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Cite as: [2008] 2 IR 707, [2007] IEHC 380

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Neutral Citation No: [2007] IEHC 380

THE HIGH COURT

JUDICIAL REVIEW

[2006 No. 1307 JR]

BETWEEN

P.M.

APPLICANT

AND

JUDGE MARY DEVINS

RESPONDENT

AND

A. McA.

NOTICE PARTY

Judgment of Mr. Justice Henry Abbott delivered on the 2^nd day of July, 2007

This application was heard before me on the 17^th April, 2007. The application was for judicial review pursuant to leave being granted by order dated 6^th November, 2006, for the following reliefs:

(a) An order of certiorari by way of application for judicial review quashing the order made by the respondent on the 29^th May, 2006, appointing the notice party as guardian of the children R. McA. and V. McA. (hereinafter referred to as the children).

(b) An order of certiorari by way of application for judicial review quashing the order made by the respondent on the 25^th September, 2006, granting the notice party sole custody of the children.

(c) A declaration that the courts of Ireland do not have jurisdiction to make orders in respect of the children.

(d) An order of prohibition, prohibiting the respondent from determining guardianship and/or custody and/or access disputes as between the applicant and the notice party.

(e) A stay on the operation of the said orders of the 29^th May, 2006, and the 25^th September, 2006, pending the outcome of the proceedings within.

(f) Such further or other order as this Honourable Court shall seem meet.

(g) An order providing for the costs.

Background Facts

The applicant and the notice party are not married and they had a relationship by which they had two children, a daughter R. McA and a son V. McA who were born on the 29^th June, 2002, and the 5^th January, 2004, respectively. R. McA was born prematurely and has cerebral palsy in consequence whereof she is disabled and delicate and has required and continues to require special care. The applicant is Scottish and the notice party is Irish. Their relationship commenced in Ireland and they took up residence and lived together in Ireland in 2002. They continued to live together in Ireland until in or about August, 2005 when, as a result of difficulties between them, the applicant moved with the children to rented accommodation in Ireland, still in the vicinity of the notice party and it appears access arrangements continued for the notice party. Both the applicant and the notice party in their affidavits gave conflicting accounts of the difficulties in the relationship and the inadequacies of the care which each gave to the children. Both the applicant and the notice party generally reject the criticisms levelled at them by the other in relation to this aspect. On the applicant's account she, the applicant was in contact with Irish social workers who were concerned at the effect of ongoing disputes between the applicant and the notice party.

The applicant says that she left Ireland on the 29^th March, 2006, with the children having resolved that she and the children would reside in Scotland and would not, for the foreseeable future, return to reside in Ireland. She said that she had wanted to leave for some time before matters came to a head at the end of March, 2006. She says that she now lives on a temporary basis with her mother. On both the applicant's account and the notice party's account, the accommodation in Scotland appears to be cramped but the applicant says that she hopes to get accommodation from the Housing Authority in Scotland in the near future as her case is being considered by that authority as a medical priority. She feels her move to Scotland was a good one and she intends to stay there. The facilities available for the child R. and her needs, she claims, are far more comprehensive than had been available while living in Ireland. R. has been attending a nursery pre-school in Scotland near their home since 15^th May, 2006, and is transported by mini bus each day. R. also attends regularly at a Disabled Children Association for weekly activities for children and young people with various disabilities including playgroups, outings, parties, summertime activities and has settled extremely well in her pre-school and her Disabled Children Association's sessions. She says that she had differences with the notice party's family and that they took his side in disputes. The notice party contests this and states that his family lived in the vicinity and were supportive and helpful to the children.

The notice party makes various criticisms of the conduct, health, background and temperament of the applicant and how these have affected, and are likely to continue to affect, her care of the children. He said that access had been arranged from the time the applicant went to live apart from him in August, 2005, and that he endeavoured to have that access as often as the applicant would allow. It was agreed that he would take the children every weekend from Friday evening until Sunday evening and that he would care for their needs, including physiotherapy for R. three times a day, and would bring them to visit their paternal grandmother in her nursing home.

However, until the departure of the applicant with the children to Scotland in March, 2006 the notice party was not the guardian of the children.

On the 3^rd May, 2006, the notice party issued applications to the District Court in Ireland to be appointed guardian of the children and for custody. The District Court summonses relating to said applications were served upon the applicant at her address in Ireland and the applicant agrees that she received same when she called back to Ireland to collect her and the children's belongings. The application to the District Court was heard on the 29^th May, 2006, before which the applicant's solicitor wrote to the District Court Clerk indicating that as the applicant and the children were no longer living in Ireland when the proceedings were issued the District Court did not have jurisdiction to hear the matter. When the matter was heard the respondent District Judge heard and considered the arguments of both parties in relation to the jurisdiction of the court on the basis that:

(a) the habitual residence of the children was Ireland and

(b) the habitual residence of the children was not the United Kingdom and

(c) no previous legal proceedings were pending in any other Member State and on the 29^th May, 2006, the order was made by the District Judge to appoint the notice party as guardian of the two children.

Issues of custody and access were adjourned to 24^th July, 2006. On 2^nd day of June, 2006 the applicant lodged an appeal against the order of the District Court dated 29^th May, 2006, and this appeal came on for hearing in the Circuit Court on 21^st July, 2006. This appeal was struck out and the order of the District Judge dated 29^th May, 2006, appointing the notice party as guardian of the children, was affirmed by order of the Circuit Court dated 21^st day of July, 2006. The custody and access issue came on before the District Court on an adjourned hearing on 25^th September, 2006. The applicant was represented at that hearing by her solicitor and an objection was again made on the basis of jurisdiction of the court. The District Court ordered that the custody, care and control of the children be given to the notice party by order dated 25^th September, 2006. A notable feature of the hearings leading to the orders dated 29^th May, 2006, and 25^th September, 2006, is that whereas the notice party gave evidence the applicant did not attend and was represented only by her solicitor.

Both the applicant and the notice party in their affidavits set out a number of factors indicative of the establishment, (or otherwise), by the children of an habitual residence in the United Kingdom, some of which seem to have been canvassed in the District Court on the hearing relating to the jurisdiction of the court in May, 2006. Nevertheless I am satisfied, by reason of the averment of the notice party, that the facts got "a good airing" and that the District Court was in possession, by way of evidence or account of the parties or their representatives, of a very substantial proportion of the factual background surrounding the lives of the children in both Ireland and the UK and the circumstances of their moving with the applicant to the UK.

General Legal Background

Article 8 of the Council Regulation (EC) No. 2201/2003 referred to as the "Brussels II bis Regulation Concerning Jurisdiction and the Recognition and Enforcement of Judgements in Matrimonial Matters and Matters Relating to Parental Responsibility Repealing Regulation (EC) No. 1347/2000 [2003] O.J. L338/1" sets out in Article 8 thereof the general jurisdiction of the court as follows:

"1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.

2. Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12."

Article 2 of the Regulation deals with definitions, in particular paragraph 7 defines with the concept of parental responsibility as follows:

"The term 'parental responsibility' shall mean all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term shall include rights of custody and rights of access."

The terms 'holder of parental responsibility', 'rights of custody' and 'rights of access' are defined in the following paragraphs 8, 9 and 10 as follows:

"8. The term 'holder of parental responsibility' shall mean any person having parental responsibility over a child;"

The term 'rights of custody' shall include rights and duties relating to the care of the person of a child, and in particular the right to determine the child's place of residence.

"10. The term 'rights of access' shall include in particular the right to take a child to a place other than his or her habitual residence for a limited period of time.".

The Submissions

Mr. Power, counsel for the applicant, submitted that whereas formerly the jurisdiction of the Irish court could rest on the presence of the child within it and the submission of the parties to jurisdiction. He asserted that that approach was not now applicable and that jurisdiction must now be established within the strict confines of the Brussels II bis Regulation. The question he submitted in this judicial review focused on whether the District Court directed itself properly in assessing whether Ireland, as a nation, had jurisdiction under the Brussels II bis Regulation when the notice party issued his application to be appointed guardian and gain custody of the children on the 3^rd May, 2006. He stated that if the children did not have an habitual residence in Ireland in May, 2006 then the Irish courts did not have jurisdiction and therefore the District Court in this case could not have jurisdiction and consequently that was an error of jurisdiction based on an error of law which constitutes the classic grounds for judicial review.

Mr. Power submitted that the applicant was the only person with guardianship rights at the time of the issue of the summons in this case on the 3^rd May, 2006 and thus was the only person who could lawfully direct where the children could reside. He relied on the dictum of McGuinness J. in Re: C.M. (a minor): C.M. and O.M. v. Delegación Provincial de Malaga [1999] 2 IR 363 where she stated at p. 381:

"…[I]t seems to me to be settled law in both England and Ireland that "habitual residence" is not a term of art, but a matter of fact, to be decided on the evidence in this particular case. It is generally accepted that where a child is residing in the lawful custody of its parent (in the instant case the mother), its habitual residence will be that of the parent. However, the habitual residence of the child is not governed by the same rigid rules of dependency as apply under the law of domicile and the actual facts of the case must always be taken into account.

Finally, a person, whether a child or an adult, must, for at least some reasonable period of time, be actually present in a country before he or she can be held to be habitually resident there."

Mr. Power submitted that unlike the concept of domicile, habitual residence does not have any specific dependency conditions. However, he submitted that there is a recognised association between habitual residence of children and that of their lawful guardian and referred to in Re. B.(Minors) (Abduction) (No. 2) [1993] 1 F.L.R. 993 where it was stated by Waite J. as follows at p. 995:

1. The habitual residence of young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court.

2. Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or of long duration. All that the law requires for a 'settled purpose' is that the parents' shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.

3. Although habitual residence can be lost in a single day, for example upon departure from the initial abode with no intention of returning, the assumption of habitual residence requires an appreciable period of time and a settled intention …. Logic would suggest that provided the purpose was settled, the period of habitation need not be long.

This case was referred to with approval by the Supreme Court in P.A.S. v. A.F.S. [2004] IESC 95: (Unreported, Supreme Court, 29^th November, 2004). Mr. Power submitted that in the case of an unmarried couple where the father is not guardian, the right to determine residence rests with the mother.

Mr. Power conceded that jurisprudence in this area is not entirely settled. For instance, habitual residence has been held to refer to residence in an ordinary sense, or residence for a settled purpose and with some degree of continuity. Some authorities have stated that it takes time to acquire an habitual residence, but that it can be terminated quickly. The intention of the party, in the instant case the mother, will also be relevant but not overly so as that may confuse the issue with that of domicile. Mr. Power referred to Swaddling v. Adjudication Officer (Case C-90/97) [1999] ECR I-1075 in which the European Court of Justice stated that the habitual residence referred to the State in which persons habitually resided and where the habitual centre of their interests were to be found. The ratio of that case concerned a national social security decision which held that before a person who lawfully moved from one Member State to another was habitually resident in the second Member State he had to reside there for an appreciable period of time, in that case eight weeks. The European Court of Justice held that the definition of 'habitual residence' did not permit the application of a criterion concerning residence for an appreciable period of time in that instance eight weeks. Mr. Power referred to the English case Re. F. [1992] 1 F.L.R. 548 where it was decided that less than a one month residence was enough to found a new habitual residence. He offered a helpful quotation from the judgment of Thorpe L.J. in the case Al Habtoor v. Fotheringham [2001] 1 FLR 951, where he said as follows at p. 963:

Turning to the case-law defining habitual residence there is little room for disputing a number of relatively straightforward propositions. First, the determination of a persons habitual residence is a question of fact to be decided by reference to all the circumstances of the case … '…"ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.

Lord Thorpe goes on to refer to Akbarali v. Brent London Borough Council [1983] 2 AC 309 where Lord Scarman stated at p. 344 that "All that the law requires is that there is a settled purpose. That is not to say that the "propositus" intends to stay where he is indefinitely; indeed his purpose, whilst settled, may be for a limited period." Lord Thorpe proceeds to state at p. 963:

Secondly, there is an important distinction between the loss of an habitual residence and the acquisition of a substitute. A person may cease to be habitually resident in a single day if he quits the country with a settled intention not to return but to take up habitual residence elsewhere. By contrast habitual residence in the second country is not acquired on arrival but only after a period that demonstrates that the residence has become habitual and is likely to continue to be habitual depending upon the relevant facts and circumstances. The period of residence after arrival may be brief but it still must be appreciable.

Mr. Power submitted that on the facts it was clear that if the state of habitual residence was Scotland by the 3^rd May, 2006 the return for the limited purpose and time by the applicant mother would not change it back to Ireland. He submitted that the country of Scotland was the country of habitual residence for a "settled purpose" in the instant case at the relevant time; the factors that led to this conclusion include:

1. The applicant and children ceased to reside in Ireland and decided to return to Scotland for good.

2. The applicant is from Scotland as are the children's extended family who reside there.

3. The applicant took the children with her and was the only person then lawfully entitled to make such a decision in relation to the children.

4. The move was influenced by the necessary social services available to one of the children in Scotland on an ongoing basis and the fact that such a service was not available in this State. The decision to move was also influenced by the respondent's assaults. The applicant returned to Ireland only to collect belongings which demonstrated that since the move the children have in fact resided in Scotland as a matter of ongoing habit.

5. Matters occurring after the relevant date are consistent with the applicant and her children having acquired a habitual residence in Scotland.

6. The applicant and her children have abandoned their habitual residence in Ireland.

Mr. Power submitted that the Brussels II bis Regulation required legal certainty in relation to jurisdiction and that the lack of guardianship status of the notice party certainly precluded the respondent district judge from determining and accepting jurisdiction for the Irish Court under the regulation.

Ms. Courell, B.L. counsel on behalf of the notice party, argued that it is not for a court hearing an application for judicial review to consider to take on an appellate jurisdiction and cited the cases State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642 and the Supreme Court decision in Devlin v. Minister for Arts Culture and Gaeltacht [1999] 1 IR 47. She cited with approval of the oft quoted passage from Lord Brightman in the case of Chief Constable of the North Wales Police v. Evans [1982] 1 W.L.R. 1115 in the case Lennon v. District Judge Clifford [1992] I.R. 382. where the following passage from the judgment of Lord Brightman is cited at p.:

Counsel cited the following passage from Lennon v. District Judge Clifford [1992] I.R. 382 where O'Hanlon J. stated at p. 386;

"The general tenor of the decisions is that the High Court is not available as a court of appeal from decisions of other tribunals except where it is given such a function by statute, and that the scope of challenging the validity of orders made by lower courts by way of judicial review proceedings is confined to those cases where reliance can be placed on want of jurisdiction, or excess of jurisdiction; some clear departure from fair and constitutional procedures; bias by interest; fraud and perjury; or decisions containing an error of law apparent on the face of the record."

Ms. Courrell J.C., referred to the use of the Fordham checklist for judicial review proceedings as quoted in Bradley, Judicial Review, (Dublin, 2000) at p. 223 and emphasised that the existence of a factual dispute between the parties is not amenable to judicial review procedure. She submitted that habitual residence was a matter to be determined on the facts of each case and the applicant was seeking in this case to use judicial review as a complete hearing of the facts.

It was submitted that judicial review should only be used when there is no alternative remedy available and in this context it was submitted that the applicant appealed to the Circuit Court in relation to the District Court's decision dated the 29^th May, 2006 and that the District Court decision was affirmed by the Circuit Court on the 21^st July, 2006.

She submitted that in any event judicial review should be denied in this case by reason of the failure by the applicant to act promptly and the failure to justify the delay citing Regina v. Independent Television Commission, ex parte TV NI Limited [1991] T.L.R. 606,, Riordan v. An Taoiseach (No. 2) [1999] 4 IR 343. and Riordan v. An Taoiseach (No.1) [1999] 4 IR 321 and also Director of Public Prosecutions v. Judge McDonnell (Unreported, Barr J. October 1990) where Barr J. stated as follows:-

"The obligation to apply promptly for such relief is a primary requirement which ought not be ignored and where, patently, prompt application has not been made then an explanation for the delay should be put before the court. In the present case the application was a simple one arising out of undisputed facts which raised a net issue of law. In the absence of any explanation for delay in making the application until the last possible date within the rule, I am compelled to hold that the application was not made promptly, and, therefore, the applicant failed to comply with the requirements of the rule and has disentitled himself to the relief which he seeks."

It was submitted that in regard to proceedings involving questions of parental responsibility it is in the interest of justice and respect for family life, as defined in the constitution and the European Convention on Human Rights, that the applicant act promptly.

In her extensive written submissions Ms. Courell reviewed the provisions of the Brussels II bis Regulation in relation to the concept of habitual residence and the provisions of the regulation in relation to jurisdiction. She said that the concept of 'habitual residence' which is increasingly used in international conventions is not defined by the regulation despite the fact that it is the primary connecting factor in the legislation. She refers to the academic commentary expressed in Dicey and Morris, The Conflict of Laws, 12^th Ed., (London, 1993) at pp. 161 – 163.

She submitted that according to the practice guide for the application of Brussels II bis, which was drawn up by the Commission in consultation with the European Judicial Network and Civil and Commercial Matters, the absence of a definition of 'habitual residence' was a deliberate policy decision, one made to prevent 'habitual residence' becoming a legal term of art, weighed down by judge made accretions, as has happened in the nebulous term "demi domicile". Instead it was left to the courts of the EU to construe its meaning on a factual case by case basis. Article 3(1)(a) (in relation to divorce proceedings) provides that the habitual residence may be acquired after just one year habitual residence in the jurisdiction or following as little as six months habitual residence when combined with the person's nationality or domicile prior to the institution of divorce proceedings. There are no satisfactory guidelines either in the regulation or from the European Court of Justice as to what actually constitutes 'habitual residence'.

There followed in the written and oral submissions of Ms. Courrell an extensive examination of the meaning of the term 'habitual residence' as drawn from other international treaties. She submitted that the issue of habitual residence is a question of fact and that the District Court judge made correct findings of fact on the evidence before her and correctly applied the law to these facts. She submitted that since Brussels II bis requires the court to use its preliminary jurisdiction to determine the issue of substantive jurisdiction, it is not sufficient for legal representatives to assert that the court does not have jurisdiction. Ms. Courrell submitted that it would have been wrong of the District Court judge to decline jurisdiction in circumstances where no oral or affidavit evidence was before the court and the notice party had no opportunity to cross examine the applicant's allegation in relation to the children's habitual residency. Otherwise, the jurisdiction of the District Court to decide the preliminary issue is completely undermined and this goes against the principle of the Brussels II bis Regulation which was to ensure equal respect and recognition for the judgments of the courts of all Member States.

She stated the loss of habitual residence in Ireland would only have occurred after habitual residence had been acquired in Scotland and this had not yet happened and referred to F.L. v C.L.(Unreported, High Court, Finlay Geoghegan J., 25^th January, 2006). She submitted that if habitual residence had been acquired in Scotland this does not mean that the Irish habitual residence was lost and she refers to the case of Mark v. Mark (House of Lords) [2005] 3 WLR 111, which is authority for the proposition that one may have habitual residence for the purpose of jurisdiction. She further submitted that the facts which supported that submission were set out in the affidavit sworn by the notice party dated the 11^th January, 2007.

In relation to what Ms. Courrell referred to as the substantive argument regarding the judicial review in the instant case, she submitted that since the interpretation of the phrase 'habitual residence' is not a term of art but rather is to be determined as a question of fact, it is difficult to see how one could classify her conclusion that she had jurisdiction as been erroneous in law. She submitted that the facts before the District Court judge supported her decision. In this regard Ms. Courrell placed reliance on the judgment of Morris J. (as he then was) in Farrelly v. Devally [1998] 4 IR 76. In refusing relief claimed, Morris J. stated at p. 82:

"There can be no doubt that the first respondent had jurisdiction to embark upon the consideration of the this District Court appeal and what the issue comes down to is a consideration of whether his decision was so obviously incorrect as to deprive them of jurisdiction. Put another way, this Court has to consider whether in the words of the Law Lords in Anisminic v. Foreign Comp. Comm. [1969] 2 AC 147, approved by McMahon J. in the [State (Cork Circuit Court) v. Fawsitt (Unreported, High Court, McMahon J., 13^th March, 1981)], there has been 'an extreme example of an error of law'. It appears to me that what this Court must consider is whether the facts of the case as presented to the first respondent could under any circumstances have justified the first respondent in reaching the decision he did. If there is no basis upon which he could have been justified then this Court should hold that there was a jurisdictional error. If there was a basis upon which he would have been justified in holding as he did it should not intervene."

In this case Ms. Courrell submitted that there had been no such extreme error of law and the facts provide a basis upon which the District Court judge could have reached the conclusions which she did.

Conclusions.

The decision of a court when making a decision in relation to jurisdiction under Brussels II bis on habitual residence is one of mixed fact and law – perhaps predominately fact. It is a question to be determined by the court taking into consideration a multiple of factors and in each case, within that multifactoral context, each of the factors may be given a different weight from case to case. I am satisfied that none of the circumstances as described in the judgment of Morris J. in Farrelly v. Devally, as cited by Ms. Courrell in her submissions, arise to lead this court to set aside the decision of the learned District Court judge in relation to her determination of jurisdiction. The legal parameters set out by McGuinness J. in the C.M. v. Delegación Provincial de Malaga case, as refined by the High Court, were clearly met by the District Court decision sought to be impugned. In reaching the foregoing conclusions, of which I am strongly convinced, I took time to consider all of Mr. Power's arguments and especially his argument that the issue of jurisdiction required legal certainty and that that certainty was provided overwhelmingly by the fact that the notice party father was not the legal guardian whereas the applicant mother was the legal guardian entitled to the benefit of s. 10 (2) para. (a) of the Guardianship of Infants Act 1964 as the person who

"…shall, as against every person…be entitled to take proceedings for the restoration of his custody of the infant against any person who wrongfully takes away or detains the infant and for the recovery, for the benefit of the infant, of damages for any injury to or trespass against the person of the person of the infant."

I have some sympathy with Mr. Power's quest for certainty in relation to a matter of jurisdiction. The Irish experience in relation to many instances of jurisdiction, like the requirement in equity cases of a rateable valuation under £100 or its equivalent, gives rise to a black and white, almost binary "yes or no", issue in relation to the question of the jurisdiction of the Circuit Court in relation to many equity matters. Even where there is a chance of concurrent jurisdiction of the Circuit Court in two different counties or circuits as in the case of a claim in tort where the venue may be where the defendant resides or where the tort was committed, the issue is not very complicated and once a court in a particular county accepts jurisdiction the issue after resolution of conflict questions becomes black and white again. Mr. Power's argument thus could be characterised by a rush to certainty as to jurisdiction based on the bedrock of the rights of the applicant under the Act of 1964. He was buoyed in his view by the manner in which the Supreme Court have upheld the prior rights of the mother as against the natural father who is not a guardian. However even in this respect the court has to have regard to the fact that the Supreme Court have in certain instances recognised the rights of the natural father, for instance access rights, not as a rule of law but as a 'rule of prudence'. In the situation where an informal relationship has evolved between father and children, such as in this case, the 'rule of prudence' is a matter to be taken into account by the District Court in determining jurisdiction especially having regard to the general tenor of the Brussels II bis Regulation which prioritises the child's interests. It is of some interest to note that the forms provided for District Court applications allow for applications by parents (fathers) who are not legal guardians.

In fairness, the so called rush to certainty in deciding jurisdiction may not only be an Irish/common law pre-occupation. The interest in certainty is given a European dimension as well – for example in the Commission's Green Paper on applicable law and jurisdiction in divorce matters presented on the 14^th March, 2005 (COM(2005)82 final) at para. 2.1. p. 3 under the heading of "Lack of legal certainty and predictability for the spouses" in relation to the conflict of law rules divorce matters is it stated:

"Considering the difference between, and complexity of, the national conflict-of-law rules in divorce matters, it is often difficult to predict which national law will apply in a given case. This is particularly the case in family situations where the spouses have no common habitual residence or nationality, but the problem may also arise when couples of the same nationality split up and move to different Member States."

This shows a concern for lack of legal certainty, certainly in relation to 'conflict-of-law rules' following Brussels II bis.

I consider that the rush to certainty of jurisdiction is met within the scheme of the Brussels II bis regulations, not by reason of the emergence of certain answers in relation to the criterion of habitual residence, but in relation to this certainty of outcome once proceedings have been initiated in any of the Member States. This certainty of outcome is exemplified by the comment in the supplement to "International Movement of Children" – the new Brussels 2 bis Regulation by Nigel Lowe, Mark Everall Q.C. and Michael Nicholls Family Law, 2005 on p. 22 as follows:-

"5.24 The new Brussels 2 will not, however, put an end to all parallel actions. But where two actions are brought concurrently, then, under the terms of Article 19(2) and (3) it is the court first (properly) seized that has priority."

The court second seized is required of its own motion to stay any proceedings until the court first seized decides whether it has jurisdiction. If it does so decide, the second court must then dismiss the application. The rigour with which the European Court of Justice applies the policy of the procedure described in my view is highlighted in the decision relating to similar procedures under the Brussels Convention on the recognition and enforcement of judgments in civil and commercial matters in Case C-351/89 Overseas Union Insurance Limited v. New Hampshire Insurance Company [1991] E.C.R. I – 3317.

In Stone, EU Private International Law (2006) at p. 385 the author states:-

"… assistance in the interpretation of the Brussels II and IIA Regulations can be obtained from the Borrás Report on the Brussels II Convention."

I have read the Borrás Report [1998] O.J. C 221/27 when considering the question as to certainty of jurisdiction and I am satisfied that the purpose of the Brussels Convention and hence the Brussels II bis Regulation was to prevent forum shopping and the uncertainty of parallel proceedings and, in relation to issues of parental responsibility, to provide a forum which would more properly serve the interest of the child than others available under wider 'conflict-of-law rules'. I am satisfied that the interests of certainty are met to a limited extent not by reason of the inherent qualities of the criterion of 'habitual residence' but by reason of the rigorous and strict enforcement of the decision of the court first seized in relation to jurisdiction. In practical terms in applying this principle to the present case, it would seem to me that, in the event of proceedings having been initiated by the applicant in Scotland a short time after the initiation of the Irish proceedings but before consideration of the jurisdiction issue by the Irish court, there might be two different views validly held in relation to the jurisdiction of either court- just as Mr. Power was able in this case, to argue the second view in relation to the jurisdiction of the Irish court. However, in the event of the Irish court deciding and accepting the jurisdiction under the Brussels II bis Regulation then the Scottish court would have been obliged to stay the Scottish proceedings and decline jurisdiction notwithstanding that the Scottish court might take the second view. The rigour and certainty of this result is underpinned, as is explained in the Borrás Report, on the acceptance by the Member States that the courts in each Member State are equally capable and competent in dealing with family law matters - a strengthened view of the concept of comity of courts. Once this process is concluded, then the rush for certainty as to jurisdiction is then fully served. It is this concept of certainty, arising from the strict application of the Convention, which in my view should govern the examination of the questions raised in this case and the version posed by Mr. Power. This certainty of result in relation to jurisdiction is further authority for my decision in refusing judicial review as it would justify it even in the absence of the line of authorities exemplified in the Farrelly v. Devally case cited above. The question must be posed as to why a Scottish judge should be bound to accept the decision of the Irish court in relation to the jurisdiction on parental responsibility in the hypothetical example discussed by me if the Irish court was free to judicially review the decision on less rigorous criteria than the scheme envisaged by Brussels II bis. To allow a less rigorous scheme for judicial review would be to undermine the Brussels II bis Regulation and be contrary to Irish obligations under the regulation.

The timeliness of application.

In Irish domestic law, time is of the essence where the interests of infants are concerned. The position is no less rigorous under the regime of Brussels II bis.

The 1980 Hague Convention on the Civil Aspects of International Child Abduction dealing with applications for the return of abducted children is now intertwined with Brussels II bis and provides very strict time limits for courts to deal with applications for the return of abducted children. In Stone, EU Private International Law, (2006), the author has stated that the provisions of Brussels II bis relating to references in certain instances by the courts of Member States to questions for decision by the European Court of Justice as being "absurd" by reason of the necessarily long delays in current reference procedures before that court and having regard to the interest of children in the speedy resolution of disputes relating to them. I am satisfied that the application in this case was not made in a timely fashion. It was made only after the Circuit Court had decided on guardianship and access issues and there has now elapsed in the lives of the children concerned in this case an unacceptably long time. The hearing of this case was probably expedited by the decision of McKechnie J. when dealing with the judicial review list to refer it for hearing to the family law court where speedy arrangements were made for the hearing. Accordingly if I had not refused the application for judicial review on the substantive grounds I would nevertheless had refused it on the basis that the application was not made in timely fashion. This view is in line with the judgment of Barr J. in the DPP v. McDonnell (Unreported, High Court, Barr J., 1^st October, 1990)

During the course of the arguments in court Mr. Power suggested that the court would give directions in relation to how the courts should decide on issues of jurisdiction under Brussels II bis. There had been criticism in this case that the applicant did not give evidence, but was represented by her solicitor. I am not satisfied that the situation should be trammelled by any directions given by the court. The situation would seem to be analogous to the informal and summary procedure used by the District Court in deciding at the commencement of the hearing of a criminal charge whether the charge relates to a minor offence which may be dealt with in the District Court. In many such instances the enquiry is limited only to hearing informally from the Gardaí or prosecution authorities in relation to an outline of the facts. Of course subject to the discretion of the judge a more detailed and forensic enquiry may be directed in certain cases. What happened in this case seems to be roughly analogous to that type of approach in criminal cases and I see nothing wrong with it. If I were to make comment on procedures relating to this matter I would prefer to express my view that questions must be asked as to the appropriateness of the low threshold test for obtaining liberty to seek judicial review, and the lack of any necessity to put the parent or the representative of the child on notice that the application is to be made. The Guardianship of Infants Act 1964 and the Constitution provides that the interests of the child are paramount. The Brussels II bis Regulation echoes these provisions. I see great difficulty in recognising the paramountcy of the interest of the child with the ex parte low threshold procedure by which judicial review proceedings are commenced. However, I do not think that it is appropriate for me to the provide any guidelines or directions in relation to these matters – it is a matter perhaps for the Rules Committee or the legislature to examine the circumstances arising in cases such as this and to provide the appropriate procedures.

One matter which is entirely outside the scope of the judicial review but which, following from an extensive reading of the papers in the case, arises from the enforcement documentation prepared by the Irish authority is the issue as to whether the voice of the child was heard, and if not, why not. I consider that the parties should be advised by the court, and in the interests of the court in ensuring the free movement of judgments as envisaged by the Brussels II bis Regulation, to seek to have this matter addressed in whatever way they are advised.

Approved: Abbott J.