E.E -v- O'Donnell

Factual and Procedural Background

The Applicant sought judicial review to quash an order made by a Circuit Court judge on 19th June 2013, concerning custody proceedings involving three children born in 1995, 1996, and 2000. The Applicant ("the Mother") and the Notice Party ("the Father") are parents who separated around 2009/2010. The children primarily resided with the Father in Ireland after separation, with visitation to the Mother in Sweden.

In 2010, the Father initiated proceedings in the District Court in Ireland under the Guardianship of Infants Act 1964 (as amended), resulting in several interim orders. In summer 2012, the youngest child ("child A") remained in Sweden with the Mother contrary to a District Court order requiring return to Ireland. The District Court subsequently granted the Father sole custody of all three children, and the Mother appealed to the Circuit Court.

Meanwhile, the Father applied in Sweden under the Hague Convention and EU Regulation 2201/2003 for the return of child A, alleging wrongful retention. The Swedish courts refused the return order based on the child's objection, and the refusal was upheld on appeal. The Swedish Central Authority notified the Irish Central Authority of these decisions, which then transmitted relevant documents to the Irish High Court and subsequently to the Circuit Court where the custody appeal was pending.

On 19th June 2013, the Circuit Court judge struck out the Mother's appeal and affirmed the District Court orders. The judge also returned the Swedish court documents to the High Court, apparently under the belief that there were pending High Court proceedings relating to child A. The Applicant challenged the Circuit Court’s jurisdiction to remit documents to the High Court and sought judicial review of the Circuit Court order.

Legal Issues Presented

1. Whether the Circuit Court had jurisdiction to remit documents received under Article 11(6) of Regulation 2201/2003 to the High Court.
2. Whether the Circuit Court was correct to strike out the Mother's appeal and affirm the District Court orders without a hearing on the merits.
3. The interpretation and application of Articles 10 and 11 of Regulation 2201/2003 concerning jurisdiction and procedures following a non-return order under the Hague Convention.
4. The procedural obligations of Irish courts and Central Authorities under Order 133, rule 11 of the Rules of the Superior Courts in relation to documents received under Article 11(6) of the Regulation.

Arguments of the Parties

Applicant's Arguments

• The Circuit Court lacked jurisdiction to remit documents to the High Court because no proceedings relating to child A were pending before the High Court.
• The striking out of the appeal and affirmation of the District Court orders was premature and lacked a decision on the merits.
• The procedural requirements under Regulation 2201/2003 and Order 133, rule 11 require that the Circuit Court exercise jurisdiction over the custody dispute and consider the documents received from Sweden.

Notice Party's Arguments

• The Father applied for the appeal to be struck out based on the Mother's refusal to comply with a Circuit Court direction regarding a psychological assessment in Ireland.
• The Circuit Court judge considered that the matter should be returned to the High Court to progress the Hague Convention matter, implying jurisdiction in the High Court.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analyzed the interplay between the Guardianship of Infants Act 1964 (as amended), the Hague Convention, and Regulation 2201/2003, focusing on Articles 10 and 11 of the Regulation. It emphasized that the Irish courts retained jurisdiction over the custody dispute concerning child A despite the child’s residence in Sweden, as no acquiescence or other conditions under Article 10 had been met.

The Court noted that the non-return order from Sweden under Article 13 of the Hague Convention did not determine custody merits and that Article 11 of the Regulation mandates transmission of such non-return orders and related documents to the court with jurisdiction over custody in the child’s habitual residence state.

The Court observed that the procedural rules (Order 133, rule 11) require the Central Authority to transmit documents to the court where proceedings are pending. Since the custody proceedings were pending before the Circuit Court, the High Court’s role was limited to transmitting the documents to the Circuit Court office.

The Court found that the Circuit Court judge misunderstood the procedural situation, mistakenly believing that the High Court had jurisdiction over the custody dispute and thus unlawfully remitted the matter and documents back to the High Court. This exceeded the Circuit Court’s jurisdiction and was procedurally incorrect.

The Court concluded that the Circuit Court’s striking out of the appeal without a merits hearing, coupled with the improper remission of documents, was unlawful, warranting quashing of the entire order by certiorari.

The Court further clarified that the Circuit Court alone must exercise jurisdiction over the pending custody appeal, taking into account the procedural and certification requirements under Articles 11(8) and 42 of the Regulation.

Holding and Implications

The Court GRANTED the Applicant's judicial review application and ordered certiorari quashing the entire Circuit Court order of 19th June 2013.

The Court directed the remittance of the file received under Article 11(6) of Regulation 2201/2003 back to the Circuit Court, with instructions to hear and determine the pending appeal on its merits, applying the procedural and jurisdictional framework set out in the Regulation.

This decision clarifies that, where custody proceedings are pending before a Circuit Court, that court retains exclusive jurisdiction and may not remit matters or documents to the High Court absent a pending High Court proceeding. The ruling emphasizes adherence to the procedural requirements established by EU law and Irish procedural rules in international child custody disputes, but does not establish a new precedent beyond the facts of this case.