually brought to the knowledge of the defendant. Having regard to the exceptional

nature of the grounds for refusing enforcement and to the fact that the laws of the Contracting States on the service of

court documents, like the international conventions on this subject, have as their objective the safeguarding of the

interests of defendants, the court in which enforcement is sought is ordinarily justified in considering that, following due

service, the defendant is able to take steps to defend his interests as soon as the document has been served on him at

his habitual residence or elsewhere. As a general rule the court in which enforcement is sought may accordingly confine

its examination to ascertaining whether the period reckoned from the date on which service was duly effected allowed the

defendant sufficient time to arrange for his defence. Nevertheless the court must consider whether, in a particular case,

there are exceptional circumstances which warrant the conclusion that, although service was duly effected, it was,

however, inadequate for the purposes of enabling the defendant to take steps to arrange for his defence and,

accordingly, could not cause the time stipulated by Article 27, point 2, to begin to run.”

75. It is clear from this passage that the Court places greater emphasis on the requirement that a defendant should have sufficient

time to arrange for his defence, than on technical compliance with service requirements. It may be observed that in this case, there

was not even technical compliance with service requirements in accordance with the laws of England.

76. The case of Debaecker is of particular interest because in that case, one of the questions posed to the Court was whether the

fact that the defendant was responsible for the failure of the duly served document to reach him prevents the Court, where, for

example, the plaintiff was aware that the defendant had left the address stated to be his place of residence, from considering that

further steps to inform the defendant of the impending action should be taken? The question resonates with the circumstances of this

case: the appellants themselves created the circumstances that gave rise to difficulties in service of the documentation but the

respondent was aware, by the time the wardship application was moved before the High Court in Portsmouth, that the appellants

were in Ireland, and if not already aware of the appellant’s address, must have known that it could quickly be obtained through the

CFA.

77. In answer to this question, the Court held at para. 27:-

“However, the Convention does not impose on the plaintiff any obligation to take steps such as those referred to in

Question 2(b). The failure to take such steps is in reality merely a factor which must be taken into account in order to

establish whether service was effected in sufficient time.”

(In question 2(b) the Court was asked “Can the plaintiff be required as a result of circumstances which arose after

service was effected, in particular notification to the plaintiff of the defendant's address, to take further steps to inform

the defendant of the impending action, so that if such steps are not taken the time required by Article 27(2) does not

begin to run?”)

78. Then, at para. 31, the Court stated:-

“In view of the fact that Article 27(2), as has already been stated, seeks to enable a defendant to defend himself

effectively, the defendant’s behaviour may not be used as a basis for considering that service was effected in sufficient

time even though the plaintiff subsequently became aware that the defendant could be reached at a new address. To

admit such a proposition would be tantamount to acknowledging the existence of a presumption that service was effected

in sufficient time. Although it may rightly be presumed that service was effected in sufficient time where the plaintiff did

not know where to reach the defendant, such a presumption would clearly be contrary to the principle that the

defendant’s rights should be protected if, after service, the plaintiff learned where the defendant could be reached.”

79. Finally, at para. 32, the Court stated:-

“It will therefore be for that court to assess, in a case such as the present, to what extent the defendant’s behaviour is

capable of outweighing the fact that the plaintiff was apprised after service of the defendant’s new address.”

80. These decisions were referred to and applied by the Court of Appeal in England in the case of Re D (A Child) (International

Recognition) [2016] EWCA Civ 12. In his judgment, Ryder L.J. stated, at para. [68]:-

“In my judgment, the rights of the defendant have priority so as to displace any findings of the originating court if such is

necessary to uphold his/her rights of defence.”

81. Later, at para. [72], he stated:-

“Consequently, I would hold that a recognising judge is not bound by the originating court’s decision on whether or not a

judgment was made in default of appearance and is entitled to make his own assessment in that regard.”

82. For this reason, the Court considered that the “recognising” Court was not bound by a certificate issued by the originating court

pursuant to Article 39 of the Regulation.

83. At para. [81] of his judgment, Ryder L.J. stated:-

“As a result, in order to guard the rights of the defence, it is open to the court called upon to recognise the judgment to

conclude, even if this is contrary to the view of the court of origin, that the method of service used was insufficient to

start the clock running against a defendant as from the moment of that service and to draw the conclusion that s/he was

not served in time or in such a way as to arrange for his defence. Accordingly, it is clear that valid service alone does not

satisfy art 23(c), …”

84. Ryder L.J. did consider that the state of knowledge of a defendant is a relevant factor to be taken into account when considering

whether a defendant had sufficient time to arrange for his/her defence. He stated that what matters is “not form but function….and

the recognising court needs to look at the reality of the situation.”

85. This might suggest, as counsel for the respondent urges, that in this case, the reality of the situation is that the appellants

themselves orchestrated or were responsible for the situation whereby they could not be served with court documents and,

therefore, that they should not be entitled to rely upon sub-Article 23(c) of the Regulation in the particular circumstances of this

case. However, I have difficulty in accepting that argument. As I have said above, by the time the respondent was moving the

application before the High Court in Portsmouth, it had had contact with the CFA and was aware that the appellants had travelled to

this jurisdiction. It may well even have been aware at this point of the exact address of the appellants, but even if it was not, it was

clear that that address was readily ascertainable. It was also clear that in these circumstances, any concerns for the immediate

safety of the children would have to be addressed by the respondent through the CFA in this jurisdiction, as occurred when the

District Court made interim care orders on 14th September, 2017. In any case, counsel for the respondent accepted that the urgency

of the matter was not driven by concerns for the safety of the children but was driven by the other factors, including that the two

older children (who have different fathers) were, by the actions of the respondent being removed from the father of one, who is also

the father figure for the other.

86. There can hardly be any doubt but that at the time that it moved the application before the High Court in Portsmouth, the

respondent knew that it was possible to arrange for service of the proceedings on the appellants in this country with the assistance

of either the CFA or the gardaí in this country, and this could have been arranged swiftly and with ease. The respondent deliberately

chose not to take this course and in doing so, disentitled the appellants to their opportunity to receive, consider and enter a defence

to the proceedings. The reliance by the respondent on the notification to the solicitors who had acted on behalf of the appellants in

the care proceedings was hopelessly misplaced. In doing so the respondent effectively took the law into its own hands. Judgment was

given in default of appearance and on any analysis the defendants were not served with the documents instituting the proceedings

until after the making of the Return Order. I have no doubt at all but that this Court has an obligation to refuse to recognise the

Return Order, on these grounds, in accordance with sub-Article 23(c) and Article 37 of the Regulation.

87. It follows from this the Return Order was given in circumstances where the appellants, having parental responsibility for the

children, did not have an opportunity to be heard, as required by sub-Article 23(d) of the Regulation, and for this reason also, the

appellants are entitled to succeed with their appeal.

88. Having regard to these conclusions, it is not necessary for me to address the final argument advanced on behalf of the appellants

that the Return Order is irreconcilable with a later judgment relating to parental responsibility i.e. the interim care order made by the

District Court in Wexford.

89. In arriving at these conclusions I have had due regard to the fact that the appellants, by their own admission were seeking to

evade the respondent, and as a childcare authority it can hardly be doubted that the respondent had a duty to the children to act

swiftly to ensure their safety and take whatever measures they considered to be in the best interests of the children, within the

parameters of the law. It is not difficult to understand the concern and frustration those in the respondent organisation who were

dealing with this matter must have felt when they discovered the appellants had absconded with the children. But the application to

the High Court in Portsmouth was not required for the purpose of securing the immediate safety of the children. That was separately

secured with the assistance of the CFA. The requirements for obtaining an order that a party wishes to have recognised and enforced

pursuant to the Regulation are clear, and if any of the circumstances identified in Article 23 of the Regulation obtain, then the

Regulation unambiguously mandates that the order concerned must not be recognised. All of this is for very good reason, which

requires no elaboration here. It has already been set out in the decisions of the CJEU to which I have referred (and also other

decisions of that Court) and the decisions of the Court of Appeal in this matter, as well as the Court of Appeal in England and Wales,

in Re D. Shortcuts are not permissible, no matter how frustrating and inconvenient this may be to the applicant who wishes to have a

judgment recognised and enforced.