This is a motion of the 20th November 2007 seeking an order setting
aside an order made by the High Court on the 13th December 2006 for
the return of the child to Latvia.
The order for return was made on an ex parte basis. The respondent did
not appear and the court was satisfied at the time that the respondent
had been properly served with the proceedings.
Counsel for the respondent makes this application pursuant to the
inherent jurisdiction of the court by reason of the failure of the court to
comply with the mandatory obligation under article 11 (2) of Council
Regulation (EC) 2201 of 2003 to which I will simply refer to as “the
Regulation”.
Article 11 (2) of the Regulation provides that when applying articles 12
and 13 of 1980 Hague Convention it shall be insured that the child is
given the opportunity to be heard during the proceedings unless this
appears inappropriate having regard to his or her age or degree of
maturity.
Counsel for the applicant does not dispute that this court has an inherent
jurisdiction to set aside one of its orders obtained ex parte on certain
limited grounds including where it is obtained by fraud (which does not
apply on the facts herein). He also accepts that the Court has an inherent
jurisdiction to set aside if it failed to have regard to a relevant matter
which goes to its jurisdiction but contends there was no such failure here.
He also objects to the Court now setting aside the order for return as he
submits that would give the respondent who did not appear potentially an
unfair advantage in the events of the proceedings being re-heard.
The short history of the proceedings are that the proceedings were
commenced on the 25th October 2006 by the applicant as the father
of the child who was born 2nd April1998 and it is alleged that the child
was wrongfully removed by the respondent mother to this jurisdiction in
December 2005.
The matter was before this court on a number of occasions between
October 2006 and the 13th December 2006 and finally on that date
counsel for the applicant satisfied the court that the proceedings had
been properly served on the respondent and that there were before
the court all the necessary proofs which gave the applicant a prima
facie entitlement to an order for return under article 12 of the Hague
Convention and the court then made the order for return and directed the
return to take place within seven days of the service of the order.
That order with a penal endorsement was only served on the respondent
in May of 2007 and was not complied with. This court subsequently made
orders directing the respondent to produce the child before this court and
those orders were served and not complied with and ultimately an order
for attachment was made against the respondent and the respondent was
brought before the court pursuant to that order. When she appeared she
purged her contempt of failing to comply with the order to produce the
child by giving certain information and undertakings to the court. She
was not legally represented before the court on that occasion and is now
represented.
This court when it made the order of the 13th December 2006 did so on
the application of counsel for the applicant, who is not the counsel who
now appears in the proceedings. The order does not record that the court
had any regard to article 11(2) of the Regulation. No evidence has been
adduced from the counsel then appearing. I am the judge who made the
order and I have no recollection of either having my attention drawn to
the proper application of article 11 (2) in the context of an application
for an order for return where a respondent has failed to appear after due
service nor having considered it at that time. Therefore it is agreed that I
must proceed with this application on such facts.
Counsel for the applicant has opened to me a number of authorities from
the Courts of England and Wales to similar effect and I propose only
referring for brevity to one of the decisions which is judgment of the
Court of Appeal of the 27th March 2007 in the matter of F (a child) and
the judgments of Lord Justice Thorpe and Mr Justice Munby given in that
decision.
In that case (in the Matter of F (a child)) the application was for return to
Spain under the Hague Convention of a seven year-old. The application
had been contested before the High Court and the respondent had raised
defences under articles 13(a) and 13(b) of the Hague Convention. These
were fought and determined.
However the trial judge had not given the child an opportunity to be heard
during the proceedings. That failure was taken as a point of appeal when
the matter went to the Court of Appeal. The judgments of Lord Justice
Thorpe and Mr Justice Munby make clear that they took the view that
the obligation imposed on the court by article 11(2) the Regulation is a
fundamental obligation and that the court's failure to comply with the
obligation to ensure that the child was heard even in relation to a seven
year old in that case was such that in the words of Lord Justice Thorpe he
considered it to be a “fundamental deficiency” in the proceedings before
the High Court. The appeal was allowed on that issue.
I would respectfully agree with the views expressed in those judgments.
It seems to me inescapable that the obligation imposed on the court by
article 11(2) is a mandatory obligation and independent of any issues
raised by the parties. As such, where, as appears to have been the
position in this case, there was a total failure by the court to comply with
such obligation in the sense of not even considering article 11(2), then
such failure is one which is sufficiently fundamental that it goes to the
jurisdiction of this Court and the court should now set aside the order
made on the 13th December 2006.
I wish to add three observations. The first is that Lord Justice Thorpe
expressly raises certain of the difficulties that may arise by reason of
the mandatory obligation under article 11(2) and one being “what about
unopposed applications”. In reaching this conclusion today I do not wish
to be seen as reaching a conclusion that the court must in every case
where the application is unopposed ensure that the child is given an
opportunity to be heard before it may make an order for return under
article 12 of the Hague Convention. This child was eight and a half years
old in December 2006 and at that age the court was under an obligation
at least to have regard to article 11(2) and to take steps which may
have given the child an opportunity to be heard. It is regrettable in this
jurisdiction that the court has not been given any specific assistance to
enable it easily comply with the obligation under article 11(2) particularly
having regard to the time limits set out in that article. However section 36
of The Child Abduction and Enforcement of Custody Orders Act, 1991
allows the court make orders which should result in the whereabouts of
a child being ascertained or, as a matter of last resort the child being
brought before the court. The court must at least take some steps to try
and ensure that the child is given an opportunity to be heard unless, of
course, it is prima facie inappropriate having regard to its age.
The second observation I wish to make is that I accept fully Mr Finn's
submission on behalf of the applicant that the mother must not now
in any rehearing of these proceedings be given an opportunity to
raise matters of herself which she didn't come before the court in
December 2006 to raise or to rely on any matters which have happened
subsequent to that date. However it is a separate question as to how the
court should now deal with any issue which may arise from hearing the
child.
The last observation I would make relates to the balance of the motion
not yet heard. The court has put in place a procedure which in most
relevant cases allows for an interview and assessment of the child by
an appropriately qualified person for the purpose of the court complying
with its obligation under article 11(2). That is done normally with the
cooperation of the solicitors acting for the parties and in particular
solicitors who are Legal Aid Board solicitors and with the cooperation of
the Legal Aid Board who fund such assessment and interview and report
to the court. The court is indeed indebted to the Legal Aid Board for
facilitating this at present and, until such time as different arrangements
are put in place, it is a practical arrangement. However, it is not sufficient
to meet the court's obligations in all cases.
I am going to release with the note of this judgment a copy of the type
of standard order which the court makes for such interview, assessment
and report, for the purpose of facilitating the parties in dealing with the
remaining matters which arise under the notice of motion and which were
adjourned until I had given my decision on the application to set aside the
order of 13th December, 2006. The draft should be adapted to the facts of
the proceedings.
Approved: Finlay Geoghegan J.
IT IS ORDERED pursuant to Section 47 of the Family Law Act 1995
that do interview and assess the Minor named in the title hereof for
the purposes of the Court ensuring that the said Minor is given the
opportunity to be heard in the proceeding and the Court exercising its
jurisdiction and discretion (if any) under Articles 12 and/or 13 of the
Hague Convention on the following: –
1. The degree of maturity of the said Minor
2. Whether the said Minor object to being returned to
3. If the said Minor does object to being returned to
(a) The grounds of such objection and in particular whether it relates to
an objection to living in and/or a desire to remain in Ireland or whether it
relates to an objection to living with or living in the vicinity of a particular
parent and/or wish to live with the other parent
(b) Whether any objections expressed have been independently formed or
result from the influence of any other person including a parent or sibling
4. Any other matters which the said Minor wish to be brought to the
attention of the Court in relation to
(a) the circumstances in which they were living prior to their coming to
Ireland in; and
(b) the circumstances in which they came to Ireland in; and
(c) their wishes in relation to their future care and living arrangements;
and
(d) any other information they may wish the Court to take into account in
deciding the application for an Order for the return of the said Minor to
AND IT IS ORDERED that the report be furnished to the High Court on
or before by sending same to the Registrar of the Hague Luxembourg
List The High Court Four Courts Dublin 7 and that a copy of the report be
furnished to the Solicitors for the Applicant and for the Respondent herei.