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Children returned to England were habitually resident there
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Court of Appeal dismisses appeal and upholds a decision of the High Court refusing to grant consequential orders directing the return of the appellants' children to this jurisdiction, and further directing the transfer of any substantive proceedings extant before the courts of England and Wales concerning the children to this jurisdiction, following its earlier decision to allow an appeal and set aside a previous order made ex parte by the High Court to recognise and enforce an order of the High Court of England and Wales in relation to the return of the three children of the appellants, on the grounds that: (a) the trial judge correctly found that the removal of the eldest children was incapable, on the facts, as a unilateral act of the appellants of such short duration, of giving rise to a change in their habitual residence which remained at all times that of England and Wales; (b) the youngest child's presence in Ireland, based on the facts, was so precarious as to prevent it from acquiring the necessary quality of stability to enable a change in habitual residence from England and Wales; (c) no sound basis was demonstrated for the proposition that the courts in this jurisdiction were best placed to make determinations regarding the welfare of the three children or any of them beyond the deep wishes of the appellants that the three children would reside in Ireland with them and their new-born child; (d) the court could not be satisfied on the evidence that the transfer back to Ireland that was sought would not be liable to be detrimental to the situation of the three children and therefore not in their best interest; and (e) the trial judge considered the egregious conduct of the respondent but he correctly gave pre-eminent weight to the rights and interests of the children in question in the exercise of his discretion.
Whelan J (nem diss): Family law - habitual residence - Chapter III of Council Regulation (EC) 2201/2003 ("the Regulation") - appeal of a decision of the High Court refusing to grant consequential orders following an earlier decision to allow an appeal and set aside a previous order made ex parte by the High Court recognising and enforcing an order of the High Court of England and Wales (“the Return Order”) made pursuant to the Regulation in relation to three children - appellants sought consequential orders directing that the children be returned to Ireland and further a direction to transfer any substantive proceedings now extant before the courts of England and Wales concerning the children to this jurisdiction pursuant to Article 15 of the Regulation - a long history of litigation between the parties - the appellants are UK nationals who arrived in this State on the 5th September 2017 with three young children - the first appellant is the mother of all 3 children - the second appellant is the father of the youngest child only - the appellants moved to Ireland for the primary purpose of preventing the youngest child being taken into the care of the respondent - care orders had been made in relation to the two eldest children - the appellants were ultimately taken into care by the Child and Family Agency following an interim care order - an ex parte application was granted by the High Court recognising the English Return Order following legal submissions - later that day the children were returned to England where the two eldest were placed in the care of their father and the youngest child was placed in foster care - the High Court overturned the ex parte order for the recognition of the English Return Order as it was made in circumstances where one or both appellants, having parental responsibility for the children, did not have an opportunity to be heard, as required by Article 23(d) of the Regulation - the High Court accepted that it did have jurisdiction to make the orders sought but that this was a discretionary jurisdiction which should be exercised only where it is appropriate to do so having regard to all the circumstances of the case - whether the trial judge erred in the exercise of his discretion as to whether or not to make consequential orders - whether the children were habitually resident in England and Wales - whether there was an effective remedy for the breach of the appellants' rights - the court noted that while the conduct of the respondent was egregious, the inherent jurisdiction ought not to be exercised in relation to the children for the purposes of directly or indirectly punishing past transgressions of the respondent - whether transferring the children was in their best interest - trial judge exercised his discretion appropriately in refusing to grant the consequential orders - appeal dismissed.
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