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Home > Judgments

Casey v Cervi [2017] EWHC 1669 (Fam)

Appeal relating to orders recognising and enforcing a previous order made in the Republic of Ireland which transferred the sole custody of a three year old child, E, to her father. At the time that the order was made, E had been living in England with her mother for a year together with her half-sister.

This appeal relates to orders made in November 2016 in the Central Family Court, which recognised and enforced a previous order made in the Republic of Ireland. The Irish order, which was made in January 2016, transferred the sole custody of a three year old child, E, to her father. At the time that the order was made, E had been living in England with her mother for a year along with her half-sister, S.

Whilst various applications had been made or contemplated throughout proceedings, two applications also remained pending in the Irish court: (a) the mother's appeal against the order made in January 2016; and (ii) the father's application to strike out that appeal. These were adjourned pending the outcome of the English appeal. The court did not however sit as a tribunal of review in relation to the Irish order and its substantive merits: the issue to be determined was whether that order should be recognised and/or enforced by the English court.

Background
The mother had been E's primary carer until the onset of proceedings, the parties having separated shortly after E's birth. The father had regular contact with E until Christmas 2015, following which the mother took both children to England in January 2016. The mother ascertained that she did not require the consent of E's father to move and did not give advance warning of her decision to do so but notified him four days after moving of her new location. The mother's case is that she relocated partly due to domestic violence issues relating to S's father and was not prepared to return to Ireland.

The father swiftly made an application to the Irish court for guardianship of the child, with a subsequent application referring to 'Guardianship/Access/Custody'. The mother was not served with notice of proceedings in England or court papers but a letter was sent from the father's solicitors care of an aunt in Ireland, at which point the mother instructed a solicitors' firm in Ireland. A solicitor attended on the mother's behalf in Ireland without having spoken directly to the mother or having received court papers and in the apparent belief that the father's application only related to guardianship. The father was subsequently granted custody on that occasion, the mother's offers of contact having been rejected as insufficient.

On the mother's case, she only became aware of the result of that hearing, and of subsequent correspondence between the Irish solicitors, in April 2017. Although the parties had been in communication, Mrs Justice Roberts accepted that the mother was unable to elicit an unequivocal response from the father on the nature of his application and that there was insufficient time for the mother to clarify the position with her own solicitor or to give full instructions.

Legal framework and determination
The registration and enforcements of judgment or orders made in Member States who are parties to Council Regulation (EC) No 2201/2003 (Brussels II Revised Regulation 2003) ('Brussels IIR') are governed procedurally by Part 31 of the Family Procedure Rules 2010 in English law. In the context of parental responsibility, Articles 21 to 26 of Brussels IIR are engaged. Under r.31.17(1A) and r.31.11, a court is entitled to make an order for enforcement (as opposed to registration) before the expiration of the relevant time limits but only 'where urgent enforcement is necessary to secure the welfare of the child to whom the judgment relates'. In November 2017, DJ Aitken both orders (recognition and enforcement) on the same occasion.

The mother's substantive case was based upon Article 23 (b), (c) and (d) of Brussels II. Article 23(b) considers whether was made without an opportunity for the child to be heard, posing three questions:

(a) Was the order given in a case of urgency?

(b) If not, was the child given an opportunity to be heard?

(c) If not, does that failure amount to a violation of fundamental principles of procedure in this jurisdiction?

Mrs Justice Roberts found that the obligation to provide the child with an opportunity to be heard was clearly engaged and notes that "in every case the court is required to ensure that the child is given the opportunity to be heard. That means asking the questions, 'whether and if so how is the child to be heard' … It is not the answer that is key to the question before this court but the fact that the question must be asked". The legal principles surrounding the voice of the child are summarised, as well as the approach to be taken in the case of young children, and the approach of Re D (A Child) International Recognition) [2016] EWCA Civ 12 endorsed. Mrs Justice Roberts concluded that E's voice was not heard in the Irish proceedings and that therefore the order of January 2016 is not entitled to recognition as a matter of English law.

The Article 23 (c) and (d) grounds (judgment in default of service or insufficient time to arrange for a defence and/or lack of an opportunity to be heard) were also considered, raising the following three questions:

(a) Was the judgment given in default of an appearance by the mother?

(b) Was the mother served in sufficient time to arrange her defence?

(c) Has she accepted the judgment unequivocally?

The issue for the judge, as per Re D, was whether the mother's rights were sufficiently protected as a result of the procedure adopted by the Irish court so as to safeguard her right to a fair hearing and her rights of defence. It was determined that the father had failed to make out his case on the balance of probabilities in this respect and declined to accord recognition to the order of January 2016. The mother had also relied upon procedural points relating to the registration of the Irish order: Mrs Justice Roberts accepted the father's submission that these irregularities should be waived.

Given the above, it was not deemed necessary to consider whether the Irish order was manifestly contrary to public policy taking into account the best interests of the child. The 'fundamental importance of the Convention's objections of comity and mutual trust as between Member States was noted.

Summary by Lyndsey Sambrooks-Wright, barrister, 2 Dr Johnson's Buildings
___________________________________

Neutral Citation Number: [2017] EWHC 1669 (Fam)
Case No: 2017/0040

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 05/07/2017


Before :

MRS. JUSTICE ROBERTS

- - - - - - - - - - - - - - - - - - - - -

Between :

CAOIMHE MARY CASEY
 Appellant
- and - 
CARL PAUL CERVI Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr. Nicholas Anderson
(instructed by Williscroft & Co, Solicitors) for the Appellant
Miss Clare Renton
(instructed by MW Solicitors) for the Respondent

Hearing dates: 24 May 2017
- - - - - - - - - - - - - - - - - - - - -

Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
.............................

MRS. JUSTICE ROBERTS
This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

Mrs. Justice Roberts :
A. Introduction
1. This appeal concerns orders made on 7 November 2016 by District Judge Aitkin sitting as a District Judge of the High Court in the Central Family Court in London ("the English orders").  Those orders gave recognition to, and permitted enforcement of, an order made on 28 January 2016 by Judge Flann Brennan sitting in the Dundalk District Court in the Republic of Ireland.  By his order ("the Irish order"), the judge transferred the sole custody of a three year old child, E, to the father who is the respondent to this appeal.  He lives in Dundalk, County Louth in Ireland.  At the time the order was made, E was living in England with her mother, the appellant, a state of affairs of which had existed for over a year, the parties having separated shortly after her birth.

The legal framework of the appeal
2. The father issued his application for registration and enforcement of the Irish order on 21 October 2016.  The English orders were made without a hearing.   The registration and enforcement of judgments or orders made in Member States who are parties to Council Regulation (EC) No. 2201/2003 (Brussels II Revised Regulation 2003) ("Brussels II Revised") are governed procedurally under English domestic law by Part 31 of the Family Procedure Rules 2010.  Since this case involves decision-making in the context of parental responsibility for a child, Articles 21 to 26 of Brussels IIR are engaged. 

(i) Article 21(1) provides that a judgment given in a Member State shall be recognised in another Member State without any special procedure being required.  Article 21(2) permits any interested party to apply for a decision in another Member State that a judgment or order made in a different Member State be (or not be) recognised.

(ii) Article 23 (a) to (g) contains seven grounds on which a judgment shall not be recognised.

(iii) Article 24 provides that the jurisdiction of the court of the Member State of origin (in this case the Republic of Ireland) may not be reviewed as to its substance.

3. Under English law, formal registration in accordance with domestic procedure is a necessary precondition to enforcement.  Under r.31.11 FPR 2010,

"(1) Where the court has –

(a) made an order on an application for an order that a judgment should be registered for enforcement …

(b) …….

(c) the court officer will as soon as practicable take the appropriate action under paragraph (2) or (3).

(2) ………

(3) If the court orders that the judgment should be registered for enforcement, the court officer will –

(a) register the judgment in the central index of judgments kept by the principal registry;

(b) confirm on the order that the judgment has been registered; and

(c) serve on the parties the court's order endorsed with the court officer's confirmation that the judgment has been registered.

4. Rule 31.12 FPR 2010 provides that the effect of such registration is sufficient for the purposes of Art 21(3) of Brussels II Revised (see above). 

5. By virtue of r 31.15, an appeal as of right may be made to a High Court judge within two months of the date of service of the notice of registration if the party appealing is resident in another Member State.  Under r 31.16(1)(b), the appellate court may order a stay on the enforcement of the order from the originating Member State provided that the time for an appeal has not yet expired.  In this case, the appellant's notice was filed on 24 February 2017.  Nevertheless, she brings her appeal as of right pursuant to r 31.16(1)(b) because she has lodged an appeal in the Republic of Ireland together with a request for an extension of time.  In this jurisdiction, Baker J granted a stay of the Irish order by his order in these proceedings dated 11 April 2017.  Under r 31.17(1A), a court is entitled to make an order for enforcement (as opposed to registration) under r 31.11 before the expiration of these time limits but only "where urgent enforcement is necessary to secure the welfare of the child to whom the judgment relates". 

6. In this case, District Judge Aitkin made both orders (recognition and enforcement) on the same occasion.  There is nothing on the face of the order for enforcement explaining the basis for her (presumed) view that this was a situation of urgency so far as E's welfare was concerned.  This is not in any sense a criticism of the District Judge.  I was told during the appeal hearing that the process in the principal registry is frequently conflated in this way.

7. In addition to his application for recognition and enforcement of the Irish order, the father has issued an application under the Child Abduction and Custody Act 1985 pursuant to Brussels II Revised whereby he seeks a substantive order for E's return to the Republic of Ireland.  That application was issued on 18 February 2016.

8. Before turning to the grounds of this appeal, I propose to set out briefly the circumstances in which the Irish order was made.

B. Background
9. E's father, the respondent to this appeal, is 26 years old.  Her mother, the appellant, is 25.  They never married but were, for a short time, engaged to one another.  The relationship foundered shortly after E's birth.  She has lived with her mother throughout her life and, until the onset of these proceedings, the father acknowledged the mother's role as E's primary carer.  However, he remained involved in his daughter's life and saw her about once every three weeks following the breakdown of the parental relationship.  By the time E moved to England with her mother, the father's contact appears to have increased and he saw E on two or three occasions a week.   According to the mother, he last saw E on Christmas Day 2015.  She has another child, E's half-sister, S, who is now 9 years old.  The two children have grown up together in the same home and, as far as I am aware, have never been separated one from the other in terms of their living arrangements.  They are, to that extent, bonded half-siblings.  Each has looked to the mother throughout their young lives to provide not only for their day to day needs, but also the security of a home environment.  The father implicitly acknowledged this state of affairs when the parties separated, notwithstanding that the agreement between them as E's parents put in place a settled routine of fairly regular contact in Republic of Ireland.

10. In the early part of January 2016, the mother left the Republic of Ireland with the two children and took up residence in the North of England. She maintains that she did so in order to give the family a better life.  A significant factor in her decision to move was her fear of a former partner (the father of S).  There was a history of domestic violence throughout that relationship and beyond its demise according to the mother.  S's father, Mr A, had been in and out of prison on several occasions and had been found guilty of an assault on a six week old baby, the child of a subsequent partner.  Shortly before she left Republic of Ireland, Mr A had assaulted the mother and, according to her evidence, had threatened to burn down her home with the children in it.  Having resolved to put distance between herself and Mr A, the mother made enquiries about her ability to move without E's father's consent.  She ascertained that, because he had no parental responsibility at the time under Irish domestic law in spite of being registered on the birth certificate as E's father, she did not require his consent.  She accepts that she did not give the father any advance warning about her plans but maintains that she intended to explain her decision once she had settled the children into their new home.  As is confirmed by an exchange of texts exhibited to her statement, she notified him of her whereabouts within four days of her arrival in England and told him that she was staying in Bradford.

11. That chain of text messages records his intention forthwith to secure a port alert.  He issued his application to the Irish court in Dundalk on 14 January 2016.  That application (in its first draft manifestation) was in respect of guardianship pursuant to s 6A of the Guardianship of Children Acts, 1964 to 1997.  A subsequent application (undated and unsigned) referred to "Guardianship / Access / Custody and Application to be appointed a Guardian of [E] …".

12. On 14 January 2016, at a without notice hearing, Judge Brennan abridged time for service of the application on the mother and listed a further hearing on 21 January 2016.

13. As the text messages between the parties confirm, the father was by this stage aware that the mother had left the jurisdiction and was living in the North of England with E.  In terms of effecting service of the proceedings on her, his Irish solicitors, McDonough & Breen, took no steps to ascertain her whereabouts in England.  They did not seek an order for substituted service within the jurisdiction of Republic of Ireland.  Instead, they wrote to the mother, care of her aunt, at an address in Dundalk.  That address was the home of her aunt whom they mistakenly addressed as "RC" when, in fact, her name was "RD".  The letter addressed to RD was framed in these terms:-

"We enclose herewith sealed letter addressed to [the appellant mother] and you might kindly contact [her] and inform her of the urgency of the attached letter as there is a Court Hearing listed for Dundalk District Court on 21 January 2016". [emphasis supplied]

14. I have seen a copy of the letter which was contained in the sealed envelope.  It is addressed to the mother and explains that Judge Brennan had abridged time for service of an application by E's father for appointment as "a guardian" to E and alerted her to the fact that there was to be a further hearing in the local court on 21 January, which hearing the mother should attend.  She was advised to seek legal advice.  I have not seen a copy of the order made on that occasion since neither of the English solicitors appears to have one.

15. The aunt duly made contact with the mother who immediately telephoned a local solicitor in Republic of Ireland whom she had previously instructed to assist in matters concerning her elder daughter, S.  That gentleman was Mr Conor MacGuill of MacGuill & Co.  She was unable to speak to Mr MacGuill directly but had a conversation with his secretary.  At that stage the mother understood the application to relate solely to issues of E's legal guardianship.  Despite the absence of any direct contact between them, Mr MacGuill made himself available to attend the hearing on 21 January, as did the mother's aunt.  As at 21 January 2016, the mother had still not seen any papers and had not had sight of the notice of application issued by the father.  She records in her written evidence what transpired on that occasion:

"No one in fact got back to me from the solicitors, and my Auntie went to Court on the 21st January 2016 when the first hearing was listed, to explain to the Court that I was trying to sort out legal representation and that I needed an adjournment.  When she arrived Conor MacGuill was in fact there, and said he was representing me.  Following the hearing I contacted him to see what had happened, and he suggested that I make arrangements with the Respondent about him seeing [E].  I confirmed my instructions to him that I had no objection to the Respondent's Application for Guardianship.  At that time that was the only Application I believed was being made on that court day and at the next hearing.  My solicitor did say that once the guardianship was in place if we did not reach an agreement then the next step would probably be that the Respondent would apply for custody."

The adjournment hearing on 21 January 2016
16. There is within the appeal bundle with which I have been provided a copy of an attendance note made by Mr MacGuill of what transpired at court on 21 January 2016.  It reads as follows:

"The writer advised that he had received a telephone call on behalf of [the mother] and in respect of whom it is understood an application was to be made.  Effectively, Mr Breen's application was to seek to have his client appointed as a guardian in respect of the infant child who has accompanied his mother to England and is now outside the jurisdiction.  It would be intended to apply to be made a guardian so an application could be made to the authorities so that issues pertaining to the welfare of the child could be brought in the United Kingdom.

The writer sought a short period of time within which to take instructions as he did not anticipate that there would be any objection to arriving at an accommodation with [the father] but would prefer to do so without involving international authorities.  Judge Brennan stated that he would be inclined to adjourn the matter for one week only, and did so to the 28th January 2016, indicating that he is, in the ordinary way, he is disposed to grant the applications in the absence of a compelling reason."

17. The mother's written evidence confirms that she did not receive a copy of the attendance note made by Mr MacGuill following that hearing or the subsequent hearing on 28 January 2016.  Her solicitor did not write to her following either hearing.  She was eventually able to speak to Mr MacGuill when he reassured her that the case "had just been about guardianship and that the next step would be about custody".

18. What seems abundantly clear from the evidence of both the mother and her solicitor is that, as at 21 January 2016, neither had seen a copy of the originating application which had been hand delivered by the process server to her aunt's home in a sealed envelope.  It may well be (and probably was the case) that, during the course of the telephone conversation between the mother and her aunt following the process server's attendance at the aunt's home, the mother's aunt may have read to her the documents over the telephone.  Whatever may have been the case, I am satisfied that the mother is being truthful when she says that, following the hearing on 21 January 2016, she believed the father's application to be for an order in guardianship.  That much is confirmed by her own solicitor's attendance note.  Mr MacGuill did not seem to be in possession of the notice of application on that occasion either although one wonders why he did not seek to secure a copy from the court file.   I cannot speculate about why he did not take this course because I did not have any direct evidence from Mr MacGuill for the purposes of this appeal.  However, it seems to me clear from the narrative in his contemporaneous attendance note that the father, through his own solicitor, had advertised an intention to seek legal status through a guardianship order so as to proceed with an application in the English courts in relation to E.

The inter partes hearing on 28 January 2016
19. The mother did not attend the hearing on 28 January 2016.  The father was in attendance with his solicitor.  Mr MacGuill attended on behalf of the mother.  The father's recollection of that hearing is set out in a written statement he has made for the purposes of this appeal.  At paragraph 11 of his statement dated 15 May 2017, he says this:

"In the run up to the hearing on 28 January there was a telephone call from [the mother] pleading with me to drop the application.  That was the first contact I had with her since the 8th January.  She was represented at the hearing. When I was cross examined by [her] lawyer he said that she was willing to give me contact in Ireland twice a year.  The Judge was not happy with that, and not happy at the way [she] had gone about leaving Ireland given my considerable involvement with E and that I had been paying maintenance.  He rejected the suggestions made on behalf of [the mother] and granted me custody."

20. The father goes on to explain that he subsequently sent to the mother in England a screen shot of the order which was made on 28 January 2016 lest there be any question in her mind about what had transpired on that occasion.

21. The attendance note prepared by Mr MacGuill records that both the father and his solicitor, Mr Breen, were present in court before Judge Brennan on 28 January 2016.  I record verbatim below the content of that attendance note:

"The writer indicated that he had taken instructions in relation to the matter and had proposals to make and had written to Mr Breen to that effect.  He stated that it would appear on foot of telephone communication that he had with [the mother] who was abroad and who had not received the actual documentation, nor had she but she was aware that the application was pending before the Court. He had understood that an application was before the Court in respect of guardianship. 

Mr Breen sought to expand the application and seek custody and access.  Judge Brennan required to hear from [the father] and he was called in evidence.

He stated that he was happy to make an Order for sole custody in favour of the defendant and did so notwithstanding an argument from the writer to the effect that proper service had not been effected and that the matter could be facilitated if it was adjourned and discussions with a view to agreement insofar as access was concerned.  He stated that no proposals had been made that he had heard, the writer stated that he had embarked upon correspondence and was awaiting a reply to what he had suggested.

He proceeded to make the Order.  The writer asked that he place a stay on the Order and he declined."

22. It is clear from the contents of that attendance note that, by the time of the 28 January 2016 hearing, (i) the mother had still not seen a copy of the father's originating application, and (ii) Mr MacGuill himself was not prepared to face an application for a transfer of custody on that occasion.  His instructions up to that point, apparently reflected in the questions he addressed to the father by way of cross-examination, were confined to issues of 'access'.  Nowhere in his attendance note is there a reference to any consideration being given to issues of E's welfare in the event of an immediate change of residence and 'custody' to the father.  I do not have a transcript of that hearing or any record of its course from the father's solicitor.  I do not know whether Judge Brennan heard sufficient evidence on that occasion to satisfy himself that the father (who, by this time was in a new relationship) was then in a position to offer E a stable and secure home, nor whether any consideration was given to the effect upon such a young child of a change in her primary carer.  From the note prepared by Mr MacGuill, it may be that his decision was driven more by his disinclination to accept as reasonable the proposals which were on offer in relation to future contact in Ireland.  I cannot speculate whether he made the order he did believing that it would bring mother and child back to the Republic of Ireland and I am certainly not in a position (nor am I permitted) to review the substance of the judge's decision.

23. Following that hearing, there was some correspondence between the solicitors. On 1 February 2016, Mr MacGuill wrote to the father's Irish solicitors.  In that letter he raised the issue of defective service and asked for copies of any orders made to date in the proceedings together with any evidence filed in support by the father.  He spoke of a possible application for judicial review.  Mr Breen replied almost two weeks later on 12 February 2016 sending copies of the orders, as requested.   He said this:

"No issue in relation to service was raised at the hearing of the case and in any event, once you have appeared for [the mother], it remedies any defects in service (should the same exist)."

24.  There appears to have been a further letter sent by Mr Breen on 19 February 2016 although I do not have a copy in the appeal bundle.  Mr MacGuill responded to that letter on 23 February 2016 in these terms:

"Service of the documentation has always been in issue as it was open to the Court that we were appearing as a courtesy having been made aware the documents being left with [the mother's] aunt but not having sight of them.  This remained the position on the next date, to which your client's application had been adjourned so as to ascertain whether we could receive instructions in the meantime.

It is not clear what authority your client had to serve same c/o [her aunt] at her address [in] …. Dundalk, and you might forward to us copy of the Order facilitating substituted service in this respect."

25. That chain of correspondence concludes with a letter from Mr Breen disputing the basis upon which Mr MacGuill entered an appearance at court on 28 January 2016.  It is the mother's case that she saw none of this correspondence until Mr MacGuill's file was transferred to her new solicitors on 20 April 2017.  Whilst her solicitor knew that a custody order had been made on 28 January 2016, he failed to tell the mother about the outcome of that hearing. 

The exchange of What's App messages between the parents before and after the hearing on 28 January 2016 : the mother's state of knowledge
26. Following the hearing, the father sent to the mother via a What's App message a copy of the two orders which were made on 28 January 2016 (i.e. the guardianship and custody orders).  There had been communication between them via this media platform prior to the institution of the Irish proceedings.  During the course of this exchange the mother had made it plain to the father that she was not seeking to stand in the way of future contact between him and E.  When she asked whether he was "planning on taking [E]", he responded by saying, "Am planning on putting back what was done wrong by law".  In an exchange between them on 23 January 2016 (during the week between the first and second hearings in the Irish court), she sent a message saying "Please stop playing games and tell me your plans".  He had responded, "Going to cort on Thursday and if u come back wit kids it will be dropped and not talked about again that's the only plan [sic]".

27. In my judgment there is nothing in this exchange to alert the mother to an imminent application by the father for a transfer of custody of E.  As his message makes clear, he was then seeking to restore the status quo ante whereby the mother and the children returned to live in Republic of Ireland and his contact with E resumed as before with nothing more being said about the children's removal to England.  That she was concerned about the possibility of E being removed from her care is clear from a subsequent message which she sent.  Three days later, on 26 January 2016 (two days before the Irish order was made), the mother sent a message to the father asking whether he was looking for "full custody" of E.  He responded thus: "Am looking to get [E] back to Ireland, are you coming back ?  My solicitor is doing all this."  The dialogue between E's parents on 23 January 2016 continued in this vein:

(M to F) "… it will work out better all round if you agree to visits that way you can see both of your daughters and the kids don't get split up"

(F to M) "I wouldn't take [E] or [S] off you. Like u did to me u can visit, talk to you soon.  U and me cant agree on this so talk soon"

(M to F) "So you are not taking [E] of [S] off me in court ?  Cause I taught you where planning on taking [E] ?"

(F to M) "Back in Ireland and it stops … u didn't tell me u where moving because u knew I would say no, and there is no way I would agree wit this …"

28. During several more lengthy messages sent during the course of 23 January 2016, the mother pleads with the father to allow her to remain in England with the children.  She explains that she has been making frantic efforts to understand what he is seeking to achieve by the court process he initiated and states that she has even telephoned his solicitor (although it is not clear whether she spoke to Mr Breen).  She makes several proposals for future contact between the father and both girls, including an offer to return to Ireland every few weeks for the purposes of contact.  At one point in the exchange, the father sends a text to say, "If u come back to Ireland, nothing no cort or Department of Justice, abduction, or guards, social workers".

29. When she asked him towards the end of this lengthy exchange whether he was planning to "take [E]" if she remained in England, the father replied, "Yes its all I can do, hoping u can [with S] come home to[o] like".  He refused to answer her direct question as to whether or not he was "going for full custody".  It appears that she tried to telephone the father on three occasions but either he missed her call or refused to speak to her.

30. That is where the exchange of messages concludes and it reflects the situation as between these parents when the matter was dealt with by Judge Brennan on 28 January 2016.  Whilst these text messages demonstrate that the mother was, by this stage, concerned about the father's intentions within the Irish litigation, it seems to me that the import of his responses to her entreaties was to the clear effect that if she returned, the proceedings would be abandoned.  In other words, provided she returned with the children, he did not intend to disturb her role as E's primary carer.  Following on from this exchange, there was one working day until the hearing on 28 January 2016.  There is nothing in the papers to suggest that the mother was able to speak to Mr MacGuill to secure advice or to give formal instructions.   She confirms that to have been the position in her written evidence.    She maintains that, whilst she was aware that the father might seek full custody in the future if she refused to return to Ireland, her clear understanding was that the only issue which would be before the court on 28 January was the issue of guardianship and she was prepared to consent to such an order being made in the father's favour.

31. On behalf of the father, Miss Renton contends that the mother was fully aware of the orders which were made on 28 January 2016 because he had sent her copies via a screen shot and a further What's App exchange.  Whilst it is true that the parents continued their dialogue by text well in to March 2016, I agree with Mr Anderson that what I must focus upon is the mother's state of knowledge at the time the order transferring full custody to the father was made.  I am satisfied that she was unable to illicit a clear and unequivocal response from the father as to whether on that occasion he would be pressing for what was effectively a transfer of residence and, in my judgment, there was undoubtedly insufficient time before 28 January for her to clarify the position with her own solicitor and/or give him full instructions about the evidence she would wish to place before the court in the event that it was invited to consider such an order.  Mr MacGuill's own record of what transpired at that hearing is set out in his attendance note which speaks clearly of (i) not having had sight of the formal notice of application, and (ii) his being taken by surprise at the "expansion" of the application into one concerning "custody and access".  I have no information about any direct communications which he may have had with his client, the mother, immediately after the hearing on 28 January 2016 but she is quite clear in her own evidence that at no stage did he write to her to inform her of the outcome or inform her that a full custody order had been made.  Since Mr MacGuill's complete file has now been transferred to the mother's current solicitors, I can only assume that there is nothing in that file which contradicts the mother's evidence on this point.

32. As late as 29 March 2016, the mother was sending messages to the father asking him whether he was planning to enforce the order for "full custody" of E.  He responded to that request by saying, "Am done".  On 14 April 2016, he sent a further message to the mother saying, "Not thinking about it at all, do wat u want [sic]", and later on 15 April 2016, "Do wat u want … it's a joke don't be texting me, its over 16 weeks now [sic]".  Later that day, the mother informed the father that she intended to appeal the Irish order transferring custody of E to him. 

33. Throughout 2016, the mother remained in England with the children.  The father attempted to contact her by telephone in September 2016.  When she returned his call, he said it had been a mistake.  No mention was made of the litigation or her return to Republic of Ireland.  It is the mother's case that there was no further contact until she received his application for registration and enforcement of the Irish order.  By this time, as is clear from his solicitor's affidavit in support of registration and enforcement, the father was aware of where she was living in England and the name of the local school which E was attending.  He had issued an application for the child's return to Republic of Ireland pursuant to the Hague Convention on 18 February 2016 but a view had been taken by the solicitors appointed by ICACU that an application for summary return was not appropriate in circumstances where the removal of E from the jurisdiction was not in breach of any legal rights of custody which the father had at that time.

34. At the present time, there are pending in the Irish court (i) the mother's appeal against the order of Judge Brennan dated 28 January 2016, and (ii) the father's application to strike out that appeal.  Since the conclusion of the oral appeal hearing which concerns the orders made in the English court for registration and enforcement made by District Judge Aitken on 7 November 2016, I have been advised by counsel that the Irish court has adjourned further consideration of the Irish proceedings until October 2017 pending the outcome of this appeal.

35. Mr Justice Baker made an order on 11 April 2017.  In setting the appeal down before me for an oral hearing, he directed that an officer of the CAFCASS High Court team should carry out an assessment and prepare a report addressing E's current circumstances, her recollection (if any) of her father and her life in Ireland, and the consequences for the child of any enforcement of the Irish order, including any steps which could be taken to safeguard the child's welfare in the event of such enforcement.

36. That report was produced by Mr Walker on 22 May 2017.  He attended the appeal hearing on 24 May 2017 although I heard no oral evidence on that occasion.  The substantive appeal was dealt with by means of counsel's skeleton arguments supplemented by their oral submissions.  Both parties attended the hearing, the father travelling from Ireland for the first time to be present in court with his counsel, Miss Renton. 

37. Since I do not sit as a tribunal of review in relation to the Irish order, I propose to say very little about the substance of the CAFCASS report.  I am aware that a copy has been made available to the court in Dundalk.  Mr Walker met with the mother and E (who was then 4 years old).  His report contains a lengthy exposition as to the background.  It records the abusive nature of the mother's relationship with S's father and, in contrast, her appreciation of the father as "a very lovely man.  He looked after my older daughter as if she was his own".  Since arriving in England, she had settled the children into a new home and schools and had embarked on a course of study with a view to enhancing her future employment prospects.  There do not appear to have been any further issues or contact between the mother and S's father since she made the move.  Mr Walker sets out in his report to this court the substance of his telephone conversation with the father on 15 May 2017.  During the course of that conversation he confirmed to Mr Walker that he did not intend to remove E from the care of her mother if she returned to Ireland although he would wish to share legal custody with her.  In the event that she remains in England, he wishes to look after E on his own in Ireland. He stated that, in this event, he would reduce his working hours and enlist the support of his girlfriend and extended family to care for E.

38. The report confirms that E has very little recollection of her father and her life in Ireland.  She said that she would like her father to come and visit her in England.  Of the potential separation between mother and child in the event of the Irish custody order being enforced in circumstances where the mother had made it plain that she could not contemplate such a return, Mr Walker observed that, given the thoughtful things which E had said about her mother, "separation would have a considerable emotional impact" on the child.   He said this:

"43. [E's] emotional and physical world would be significantly disrupted.  In addition, the loss of her sister would be of lifelong significance for her.  To be separated from her mother, she may feel let down by a parent she thought she could trust, and internalize a sense of guilt and responsibility that may impact on her developing sense of [self].  To remove [E] from her main carer would represent a disruption of her emotional stability.  This could have lasting consequences for [E's] development, and even influence the quality of her relationships in later life.

44. There would be a high level of physical and emotional dislocation as a result of [E] being uprooted from her family home in Bradford, after living there for 15 months.  [E] would be leaving her friends, nursery teachers, and familial surrounding.

45. Through no fault of his own, [the father] does not currently have an established relationship with his daughter.  Although they have clearly enjoyed this in the past, [E] now has little recollection of him and her life in Ireland, following a 15 month separation that began when she was two and a half years old.  [E] would therefore not only be experiencing the impact of loss of her trusted attachment figure, but would be placed in the care of a parent who is now unfamiliar to her. [The father's] new partner, and his wider family, who he proposes will support him in caring for his daughter, will also be unfamiliar, leaving [E] adrift from any familiar and secure attachment figure.

46. [The father] has described the difficulties that prevented him visiting or even telephoning his daughter following her removal from Ireland.  Whilst understandable, it provides some insight into is parenting capacity.  In particular, how he may cope with communicating with a young child who is grieving the loss of her mother and sister."

39. In terms of his recommendations, Mr Walker has dealt with these even-handedly.  He has stressed the importance to E of maintaining a relationship with her father if she remains in England with her family.  He has also set out a series of protective measures which might be put in place to afford the mother and E a "soft landing" should the family return to live in Republic of Ireland as a unit.  His hope is that these parents will achieve a solution to these problems through mediation and thereby avoid the need for further court litigation.  That is a hope which I share and a path which I would commend to each of these parties.  However, absent a consensual way forward, I propose to deal with the merits of the appeal and the legal basis which each advances through their respective counsel in support of, or in resistance to, the appeal.  Whilst I have recorded the observations and recommendations of the CAFCASS officer, Mr Walker, I make it clear again that my function is not to review the substantive merits of the decision taken by Judge Brennan and reflected in his order of 28 January 2016.  My focus is upon whether or not that order should be recognised and/or enforced by the English court.

C. The legal arguments advanced by the parties
40. On behalf of the mother, Mr Anderson advances her appeal from the foot of one preliminary procedural point and four points of substance.  In essence, his points of substance follow three of the exceptions to recognition and/or enforcement as those are set out in Article 23 (b), (c) and (d) of Brussels II Revised.  In each case, if the ground is made out, Article 23 states that a judgment relating to parental responsibility shall not be recognised.

41. Article 23 provides that a judgment relating to parental responsibility shall not be recognised in the following instances:-

"(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 as 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 persons having been given an opportunity to be heard."

42. His preliminary procedural point arises in this way.  When the father applied to register the Irish order, he (through his solicitors) failed to follow the mandatory procedural requirements of Article 37 of Brussels II Revised.  That Article requires a party seeking recognition or enforcement of an order made in another Member State to produce with the application both a copy of the judgment which satisfies the conditions necessary to establish its authenticity and an appropriate certificate.  In this instance, the appropriate certificate was what is described as an "Annex II certificate".  These forms are prescribed by the Council Regulation (No 2201/2003) and are contained in the 2017 version of the Red Book at pages 2788 to 2791.  It is unnecessary for me to set out the prescribed text of that form or the "Annex IV" certificate which the father's solicitors attached to his application for registration and enforcement.  Article 38 of Brussels II Revised gives this court a discretion to dispense with service of an appropriate certificate provided that the court has sufficient information before it.

43. The point advanced by Mr Anderson on the mother's behalf is that the two forms are very different in their content.  Annex II certificates relate to judgments on parental responsibility.  Annex IV certificates relate to orders concerning the return of a child in abduction cases.  These different subject matters are governed by differing legal regimes. Thus, both the content of, and the processes relating to, the two certificates are dissimilar.  Mr Anderson submits that the father's solicitors' failure to comply with appropriate procedural rules in a legal process which has been ongoing for over a year should lead me to a conclusion that this defect in process is sufficient, without more, to allow the appeal and refuse recognition to the Irish order.  By way of response to this preliminary point, Miss Renton concedes that it is a matter of professional embarrassment that the wrong certificate was filed with the application for recognition and enforcement but she invites me to proceed with a "soft touch" and waive the defect.  In support of this submission, she relies on the fact that the mother has not suffered any prejudice as a result, and neither is this court disadvantaged in any way from exploring the merits of the appeal.

44. On balance, I am prepared to accept that submission.  It seems to me that the gravamen of this appeal lies in the Article 23 grounds upon which Mr Anderson seeks to rely.  Since the omission relied on in the Article IV certificate which was served is the absence of the specific reference to service and notice, the merits of the mother's case can be dealt with substantively by her reliance on Article 23(c) and (d).  Those issues are fully engaged and before the court as two of the grounds of the appeal.  Similarly, Mr Anderson relies on the fact that the pro forma Article IV certificate which Judge Brennan signed on 17 May 2016 contains a statement of confirmation at paragraph 11 that the child who was the subject of the order was given an opportunity to be heard to which the solicitors' typed response (endorsed by the Judge's signature) is "N/A" (i.e. not applicable).   This, too, is one of the mother substantive grounds of appeal under Article 23 (b).  Accordingly, I am prepared to waive the defect in procedure and I move now to addressing the substantive grounds of the mother's appeal.

(i) The Article 23(b) ground: order made without opportunity for child to be heard
45. This limb of the appeal poses three separate questions:-

(a) Was the order given in a case of urgency ?

(b) If not, was the child given an opportunity to be heard ?

(c) If not, does that failure amount to a violation of fundamental principles of procedure in this jurisdiction ?

46. The Irish order concerned issues of E's parental responsibility.  The mother had already left the jurisdiction and moved to Bradford when the matter was first before Judge Brennan on 14 January 2016.  There was no evidence before the Irish court that E was at risk of harm in her mother's care.  By the time of that first appearance when the court made orders abridging time limits for service on the mother, she was already in contact with the father and, in circumstances where he had no legal right to object to E's removal from Ireland, she had made it plain that she was not seeking to obstruct his future contact with E.  In these circumstances, the obligation to provide the child with an opportunity to be heard was clearly engaged.

47. It is a fundamental principle of procedure under English law that a child must be given the opportunity to be heard in any litigation concerning his or her future.   That principle is emphasised in Brussels II Revised and it is specifically included in Article 23 as a stand-alone ground of non-recognition and/or enforcement.  The Practice Guide for the application of the Brussels IIA Regulation which has been issued by the European Commission emphasises the importance of this principle.  Save in cases of emergency or in circumstances where a particular child's age and immaturity make it inappropriate, a child is entitled to be heard in proceedings which concern her.  The guidance makes it clear that the exception is to be interpreted very restrictively.  In particular, it should always be borne in mind that the rights of the child are very significant in relation to the proceedings which affect him or her and the child's relationships with both parents and others are crucial insofar as they affect the best interests of the child.  According to the Commission's guidance, these are factors which apply to all children, regardless of their ages.

48. They are reinforced by Article 12(2) of the United Nations Convention on the Rights of the Child which contains a statement in similar terms.  Article 24 of the Charter of Fundamental Rights of the European Union states that "children may express their views freely.  Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity: see N v N (Hearing a Child) [2008] ICHC 382 (3 December 2008) per Geoghegan J.

49. The European Guidance is not law and is not binding on this court.  However, hearing the voice of the child was a central aspect in a recent Court of Appeal decision in this jurisdiction.  The leading judgment was delivered by Ryder LJ (as he then was) and it is a decision which is binding on this court.  It is contended on behalf of the father by Miss Renton that, when Judge Brennan made his order transferring sole custody of E to the father, he had heard some evidence from the father and was sufficiently acquainted with the background circumstances of this case to weigh in the balance the needs, voice and best interests of E who was then only three years old.

50. This was precisely the issue which arose in Re D (A Child) (International Recognition) [2016] EWCA Civ 12 (albeit in the context of a slightly older child).  In that case, Peter Jackson J had refused recognition to an order made by a Romanian court at appellate level on the basis of the defences in Article 23 (b) and (c).  During the course of his judgment, his Lordship said this:-

"[103] … An English court, faced with a striking application of this kind (peremptory change of a lifelong carer, country and language) would as a minimum seek a report from a court social worker that would, among other things, contain the child's perspective on such a momentous change of circumstances.  Far from being unusual, such a report would be fundamental.  Any decision reached without such information would immediately be vulnerable on procedural and substantive grounds."

51. In upholding the trial judge's decision in relation to the defence in Article 23(b), Ryder LJ said this:-

"The article 23(b) question:

26. There is no direct authority in this jurisdiction that assists in construing what is a fundamental principle of procedure for the purposes of article 23(b) BIIR.  The failure to hear the child was the fundamental principle which Peter Jackson J held had been violated.  David's children's guardian submitted then as now that David was not provided with any opportunity either directly or indirectly to be heard in the proceedings before what is Romania's final court of appeal.  There is no evidence that the question of the child's opportunity to be heard was considered by that court so that the exception created by article 41(2)(c) of BIIR, namely that it would be 'inappropriate having regard to the age or degree of maturity', was not engaged before the Romanian Court of Appeal.  This court's scrutiny of materials that are available does not suggest that David's guardian is wrong and in any event there is no appeal on this issue of fact.  Accordingly, that is the basis on which we have proceeded."

52. In that case, the child was aged five when the first instance court in Romania made its determination that ultimately led to the final appeal, six during the first appeal and seven by the time of the judgment that was to be recognised and enforced by an English court.  Ryder LJ said at a later stage of his judgment,

"36. In the family jurisdiction of the courts of England and Wales and for all purposes relevant to the type of application that the parents were making ie cross custody or residence applications, the search for the fundamental principles that are to be applied begin with the Children Act 1989 [CA1989].  Section 1(3)(a) of that provides the starting point for consideration of a welfare issue by any family court exercising a children's jurisdiction under the Act.  It provides that:

"(3) in the circumstances mentioned in subsection (4), a court shall have regard in particular to –

(a) The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding) …."
………

"40. Far from section 1(3)(a) CA 1989 being merely a checklist factor that is designed to ensure comprehensive evaluation of a welfare question, it is plainly an example of domestic legislation giving force to a fundamental principle of procedure.  The same principle is to be found in article 11.2 BIIR (using the European language for the same concept: "it shall be ensured that the child is given the opportunity to be heard during the proceedings").  That provision expressly takes priority over 1980 Hague Convention principles.  It was most recently applied by this court to inherent jurisdiction proceedings concerning an application for summary return of a child allegedly unlawfully removed from another jurisdiction: In the matter of S (A Child) (Abduction: Hearing the Child) [2014] EWCA Civ 1557, [2015] 2 FLR 588 …..

41. A principle that is of "universal application" consistent with our international obligations under article 12 of the United Nations Convention on the Rights of the Child is on its face a fundamental principle.  I regard this court as bound by their Lordships decision in Re D and in any event, it is high time that this court laid to rest the canard that summary and/or autonomously interpreted processes, whether Hague or BIIR, can in some way avoid the application of fundamental procedural protection.  In every case the court is required to ensure that the child is given the opportunity to be heard.  That means asking the questions, 'whether and if so how is the child to be heard'.  There are a range of answers, many of which were foreshadowed in Re D.  It is not the answer that is key to the question before this court but the fact that the question must be asked.  The asking of the question does not in any way detract from other principles that are in play, for example, the convention policy under the Hague Convention for the return of the child to the jurisdiction of habitual residence or the no delay principle in domestic children legislation.  Furthermore, the provisions of article 24 of the Charter of Fundamental Rights and Freedoms are directly applicable (see above) with the consequence that the court is required to ask the question I have identified."  [my emphasis]

53. In the course of his judgment in Re D, Ryder LJ also addressed the issue of how these fundamental questions are to be addressed in cases where the relevant child or children may not have developed sufficient communication skills to articulate their wishes and feelings.  His Lordship said this:

"45. For young children who have not developed any sufficient communication skills it may or may not be possible or necessary to ascertain their wishes or feelings.  Furthermore, there may on the facts of a particular case be very good welfare reasons to make a decision not to do so.  That is quite separate from the question whether and how they are going to participate.  Again, for some children in the private law context participation may be through their parents but it must not be assumed that that will be good enough.  The question must be asked."  [my emphasis]  

54. It is clear from the chronology which I have outlined at the start of my judgment that the proceedings before Judge Brennan lasted no more than a fortnight from the time when he first abridged service to the making of his order transferring sole custody to the father.  That was achieved in a single hearing on 28 January 2016 since he had acceded to Mr MacGuill's request for an adjournment on the previous occasion.  There is nothing to suggest that any other case management decisions were made on 21 January 2016. E was then three years old and had known no other primary carer throughout her life apart from her mother to whom she appears to have a deep and secure attachment.  This much is clear from the evidence of the CAFCASS officer, Mr Walker, and I have no reason to doubt that that was the position in January 2016.  There is nothing in the material before this court (and nothing is identified by Miss Renton) to suggest that Judge Brennan addressed the issue of how E's voice was to be heard in the context of the application which was before him.  As Ryder LJ has confirmed, the question about how she was to participate in the proceedings and whether or not her voice would be sufficiently heard through the evidence of her parents was a free-standing question which had to be asked.  I can see nothing to suggest that this was done.  In my judgment the reference on the face of the order made on 28 January 2016 to the court "being satisfied that the welfare of the child requires the making of the order" is not sufficient in the absence of any consideration of how E was to be heard before the court gave its imprimatur to a decision of such significance for the child concerned.

55. In her defence of the judge's order, Miss Renton took me to the judgment of Lord Justice Briggs in Re D.  At paragraphs 108 and 109, his Lordship said this:

"[108] Article 23 contains exceptions to the core principle of mutual recognition which lies at the heart of BIIR. It must therefore be narrowly construed.  But I do regard the failure even to consider whether to give David the opportunity to be heard as fully deserving of being described as a violation of a fundamental principle of the procedure of our courts.  Although some might regard the age of seven as lying near the borderline above which the giving of such an opportunity might be regarded as routine, the very large implications for him of the decision sought by his father, namely a complete change in his main carer and a move to a country in which he had not lived since very soon after his birth, cried out for consideration of the question whether he should be heard, all the more so since the mother, who might have been supposed to be likely to put the case for preserving the status quo, appeared to be taking no part in the appeal.

[109] I need say nothing about the question whether the need to consider whether to give a child in such a case the opportunity to be heard is a fundamental principle of our procedure, since I fully agree with my Lord's reasoning for his conclusion that it is."

56. Here, says Miss Renton, E enjoyed the right to a full relationship with both her parents.  Her age (3 years) is a relevant consideration.  She submits that the mother was represented on 28 January 2016 by Mr MacGuill.  She points to the fact that a central problem in the case of Re D was that the mother took no part at all in the Romanian appeal process.  This rendered the litigation in that jurisdiction a completely one-sided process which is not the case here.  She reminds me that Judge Brennan was aware of all the material facts which might have influenced his decision-making on that occasion.  He knew that E had lived with her mother throughout her life and that the father was having regular contact on a weekly basis.  Against that background, she submits that, in the case of a three year old child, the judge was not under any obligation to consider specifically how E's voice was to be heard given the general or holistic context in which he must be taken to have evaluated the issue of E's welfare and the decisions which were best for her.

57. I am not able to accept that submission despite the elegance with which it was made by Miss Renton on the father's behalf.  I shall come on to address the issue of service and the mother's state of knowledge in due course.  For these purposes, it seems to me that, for good reasons which I entirely endorse, I am bound by the reasoning of their Lordships in Re D.  I accept that there may be cases where a court will be able to conflate the question of how a child's voice is to be heard and whether the evidence of the parents of a very young child is the best platform for that enquiry with the separate question of what order is in that child's best interests.  However, in this case, the judge did not have any evidence from the mother herself.  He was aware through representations made by Mr MacGuill that she did not oppose an order for guardianship and that she was in the course of making proposals for the father's contact with E and S both locally in Bradford and in Ireland.  He had no written statement from her and the indirect evidence which I do have from Mr MacGuill persuades me that he did not have the mother's instructions on 28 January 2016 to defend an application for an immediate transfer of custody to the father.  The judge did not know whether his order would result in the mother returning to Ireland with E.  It seems tolerably clear from the exchange of texts between the parents that this was likely to have been the father's true objective when he sought such a transfer of custody.  There is nothing in the material before me which assists me to understand when, and how, Judge Brennan isolated the question of how E's position in the litigation was to be preserved so as to give her – directly or indirectly – a voice in the proceedings.
 
58. Returning as I must to the words of Article 23(b), I ask myself: was the decision to transfer custody given without the child having been given an opportunity to be heard and, if so, did that omission amount to a violation of a fundamental principle of procedure under English law in circumstances where final recognition is sought ?  The answer to the latter part of that question is addressed in the judgments of Ryder and Briggs LJJ in Re D.  Notwithstanding E's age, her right to be heard, if only through the voices of her parents, was fundamental.  Even had Judge Brennan taken the view that he was unlikely to have been assisted by a third party report from, say, a court appointed social worker, he made his decision on the evidence of the father alone without even hearing from the mother.  I do not know what questions were put to the father by Mr MacGuill. Even if they touched upon the inevitable distress which would be caused to E by a separation from her mother, I would not regard such questions as being sufficient to displace the obligation on the court at the very least to consider deferring a final determination of such a potentially momentous decision for E to a further hearing when the mother's position and that of E could be canvassed properly and with E's rights fully engaged.

59. Since the requirements of Article 23 are mandatory and I have no residual discretion in the matter, the conclusion which I have reached is that, on the basis of Article 23(b), the order of Judge Brennan made on 28 January 2016 is not entitled to recognition as a matter of English law.

(ii) The Article 23 (c) and (d) grounds (judgment in default of service or insufficient time to arrange for a defence and/or lack of an opportunity to be heard)
60. This separate ground for non-recognition raises three further questions of fact:-

(a) Was the judgment given in default of an appearance by the mother ?

(b) Was the mother served in sufficient time to arrange her defence ?

(c) Has she accepted the judgment unequivocally ?

61. The Irish order contains a recital confirming, in the case of both the orders for guardianship and sole custody, that the court was satisfied that the applications had been duly served on the mother.  As a matter of English law, I am not bound by those recitals but am entitled to look at the facts in my assessment of whether this mother was effectively served with the father's proceedings: see paragraph 72 per  Ryder LJ in Re D.

62. The (incorrect) Annex which was filed with the father's application for registration and enforcement records the fact that the mother was not present at the hearing but was legally represented.  In this context, I must look to the evidence which I have from the mother and (indirectly, through his attendance notes) from Mr MacGuill.  It is clear from the representations made on behalf of the father in the certificate that he does not contend that personal service was ever effected on the mother in England.  The certificate itself makes reference to the fact that full details of her current address were unknown at the time.

63. Whilst it may well be that the mother's aunt  read out to her the contents of the papers in the sealed envelope which were left at her home (and the mother accepts that there was a telephone conversation between them), there is no evidence that the mother was served with the father's application to seek sole custody of E.  I have not seen a copy of that application.  Mr MacGuill's attendance note records his surprise that the ambit of the father's initial application for guardianship was being extended in this way.  If his attendance note at [C73] of the bundle is true (and I have no reason to doubt its contents), then (i) the mother had not received any documentation relating to this application as of 28 January 2016; (ii) she was unaware that the return date was to be used as the opportunity by the father to seek a reversal of the status quo ante in terms of the long-standing arrangements for E's care; and (iii) he required time to take his client's instructions and put forward proposals with a view to securing agreement as to the way forward.

64. Miss Renton says that none of this matters since the mother had by 28 January 2016 secured the services of Mr MacGuill.  He was present on both 21 January (when he secured a short adjournment on her behalf) and on 28 January 2016 when he engaged in the hearing to the extent of putting questions to the father.

65. There is nothing in the material produced by Mr MacGuill which contradicts the mother's case that she was unaware that the father would be proceeding with an application for sole custody on 28 January 2016. I know not whether her solicitor was aware of the trail of text messages which had by then been exchanged between E's parents but it matters not. It is the mother's state of knowledge with which I am concerned.

66. I have already accepted that the mother is being truthful when she says that, following the hearing on 21 January 2016, she believed the application to be for an order in guardianship.  That much is confirmed by the material submitted by her own solicitor.  He also confirmed to the court on 28 January 2016 that his client was no longer in the jurisdiction and had not received the documentation, nor was she aware that the application for a transfer of E's custody was pending before the Irish court.  It is clear from the contents of Mr MacGuill's attendance note that, by the time of the 28 January 2016 hearing, (i) the mother had still not seen a copy of the father's originating application (which related solely to guardianship, i.e. his legal status as E's parent), and (ii) Mr MacGuill himself was not prepared to face an application for a transfer of custody on that occasion.  My focus must be upon the mother's state of knowledge at the time the order transferring full custody to the father was made.  For the purposes of this limb of Article 23 (c) and (d), it is irrelevant whether or not the father subsequently sent her screenshots of the orders which were made on that occasion.  It is her state of knowledge at the time of that hearing which is relevant to my enquiry into whether or not she had had effective notice that there was at that hearing an application for a full transfer of rights of custody to the father and, if so, whether she had been given time to prepare her defence to that specific application and to be heard in relation to it.  As I have already indicated earlier in my judgment, there was undoubtedly insufficient time between 21 and 28 January for her to clarify the position with her own solicitor and/or give him full instructions about the evidence she would wish to place before the court in the event that it was invited to consider an order which had such far-reaching consequences for E.  Mr MacGuill's own record of what transpired at that hearing is set out in his attendance note and the mother has provided a full account in her witness statement of the difficulties which she encountered in making contact with him.  The father's solicitors rely on his "appearance" at the two hearings on 21 and 28 January 2016 as sufficient for the purposes of an effective representation of the mother's interests but they do not seek to gainsay the limited extent of the communication which there had been between the mother and Mr MacGuill.

67. The issue for me at the end of the day is whether the procedure adopted by the Dundalk court was sufficient to protect the rights of the mother so as to allow for recognition of this judgment or order.  In other words, to echo the words of Ryder LJ in Re D, were her rights sufficiently protected as a result of the procedure adopted by Judge Brennan so as to safeguard her right to a fair hearing and her rights of defence (see paragraph 58).

68. Whilst the mother may well have had informal notice through her aunt of the nature of the father's original application for a guardianship order, there is no evidence that she was ever served with an application for a transfer of custody.  I agree with Mr Anderson that the highest the father can put his case is that she had time to arrange for a solicitor to be present in court on 21 January 2016.  There is no reliable evidence (indeed, no evidence at all) that Mr MacGuill was aware when he attended court on 28 January that he would be facing an application to transfer full custody of E to the father.  I am prepared to accept that his mere presence in court on that occasion cannot amount to an effective "appearance" on behalf of the mother given that she herself was unaware of the nature of the application which was to be made on that occasion.  On the basis of the evidence before me on this appeal, there was nothing before Judge Brennan on 28 January which could be construed as 'a defence' to that specific application.

69. In the circumstances, I accept Mr Anderson's submission that the father has failed to make out his case on the balance of probabilities that the mother had sufficient time to enable her to arrange for a defence of his application for a transfer of custody and/or that she had a sufficient opportunity to be heard on this issue.  Since this is a fundamental point of fairness, I decline to accord recognition to the order of 28 January 2016 as I am obliged to do given the terms of Article 23(c) and (d).

70. Given the conclusions which I have reached in relation to three of the mother's grounds of appeal i.e. voice of the child not considered (Art 23(b)); judgment delivered in default of appearance and with insufficient time to prepare a defence (Art 23 (c)); and no opportunity for mother to be heard (Art 23 (d)), I do not consider it necessary to embark on a consideration of whether Judge Brennan's order was manifestly contrary to public policy taking into account the best interests of the child.  I do not know (and cannot speculate) whether his reasons for making the order he did were honed or shaped by his understandable disapproval of the unilateral steps she had taken to move with E to another jurisdiction.  Notwithstanding the fact that the father did not at the time of the removal have any legal standing to object, he was enjoying regular contact with E and was providing financial support.  It may well be that Judge Brennan anticipated that his order transferring sole custody to the father would be a sufficient incentive to persuade the mother to return E to the jurisdiction of the Republic of Ireland whereupon the status quo ante would be restored.  I know not and I do not trespass into the realms of speculation because I recognise and accept that I am not entitled to review the merits of his decision and I recognise the fundamental importance of the Convention's objectives of comity and mutual trust as between Member States.  In this instance, and taking the broad canvass of the evidence which is now before the court, my decision is that this appeal must be allowed.  I will set aside the order made by  District Judge Aitken on 7 November 2016 on the basis that, pursuant to Article 23 (b), (c) and (d) of Brussels II Revised, the Irish order is not entitled to recognition and/or enforcement as a matter of English law for the reasons set out in this judgment.     
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