This application was heard before me on the 17th April, 2007. The
application was for judicial review pursuant to leave being granted by
order dated 6th November, 2006, for the following reliefs:
(a) An order of certiorari by way of application for judicial review quashing
the order made by the respondent on the 29th May, 2006, appointing the
notice party as guardian of the children R. McA. and V. McA. (hereinafter
referred to as the children).
(b) An order of certiorari by way of application for judicial review quashing
the order made by the respondent on the 25th September, 2006, granting
the notice party sole custody of the children.
(c) A declaration that the courts of Ireland do not have jurisdiction to
make orders in respect of the children.
(d) An order of prohibition, prohibiting the respondent from determining
guardianship and/or custody and/or access disputes as between the
applicant and the notice party.
(e) A stay on the operation of the said orders of the 29th May, 2006,
and the 25th September, 2006, pending the outcome of the proceedings
within.
(f) Such further or other order as this Honourable Court shall seem meet.
(g) An order providing for the costs.
Background Facts
The applicant and the notice party are not married and they had a
relationship by which they had two children, a daughter R. McA and a
son V. McA who were born on the 29th June, 2002, and the 5th January,
2004, respectively. R. McA was born prematurely and has cerebral palsy
in consequence whereof she is disabled and delicate and has required and
continues to require special care. The applicant is Scottish and the notice
party is Irish. Their relationship commenced in Ireland and they took up
residence and lived together in Ireland in 2002. They continued to live
together in Ireland until in or about August, 2005 when, as a result of
difficulties between them, the applicant moved with the children to rented
accommodation in Ireland, still in the vicinity of the notice party and it
appears access arrangements continued for the notice party. Both the
applicant and the notice party in their affidavits gave conflicting accounts
of the difficulties in the relationship and the inadequacies of the care
which each gave to the children. Both the applicant and the notice party
generally reject the criticisms levelled at them by the other in relation to
this aspect. On the applicant's account she, the applicant was in contact
with Irish social workers who were concerned at the effect of ongoing
disputes between the applicant and the notice party.
The applicant says that she left Ireland on the 29th March, 2006, with
the children having resolved that she and the children would reside in
Scotland and would not, for the foreseeable future, return to reside in
Ireland. She said that she had wanted to leave for some time before
matters came to a head at the end of March, 2006. She says that she
now lives on a temporary basis with her mother. On both the applicant's
account and the notice party's account, the accommodation in Scotland
appears to be cramped but the applicant says that she hopes to get
accommodation from the Housing Authority in Scotland in the near future
as her case is being considered by that authority as a medical priority.
She feels her move to Scotland was a good one and she intends to stay
there. The facilities available for the child R. and her needs, she claims,
are far more comprehensive than had been available while living in
Ireland. R. has been attending a nursery pre-school in Scotland near their
home since 15th May, 2006, and is transported by mini bus each day.
R. also attends regularly at a Disabled Children Association for weekly
activities for children and young people with various disabilities including
playgroups, outings, parties, summertime activities and has settled
extremely well in her pre-school and her Disabled Children Association's
sessions. She says that she had differences with the notice party's family
and that they took his side in disputes. The notice party contests this and
states that his family lived in the vicinity and were supportive and helpful
to the children.
The notice party makes various criticisms of the conduct, health,
background and temperament of the applicant and how these have
affected, and are likely to continue to affect, her care of the children. He
said that access had been arranged from the time the applicant went to
live apart from him in August, 2005, and that he endeavoured to have
that access as often as the applicant would allow. It was agreed that he
would take the children every weekend from Friday evening until Sunday
evening and that he would care for their needs, including physiotherapy
for R. three times a day, and would bring them to visit their paternal
grandmother in her nursing home.
However, until the departure of the applicant with the children to Scotland
in March, 2006 the notice party was not the guardian of the children.
On the 3rd May, 2006, the notice party issued applications to the District
Court in Ireland to be appointed guardian of the children and for custody.
The District Court summonses relating to said applications were served
upon the applicant at her address in Ireland and the applicant agrees that
she received same when she called back to Ireland to collect her and the
children's belongings. The application to the District Court was heard on
the 29th May, 2006, before which the applicant's solicitor wrote to the
District Court Clerk indicating that as the applicant and the children were
no longer living in Ireland when the proceedings were issued the District
Court did not have jurisdiction to hear the matter. When the matter was
heard the respondent District Judge heard and considered the arguments
of both parties in relation to the jurisdiction of the court on the basis that:
(a) the habitual residence of the children was Ireland and
(b) the habitual residence of the children was not the United Kingdom and
(c) no previous legal proceedings were pending in any other Member
State and on the 29th May, 2006, the order was made by the District
Judge to appoint the notice party as guardian of the two children.
Issues of custody and access were adjourned to 24th July, 2006. On 2nd
day of June, 2006 the applicant lodged an appeal against the order of the
District Court dated 29th May, 2006, and this appeal came on for hearing
in the Circuit Court on 21st July, 2006. This appeal was struck out and the
order of the District Judge dated 29th May, 2006, appointing the notice
party as guardian of the children, was affirmed by order of the Circuit
Court dated 21st day of July, 2006. The custody and access issue came
on before the District Court on an adjourned hearing on 25th September,
2006. The applicant was represented at that hearing by her solicitor and
an objection was again made on the basis of jurisdiction of the court. The
District Court ordered that the custody, care and control of the children be
given to the notice party by order dated 25th September, 2006. A notable
feature of the hearings leading to the orders dated 29th May, 2006, and
25th September, 2006, is that whereas the notice party gave evidence the
applicant did not attend and was represented only by her solicitor.
Both the applicant and the notice party in their affidavits set out a number
of factors indicative of the establishment, (or otherwise), by the children
of an habitual residence in the United Kingdom, some of which seem to
have been canvassed in the District Court on the hearing relating to the
jurisdiction of the court in May, 2006. Nevertheless I am satisfied, by
reason of the averment of the notice party, that the facts got "a good
airing" and that the District Court was in possession, by way of evidence
or account of the parties or their representatives, of a very substantial
proportion of the factual background surrounding the lives of the children
in both Ireland and the UK and the circumstances of their moving with the
applicant to the UK.
General Legal Background
Article 8 of the Council Regulation (EC) No. 2201/2003 referred to as the "
Brussels II bis Regulation Concerning Jurisdiction and the Recognition and
Enforcement of Judgements in Matrimonial Matters and Matters Relating
to Parental Responsibility Repealing Regulation (EC) No. 1347/2000
[2003] O.J. L338/1" sets out in Article 8 thereof the general jurisdiction of
the court as follows:
"1. The courts of a Member State shall have jurisdiction in matters of
parental responsibility over a child who is habitually resident in that
Member State at the time the court is seised.
2. Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12."
Article 2 of the Regulation deals with definitions, in particular paragraph 7
defines with the concept of parental responsibility as follows:
"The term 'parental responsibility' shall mean all rights and duties relating
to the person or the property of a child which are given to a natural or
legal person by judgment, by operation of law or by an agreement having
legal effect. The term shall include rights of custody and rights of access."
The terms 'holder of parental responsibility', 'rights of custody' and 'rights
of access' are defined in the following paragraphs 8, 9 and 10 as follows:
"8. The term 'holder of parental responsibility' shall mean any person
having parental responsibility over a child;"
The term 'rights of custody' shall include rights and duties relating to the
care of the person of a child, and in particular the right to determine the
child's place of residence.
"10. The term 'rights of access' shall include in particular the right to take
a child to a place other than his or her habitual residence for a limited
period of time.".
The Submissions
Mr. Power, counsel for the applicant, submitted that whereas formerly
the jurisdiction of the Irish court could rest on the presence of the child
within it and the submission of the parties to jurisdiction. He asserted that
that approach was not now applicable and that jurisdiction must now be
established within the strict confines of the Brussels II bis Regulation.
The question he submitted in this judicial review focused on whether
the District Court directed itself properly in assessing whether Ireland,
as a nation, had jurisdiction under the Brussels II bis Regulation when
the notice party issued his application to be appointed guardian and
gain custody of the children on the 3rd May, 2006. He stated that if the
children did not have an habitual residence in Ireland in May, 2006 then
the Irish courts did not have jurisdiction and therefore the District Court
in this case could not have jurisdiction and consequently that was an
error of jurisdiction based on an error of law which constitutes the classic
grounds for judicial review.
Mr. Power submitted that the applicant was the only person with
guardianship rights at the time of the issue of the summons in this
case on the 3rd May, 2006 and thus was the only person who could
lawfully direct where the children could reside. He relied on the dictum
of McGuinness J. in Re: C.M. (a minor): C.M. and O.M. v. Delegación
Provincial de Malaga [1999] 2 IR 363 where she stated at p. 381:
"…[I]t seems to me to be settled law in both England and Ireland that
"habitual residence" is not a term of art, but a matter of fact, to be
decided on the evidence in this particular case. It is generally accepted
that where a child is residing in the lawful custody of its parent (in the
instant case the mother), its habitual residence will be that of the parent.
However, the habitual residence of the child is not governed by the same
rigid rules of dependency as apply under the law of domicile and the
actual facts of the case must always be taken into account.
Finally, a person, whether a child or an adult, must, for at least some
reasonable period of time, be actually present in a country before he or
she can be held to be habitually resident there."
Mr. Power submitted that unlike the concept of domicile, habitual
residence does not have any specific dependency conditions. However,
he submitted that there is a recognised association between habitual
residence of children and that of their lawful guardian and referred to
in Re. B.(Minors) (Abduction) (No. 2) [1993] 1 F.L.R. 993 where it was
stated by Waite J. as follows at p. 995:
1. The habitual residence of young children of parents who are living
together is the same as the habitual residence of the parents themselves
and neither parent can change it without the express or tacit consent of
the other or an order of the court.
2. Habitual residence is a term referring, when it is applied in the context
of married parents living together, to their abode in a particular place or
country which they have adopted voluntarily and for settled purposes
as part of the regular order of their life for the time being, whether of
short or of long duration. All that the law requires for a 'settled purpose'
is that the parents' shared intentions in living where they do should have
a sufficient degree of continuity about them to be properly described as
settled.
3. Although habitual residence can be lost in a single day, for example
upon departure from the initial abode with no intention of returning, the
assumption of habitual residence requires an appreciable period of time
and a settled intention …. Logic would suggest that provided the purpose
was settled, the period of habitation need not be long.
This case was referred to with approval by the Supreme Court in P.A.S.
v. A.F.S. [2004] IESC 95: (Unreported, Supreme Court, 29th November,
2004). Mr. Power submitted that in the case of an unmarried couple where
the father is not guardian, the right to determine residence rests with the
mother.
Mr. Power conceded that jurisprudence in this area is not entirely settled.
For instance, habitual residence has been held to refer to residence in an
ordinary sense, or residence for a settled purpose and with some degree
of continuity. Some authorities have stated that it takes time to acquire
an habitual residence, but that it can be terminated quickly. The intention
of the party, in the instant case the mother, will also be relevant but not
overly so as that may confuse the issue with that of domicile. Mr. Power
referred to Swaddling v. Adjudication Officer (Case C-90/97) [1999] ECR
I-1075 in which the European Court of Justice stated that the habitual
residence referred to the State in which persons habitually resided and
where the habitual centre of their interests were to be found. The ratio
of that case concerned a national social security decision which held that
before a person who lawfully moved from one Member State to another
was habitually resident in the second Member State he had to reside
there for an appreciable period of time, in that case eight weeks. The
European Court of Justice held that the definition of 'habitual residence'
did not permit the application of a criterion concerning residence for an
appreciable period of time in that instance eight weeks. Mr. Power referred
to the English case Re. F. [1992] 1 F.L.R. 548 where it was decided that
less than a one month residence was enough to found a new habitual
residence. He offered a helpful quotation from the judgment of Thorpe
L.J. in the case Al Habtoor v. Fotheringham [2001] 1 FLR 951, where he
said as follows at p. 963:
Turning to the case-law defining habitual residence there is little room for
disputing a number of relatively straightforward propositions. First, the
determination of a persons habitual residence is a question of fact to be
decided by reference to all the circumstances of the case … '…"ordinarily
resident" refers to a man's abode in a particular place or country which
he has adopted voluntarily and for settled purposes as part of the regular
order of his life for the time being, whether of short or of long duration.
Lord Thorpe goes on to refer to Akbarali v. Brent London Borough Council
[1983] 2 A.C. 309 where Lord Scarman stated at p. 344 that "All that the
law requires is that there is a settled purpose. That is not to say that the
"propositus" intends to stay where he is indefinitely; indeed his purpose,
whilst settled, may be for a limited period." Lord Thorpe proceeds to state
at p. 963:
Secondly, there is an important distinction between the loss of an habitual
residence and the acquisition of a substitute. A person may cease to be
habitually resident in a single day if he quits the country with a settled
intention not to return but to take up habitual residence elsewhere. By
contrast habitual residence in the second country is not acquired on
arrival but only after a period that demonstrates that the residence has
become habitual and is likely to continue to be habitual depending upon
the relevant facts and circumstances. The period of residence after arrival
may be brief but it still must be appreciable.
Mr. Power submitted that on the facts it was clear that if the state of
habitual residence was Scotland by the 3rd May, 2006 the return for
the limited purpose and time by the applicant mother would not change
it back to Ireland. He submitted that the country of Scotland was the
country of habitual residence for a "settled purpose" in the instant case at
the relevant time; the factors that led to this conclusion include:
1. The applicant and children ceased to reside in Ireland and decided to
return to Scotland for good.
2. The applicant is from Scotland as are the children's extended family
who reside there.
3. The applicant took the children with her and was the only person then
lawfully entitled to make such a decision in relation to the children.
4. The move was influenced by the necessary social services available to
one of the children in Scotland on an ongoing basis and the fact that such
a service was not available in this State. The decision to move was also
influenced by the respondent's assaults. The applicant returned to Ireland
only to collect belongings which demonstrated that since the move the
children have in fact resided in Scotland as a matter of ongoing habit.
5. Matters occurring after the relevant date are consistent with the
applicant and her children having acquired a habitual residence in
Scotland.
6. The applicant and her children have abandoned their habitual residence
in Ireland.
Mr. Power submitted that the Brussels II bis Regulation required legal
certainty in relation to jurisdiction and that the lack of guardianship status
of the notice party certainly precluded the respondent district judge
from determining and accepting jurisdiction for the Irish Court under the
regulation.
Ms. Courell, B.L. counsel on behalf of the notice party, argued that it is
not for a court hearing an application for judicial review to consider to
take on an appellate jurisdiction and cited the cases State (Keegan) v.
Stardust Victims Compensation Tribunal [1986] I.R. 642 and the Supreme
Court decision in Devlin v. Minister for Arts Culture and Gaeltacht [1999]
1 IR 47. She cited with approval of the oft quoted passage from Lord
Brightman in the case of Chief Constable of the North Wales Police v.
Evans [1982] 1 W.L.R. 1115 in the case Lennon v. District Judge Clifford
[1992] I.R. 382. where the following passage from the judgment of Lord
Brightman is cited at p.:
Counsel cited the following passage from Lennon v. District Judge Clifford
[1992] I.R. 382 where O'Hanlon J. stated at p. 386;
"The general tenor of the decisions is that the High Court is not available
as a court of appeal from decisions of other tribunals except where it
is given such a function by statute, and that the scope of challenging
the validity of orders made by lower courts by way of judicial review
proceedings is confined to those cases where reliance can be placed on
want of jurisdiction, or excess of jurisdiction; some clear departure from
fair and constitutional procedures; bias by interest; fraud and perjury; or
decisions containing an error of law apparent on the face of the record."
Ms. Courrell J.C., referred to the use of the Fordham checklist for judicial
review proceedings as quoted in Bradley, Judicial Review, (Dublin, 2000)
at p. 223 and emphasised that the existence of a factual dispute between
the parties is not amenable to judicial review procedure. She submitted
that habitual residence was a matter to be determined on the facts of
each case and the applicant was seeking in this case to use judicial review
as a complete hearing of the facts.
It was submitted that judicial review should only be used when there is no
alternative remedy available and in this context it was submitted that the
applicant appealed to the Circuit Court in relation to the District Court's
decision dated the 29th May, 2006 and that the District Court decision
was affirmed by the Circuit Court on the 21st July, 2006.
She submitted that in any event judicial review should be denied in
this case by reason of the failure by the applicant to act promptly and
the failure to justify the delay citing Regina v. Independent Television
Commission, ex parte TV NI Limited [1991] T.L.R. 606,, Riordan v.
An Taoiseach (No. 2) [1999] 4 IR 343. and Riordan v. An Taoiseach
(No.1) [1999] 4 IR 321 and also Director of Public Prosecutions v. Judge
McDonnell (Unreported, Barr J. October 1990) where Barr J. stated as
follows: -
"The obligation to apply promptly for such relief is a primary requirement
which ought not be ignored and where, patently, prompt application has
not been made then an explanation for the delay should be put before
the court. In the present case the application was a simple one arising
out of undisputed facts which raised a net issue of law. In the absence of
any explanation for delay in making the application until the last possible
date within the rule, I am compelled to hold that the application was not
made promptly, and, therefore, the applicant failed to comply with the
requirements of the rule and has disentitled himself to the relief which he
seeks."
It was submitted that in regard to proceedings involving questions of
parental responsibility it is in the interest of justice and respect for family
life, as defined in the constitution and the European Convention on
Human Rights, that the applicant act promptly.
In her extensive written submissions Ms. Courell reviewed the provisions
of the Brussels II bis Regulation in relation to the concept of habitual
residence and the provisions of the regulation in relation to jurisdiction.
She said that the concept of 'habitual residence' which is increasingly
used in international conventions is not defined by the regulation despite
the fact that it is the primary connecting factor in the legislation. She
refers to the academic commentary expressed in Dicey and Morris, The
Conflict of Laws, 12th Ed., (London, 1993) at pp. 161 – 163.
She submitted that according to the practice guide for the application of
Brussels II bis, which was drawn up by the Commission in consultation
with the European Judicial Network and Civil and Commercial Matters,
the absence of a definition of 'habitual residence' was a deliberate policy
decision, one made to prevent 'habitual residence' becoming a legal term
of art, weighed down by judge made accretions, as has happened in the
nebulous term "demi domicile". Instead it was left to the courts of the EU
to construe its meaning on a factual case by case basis. Article 3(1)(a)
(in relation to divorce proceedings) provides that the habitual residence
may be acquired after just one year habitual residence in the jurisdiction
or following as little as six months habitual residence when combined
with the person's nationality or domicile prior to the institution of divorce
proceedings. There are no satisfactory guidelines either in the regulation
or from the European Court of Justice as to what actually constitutes
'habitual residence'.
There followed in the written and oral submissions of Ms. Courrell an
extensive examination of the meaning of the term 'habitual residence' as
drawn from other international treaties. She submitted that the issue of
habitual residence is a question of fact and that the District Court judge
made correct findings of fact on the evidence before her and correctly
applied the law to these facts. She submitted that since Brussels II bis
requires the court to use its preliminary jurisdiction to determine the issue
of substantive jurisdiction, it is not sufficient for legal representatives to
assert that the court does not have jurisdiction. Ms. Courrell submitted
that it would have been wrong of the District Court judge to decline
jurisdiction in circumstances where no oral or affidavit evidence was
before the court and the notice party had no opportunity to cross examine
the applicant's allegation in relation to the children's habitual residency.
Otherwise, the jurisdiction of the District Court to decide the preliminary
issue is completely undermined and this goes against the principle of
the Brussels II bis Regulation which was to ensure equal respect and
recognition for the judgments of the courts of all Member States.
She stated the loss of habitual residence in Ireland would only have
occurred after habitual residence had been acquired in Scotland and this
had not yet happened and referred to F.L. v C.L.(Unreported, High Court,
Finlay Geoghegan J., 25th January, 2006). She submitted that if habitual
residence had been acquired in Scotland this does not mean that the Irish
habitual residence was lost and she refers to the case of Mark v. Mark
(House of Lords) [2005] 3 WLR 111, which is authority for the proposition
that one may have habitual residence for the purpose of jurisdiction. She
further submitted that the facts which supported that submission were
set out in the affidavit sworn by the notice party dated the 11th January,
2007.
In relation to what Ms. Courrell referred to as the substantive argument
regarding the judicial review in the instant case, she submitted that since
the interpretation of the phrase 'habitual residence' is not a term of art
but rather is to be determined as a question of fact, it is difficult to see
how one could classify her conclusion that she had jurisdiction as been
erroneous in law. She submitted that the facts before the District Court
judge supported her decision. In this regard Ms. Courrell placed reliance
on the judgment of Morris J. (as he then was) in Farrelly v. Devally [1998]
4 IR 76. In refusing relief claimed, Morris J. stated at p. 82:
"There can be no doubt that the first respondent had jurisdiction to
embark upon the consideration of the this District Court appeal and what
the issue comes down to is a consideration of whether his decision was
so obviously incorrect as to deprive them of jurisdiction. Put another
way, this Court has to consider whether in the words of the Law Lords
in Anisminic v. Foreign Comp. Comm. [1969] 2 AC 147, approved by
McMahon J. in the [State (Cork Circuit Court) v. Fawsitt (Unreported,
High Court, McMahon J., 13th March, 1981)], there has been 'an extreme
example of an error of law'. It appears to me that what this Court
must consider is whether the facts of the case as presented to the
first respondent could under any circumstances have justified the first
respondent in reaching the decision he did. If there is no basis upon which
he could have been justified then this Court should hold that there was a
jurisdictional error. If there was a basis upon which he would have been
justified in holding as he did it should not intervene."
In this case Ms. Courrell submitted that there had been no such extreme
error of law and the facts provide a basis upon which the District Court
judge could have reached the conclusions which she did.
Conclusions.
The decision of a court when making a decision in relation to jurisdiction
under Brussels II bis on habitual residence is one of mixed fact and law –
perhaps predominately fact. It is a question to be determined by the court
taking into consideration a multiple of factors and in each case, within
that multifactoral context, each of the factors may be given a different
weight from case to case. I am satisfied that none of the circumstances
as described in the judgment of Morris J. in Farrelly v. Devally, as
cited by Ms. Courrell in her submissions, arise to lead this court to set
aside the decision of the learned District Court judge in relation to her
determination of jurisdiction. The legal parameters set out by McGuinness
J. in the C.M. v. Delegación Provincial de Malaga case, as refined by
the High Court, were clearly met by the District Court decision sought
to be impugned. In reaching the foregoing conclusions, of which I am
strongly convinced, I took time to consider all of Mr. Power's arguments
and especially his argument that the issue of jurisdiction required legal
certainty and that that certainty was provided overwhelmingly by the
fact that the notice party father was not the legal guardian whereas the
applicant mother was the legal guardian entitled to the benefit of s. 10 (2)
para. (a) of the Guardianship of Infants Act 1964 as the person who
"…shall, as against every person…be entitled to take proceedings for the
restoration of his custody of the infant against any person who wrongfully
takes away or detains the infant and for the recovery, for the benefit of
the infant, of damages for any injury to or trespass against the person of
the person of the infant."
I have some sympathy with Mr. Power's quest for certainty in relation to a
matter of jurisdiction. The Irish experience in relation to many instances
of jurisdiction, like the requirement in equity cases of a rateable valuation
under £100 or its equivalent, gives rise to a black and white, almost
binary "yes or no", issue in relation to the question of the jurisdiction
of the Circuit Court in relation to many equity matters. Even where
there is a chance of concurrent jurisdiction of the Circuit Court in two
different counties or circuits as in the case of a claim in tort where
the venue may be where the defendant resides or where the tort was
committed, the issue is not very complicated and once a court in a
particular county accepts jurisdiction the issue after resolution of conflict
questions becomes black and white again. Mr. Power's argument thus
could be characterised by a rush to certainty as to jurisdiction based
on the bedrock of the rights of the applicant under the Act of 1964. He
was buoyed in his view by the manner in which the Supreme Court have
upheld the prior rights of the mother as against the natural father who is
not a guardian. However even in this respect the court has to have regard
to the fact that the Supreme Court have in certain instances recognised
the rights of the natural father, for instance access rights, not as a rule
of law but as a 'rule of prudence'. In the situation where an informal
relationship has evolved between father and children, such as in this
case, the 'rule of prudence' is a matter to be taken into account by the
District Court in determining jurisdiction especially having regard to the
general tenor of the Brussels II bis Regulation which prioritises the child's
interests. It is of some interest to note that the forms provided for District
Court applications allow for applications by parents (fathers) who are not
legal guardians.
In fairness, the so called rush to certainty in deciding jurisdiction may not
only be an Irish/common law pre-occupation. The interest in certainty is
given a European dimension as well – for example in the Commission's
Green Paper on applicable law and jurisdiction in divorce matters
presented on the 14th March, 2005 (COM(2005)82 final) at para. 2.1. p.
3 under the heading of "Lack of legal certainty and predictability for the
spouses" in relation to the conflict of law rules divorce matters is it stated:
"Considering the difference between, and complexity of, the national
conflict-of-law rules in divorce matters, it is often difficult to predict which
national law will apply in a given case. This is particularly the case in
family situations where the spouses have no common habitual residence
or nationality, but the problem may also arise when couples of the same
nationality split up and move to different Member States."
This shows a concern for lack of legal certainty, certainly in relation to
'conflict-of-law rules' following Brussels II bis.
I consider that the rush to certainty of jurisdiction is met within the
scheme of the Brussels II bis regulations, not by reason of the emergence
of certain answers in relation to the criterion of habitual residence, but in
relation to this certainty of outcome once proceedings have been initiated
in any of the Member States. This certainty of outcome is exemplified by
the comment in the supplement to "International Movement of Children"
– the new Brussels 2 bis Regulation by Nigel Lowe, Mark Everall Q.C. and
Michael Nicholls Family Law, 2005 on p. 22 as follows: -
"5.24 The new Brussels 2 will not, however, put an end to all parallel
actions. But where two actions are brought concurrently, then, under the
terms of Article 19(2) and (3) it is the court first (properly) seized that
has priority."
The court second seized is required of its own motion to stay any
proceedings until the court first seized decides whether it has jurisdiction.
If it does so decide, the second court must then dismiss the application.
The rigour with which the European Court of Justice applies the policy of
the procedure described in my view is highlighted in the decision relating
to similar procedures under the Brussels Convention on the recognition
and enforcement of judgments in civil and commercial matters in Case
C-351/89 Overseas Union Insurance Limited v. New Hampshire Insurance
Company [1991] E.C.R. I – 3317.
In Stone, EU Private International Law (2006) at p. 385 the author states:
-
"… assistance in the interpretation of the Brussels II and IIA Regulations
can be obtained from the Borrás Report on the Brussels II Convention."
I have read the Borrás Report [1998] O.J. C 221/27 when considering the
question as to certainty of jurisdiction and I am satisfied that the purpose
of the Brussels Convention and hence the Brussels II bis Regulation was
to prevent forum shopping and the uncertainty of parallel proceedings
and, in relation to issues of parental responsibility, to provide a forum
which would more properly serve the interest of the child than others
available under wider 'conflict-of-law rules'. I am satisfied that the
interests of certainty are met to a limited extent not by reason of the
inherent qualities of the criterion of 'habitual residence' but by reason of
the rigorous and strict enforcement of the decision of the court first seized
in relation to jurisdiction. In practical terms in applying this principle to
the present case, it would seem to me that, in the event of proceedings
having been initiated by the applicant in Scotland a short time after
the initiation of the Irish proceedings but before consideration of the
jurisdiction issue by the Irish court, there might be two different views
validly held in relation to the jurisdiction of either court- just as Mr.
Power was able in this case, to argue the second view in relation to
the jurisdiction of the Irish court. However, in the event of the Irish
court deciding and accepting the jurisdiction under the Brussels II bis
Regulation then the Scottish court would have been obliged to stay the
Scottish proceedings and decline jurisdiction notwithstanding that the
Scottish court might take the second view. The rigour and certainty of
this result is underpinned, as is explained in the Borrás Report, on the
acceptance by the Member States that the courts in each Member State
are equally capable and competent in dealing with family law matters - a
strengthened view of the concept of comity of courts. Once this process
is concluded, then the rush for certainty as to jurisdiction is then fully
served. It is this concept of certainty, arising from the strict application
of the Convention, which in my view should govern the examination of
the questions raised in this case and the version posed by Mr. Power.
This certainty of result in relation to jurisdiction is further authority for
my decision in refusing judicial review as it would justify it even in the
absence of the line of authorities exemplified in the Farrelly v. Devally
case cited above. The question must be posed as to why a Scottish judge
should be bound to accept the decision of the Irish court in relation to
the jurisdiction on parental responsibility in the hypothetical example
discussed by me if the Irish court was free to judicially review the decision
on less rigorous criteria than the scheme envisaged by Brussels II bis. To
allow a less rigorous scheme for judicial review would be to undermine
the Brussels II bis Regulation and be contrary to Irish obligations under
the regulation.
The timeliness of application.
In Irish domestic law, time is of the essence where the interests of infants
are concerned. The position is no less rigorous under the regime of
Brussels II bis.
The 1980 Hague Convention on the Civil Aspects of International Child
Abduction dealing with applications for the return of abducted children is
now intertwined with Brussels II bis and provides very strict time limits
for courts to deal with applications for the return of abducted children. In
Stone, EU Private International Law, (2006), the author has stated that
the provisions of Brussels II bis relating to references in certain instances
by the courts of Member States to questions for decision by the European
Court of Justice as being "absurd" by reason of the necessarily long delays
in current reference procedures before that court and having regard to
the interest of children in the speedy resolution of disputes relating to
them. I am satisfied that the application in this case was not made in a
timely fashion. It was made only after the Circuit Court had decided on
guardianship and access issues and there has now elapsed in the lives
of the children concerned in this case an unacceptably long time. The
hearing of this case was probably expedited by the decision of McKechnie
J. when dealing with the judicial review list to refer it for hearing to the
family law court where speedy arrangements were made for the hearing.
Accordingly if I had not refused the application for judicial review on the
substantive grounds I would nevertheless had refused it on the basis that
the application was not made in timely fashion. This view is in line with
the judgment of Barr J. in the DPP v. McDonnell (Unreported, High Court,
Barr J., 1st October, 1990)
During the course of the arguments in court Mr. Power suggested that the
court would give directions in relation to how the courts should decide on
issues of jurisdiction under Brussels II bis. There had been criticism in this
case that the applicant did not give evidence, but was represented by her
solicitor. I am not satisfied that the situation should be trammelled by any
directions given by the court. The situation would seem to be analogous
to the informal and summary procedure used by the District Court in
deciding at the commencement of the hearing of a criminal charge
whether the charge relates to a minor offence which may be dealt with in
the District Court. In many such instances the enquiry is limited only to
hearing informally from the Gardaí or prosecution authorities in relation
to an outline of the facts. Of course subject to the discretion of the judge
a more detailed and forensic enquiry may be directed in certain cases.
What happened in this case seems to be roughly analogous to that type
of approach in criminal cases and I see nothing wrong with it. If I were
to make comment on procedures relating to this matter I would prefer to
express my view that questions must be asked as to the appropriateness
of the low threshold test for obtaining liberty to seek judicial review,
and the lack of any necessity to put the parent or the representative of
the child on notice that the application is to be made. The Guardianship
of Infants Act 1964 and the Constitution provides that the interests of
the child are paramount. The Brussels II bis Regulation echoes these
provisions. I see great difficulty in recognising the paramountcy of the
interest of the child with the ex parte low threshold procedure by which
judicial review proceedings are commenced. However, I do not think
that it is appropriate for me to the provide any guidelines or directions in
relation to these matters – it is a matter perhaps for the Rules Committee
or the legislature to examine the circumstances arising in cases such as
this and to provide the appropriate procedures.
One matter which is entirely outside the scope of the judicial review
but which, following from an extensive reading of the papers in the
case, arises from the enforcement documentation prepared by the Irish
authority is the issue as to whether the voice of the child was heard,
and if not, why not. I consider that the parties should be advised by the
court, and in the interests of the court in ensuring the free movement of
judgments as envisaged by the Brussels II bis Regulation, to seek to have
this matter addressed in whatever way they are advised.