R v W (Approved)

Factual and Procedural Background

This case concerns two children with dual Irish-UK nationality who were removed from Ireland pursuant to an ex parte order permitting their return abroad before the mother was served with the related proceedings. The mother, with whom the children had resided for several years in Ireland, lost physical custody without having been heard by the Irish courts. The father, a UK national, and the mother, an Irish national, were divorced and had an agreement from a relevant EU Member State giving primary care to the mother. The mother later relocated to Ireland. In 2017, the father initiated proceedings in the relevant EU Member State, resulting in an enforcement order dated 31 October 2018, directing the mother to re-establish domicile with the children in either that Member State or a specified UK city.

On 1 May 2019, the father applied ex parte to the Master of the High Court in Ireland for recognition and enforcement of the foreign enforcement order under the Brussels IIa Regulation (Council Regulation (EC) No. 2201/2003). The Master granted the declaration of enforceability and ordered that the father could seek Garda assistance to enforce the order, including recovering travel documents. Following this order, the children were removed from Ireland with Garda assistance. The mother attempted to obtain a stay on the order shortly after the removal, but by then the children had already been taken abroad.

The mother appealed the Master’s order, contending that she had not been properly served with the order or accompanying documentation, thus violating her constitutional and EU procedural rights. The court examined the procedural history, the nature of the foreign orders, and the enforcement process under Irish and EU law.

Legal Issues Presented

1. Whether the ex parte order declaring enforceability of the foreign court order complied with the procedural requirements under Order 42A of the Rules of the Superior Courts and the Brussels IIa Regulation.
2. Whether the mother was properly served with the declaration of enforceability and accompanying documentation as required by law.
3. Whether enforcement of the foreign order prior to proper service and an opportunity to challenge the order violated constitutional guarantees of fair procedures and EU fundamental rights, including the right to an effective remedy under Article 47 of the EU Charter of Fundamental Rights.
4. The extent of the Master’s powers in granting declarations of enforceability and whether the Master could order Garda assistance or protective measures.
5. The consequences of enforcement of the foreign order without proper procedural safeguards on the rights of the affected parent and children.

Arguments of the Parties

Appellant's Arguments

• The appellant (mother) argued that she was not properly served with the order declaring enforceability or the necessary documentation, including particulars of the judgment or decision, and no notice of enforcement was served.
• She contended that the enforcement of the foreign order before she had an opportunity to challenge it breached her constitutional rights to fair procedures and her rights under EU law.
• The appellant highlighted that the removal of the children without her being heard was a grave wrong and that the procedural safeguards required by the Brussels IIa Regulation and Irish law were not observed.

Respondent's Arguments

• The respondent (father) contended that the appeal concerned a mere technicality and that the mother had been served with a copy of the order.
• He argued that the mother was in breach of the foreign court order and that the children’s removal was justified under the enforcement order.
• He maintained that he had acted in good faith and had sought to comply with the law by obtaining the foreign order and engaging legal representation in Ireland.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the procedural and substantive compliance of the Master’s order with the Brussels IIa Regulation, Order 42A of the Rules of the Superior Courts, and constitutional and EU law principles. It found that the Master’s order failed to meet mandatory requirements, including specifying the appeal period, notifying that execution might issue before the appeal period expired, and informing about the possibility of a stay pending appeal. These omissions are significant as they undermine fundamental procedural protections.

There was no evidence that the mother was properly served with the declaration of enforceability or the accompanying notice of enforcement, which is a strict legal requirement. The court rejected the respondent’s argument that the mother’s subjective knowledge or informal receipt of a copy of the order constituted proper service.

The court emphasized that enforcement of the foreign order prior to proper service and an effective opportunity to challenge it violates constitutional guarantees of fair procedures and EU fundamental rights, including the right to an effective remedy under Article 47 of the EU Charter. It relied heavily on the authoritative judgment in Hampshire County Council v. C.E. and N.E. and the Court of Justice of the European Union’s interpretation of Article 33 of the Brussels IIa Regulation.

The court further noted that the Master exceeded his powers by authorizing Garda assistance in enforcing the order, as the Master has no jurisdiction to grant provisional or protective measures under the Brussels IIa Regulation; such measures must be sought from the High Court.

Overall, the court found that the enforcement of the foreign order was premature and unlawful, resulting in a grave breach of the mother’s fundamental rights.

Holding and Implications

The court ALLOWED THE APPEAL and DISCHARGED the order made by the Master of the High Court on 1 May 2019.

The direct effect of this decision is that the declaration of enforceability granted by the Master is nullified, and the enforcement actions taken pursuant to that order are invalidated. The mother’s constitutional and EU procedural rights were recognized as having been infringed by the premature enforcement. No new precedent was established beyond the reaffirmation and application of existing legal principles regarding procedural fairness, proper service, and the powers of the Master under the Brussels IIa Regulation and Irish law.

The judgment contains recommendations for systemic improvements to prevent recurrence, including revising standard ex parte order templates to ensure mandatory information is included, producing accessible explanatory materials for practitioners and laypersons, and encouraging professional bodies to issue guidance on best practices to avoid unlawful removals based on ex parte orders before service of proceedings.