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Ex parte order allowing children be removed to UK is sets aside where procedural steps were not followed

By: Shane Kiely BL

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High Court, in a judgment that considers domestic and EU law on the enforceablity of foreign judgments in relation to the domicile of children, allows an appeal of a decision of the Master of the High Court and sets aside an order of the Master on various grounds, in circumstances where a father removed children to the UK without following certain procedural steps in relation to service of the Master's order on the mother.

Two children who enjoy dual Irish-UK nationality had been removed from Ireland following the making of an ex parte order allowing their return abroad but before the service of proceedings on the mother - children were living with their mother for two years - appeal against an order made by the Master of the High Court on 1 May 2019 - father from UK and mother from Ireland married almost 20 years ago - two children with dual UK and Irish nationality - family lived between UK and other EU Member State (hereafter "other State") where father has business interests - parties divorced in other State and mother effectively obtained primary care and custody of children - mother returned to Ireland approximately 5 years ago - mother claims that, before she moved here, the move was discussed with father and his mother at his parents’ home, the view being (rightly or wrongly) that one of the children of the onetime marriage, being a child who has special educational needs, would be better supported in Ireland - for a number of years the Irish-based arrangement appears broadly to have worked, contact was maintained between the children and father - the children spent a portion of their holidays each year with their father either in the UK or the other State - on 1 May 2019, the father made an ex parteapplication to the Master of the High Court seeking orders for the recognition and enforcement of the Relevant Member State Court Order in accordance with Art.28 of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No. 1347/2000 (“Brussels IIa Regulation”) - father could request the assistance of the Guards to return the children to the UK - following the making of this order, the children were removed from the jurisdiction - on 3 May 2019, the mother obtained a stay on the Master's order in the High Court with hearing date given on 13 May 2019 - counsel for the father arrived during that hearing stating that the children were already on flight to the other State - no proper service of proceedings on mother - order of other state dated 31 October 2018 gave mother 30 days to establish domicile of children - under the Brussels IIa Regulation a certificate must issue identifying the order to be enforced - certificate only refers to order of 2018 and not 2013 - 2013 order states that children be under the care and custody of the mother and live in the UK with her - law as stated in Brussels IIa Regulation - Order 42A of the Rules of the Superior Courts states that the Master of the High Court is the authority dealing with enforcement of orders under certain sections of Brussels IIa - appeal against an order of the Master to the High Court within one month - specific directions for service - discussion of Court of Appeal 'Hampshire County Council' case - Masters order did not satisfy the Court Rules requirements in that the period for the bringing of an appeal was not stated - procedural requirements in relation to service observed more strictly - power of the Master - Master does not have the power to make a personal/protective order - unrepresented father gave written submissions to the Court - appeal allowed and Masters order discharged - procedural suggestions to improve a situation as this - helpful letter to parties explaining judgment.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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