In the matter of the Child Abduction and Enforcement of Custody Orders Act 1991.

And in the matter of C.D. and D.D., infants.

S.D. (plaintiff) v R.B. (defendant).

Child - Abduction Luxembourg Convention - Residence order made whereby children named in it were to reside with the plaintiff - Children taken from UK to Ireland by defendant - Declaration of unlawful removal obtained - Application to enforce that order - Whether service of documents in order - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6) - European Convention on the Recognition and Enforcement of Decisions Concerning the Custody of Children and on the Restoration of the Custody of Children 1980, Articles 4, 9 and 13.

The High Court (before the President, Mr Justice Costello); judgment delivered 21 May 1996.

IT is perfectly clear that the Luxembourg Convention contemplates a defendant who does not appear and does not take any part in proceedings being served with a document originating or instituting the proceedings, or an equivalent document, which led to the decision whose recognition and enforcement is sought. Article 13 requires that a document be sent to this State which establishes that the defendant was duly served with the document that instituted the proceedings. The whole scheme of the Convention requires that the court should not give effect to an order declaring unlawful something that occurred in the past if there has been no proper service of that order. Alternatively, if the failure to serve can come within Article 9 the court - can give effect to it.

Giving a party notice on a Saturday of a hearing in a foreign country on the following Monday is not proper service. Applying the ordinary principles in relation to service, such service is not adequate. However, a party can only rely on sub article 1(a) of Article 9 where such failure to serve can be shown that the defendant had concealed her or his whereabouts from the person instituting the proceedings in the state of origin.

The failure to effect service in the instant case was not one which could be excused under sub article 1(a) of Article 9.

The High Court so held in refusing the relief claimed by the plaintiff.

Ma ire Whelan BL J6r the plaintiff Sabrina O'Toole BL for the defendant.

MR JUSTICE COSTELLO said that this application related to two young children, C.J.D., born 30 March 1991 and D.T.D. born 19 April 1992. Although there was some controversy between the parties on certain issues, Mr Justice Costello said that it was agreed that the parties had been living together until the defendant left their home in London with the two children and returned to her home in Ireland.

Mr Justice Costello said that very shortly after the defendant left with the two children the plaintiff instituted proceedings in England in the County Court, and these proceedings were subsequently transferred to the High Court. After a number of applications to the County Court a residence order was made in the Family Division of the High Court in London to the effect that the children named in it were to reside with the applicant (the plaintiff in these proceedings, Mr S.D.). It was significant to note that no proceedings had been served on the defendant at this time. The evidence satisfied Mr Justice Costello that the defendant had in fact left England when the order of 22 March 1996 was made and was at that time residing in Ireland. Later, the plaintiff ascertained the defendant's whereabouts and certain documents were served on her here in Ireland on 13 April 1996.

Mr Justice Costello said that on 15 April 1996, which was the Monday after the service of the documents on the defendant, an order was made in the High Court in London declaring that the removal of the minors C.J.C. and D.T.D. by the defendant from the jurisdiction that court was unlawful pursuant to the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children. The request made by the authorities in the United Kingdom to the authorities in Ireland was dated 22 April 1996. That request was a request to enforce the order of 22 March 1996, that was to say, the residence order.

Mr Justice Costello said that the proceedings which were now before the court were instituted by a summons issued in this jurisdiction on 30 April 1996 seeking an order pursuant to the provisions of Part III of the Convention. He said that the Convention, which is part of Irish domestic law, makes provision for an application such as occurred in this case. Article 4.2 provides that the application shall be accompanied by the documents mentioned in Article 13. Mr Justice Costello then set out the provisions of Article 13:

A request for recognition or enforcement in another Contracting State of a decision relating to custody shall be accompanied by: (c) in the case of a decision given in the absence of the defendant or his legal representative, a document which establishes that the defendant was duly served with the document which instituted the proceedings or an equivalent document.

Mr Justice Costello thought it was perfectly clear that the Convention contemplated a defendant (who did not appear and did not take any part in the proceedings) being served with the document originating or instituting the proceedings, or an equivalent document, which leg, to the decision whose recognition and enforcement was sought. He said that the article required that a document be sent to this State which established that the defendant was duly served with the document which instituted the proceedings. The notification from the United Kingdom authorities made no reference to an affidavit of service but Mr Justice Costello was informed and accepted that in fact there was delivered with the application by the United Kingdom authorities an affidavit of service which had been exhibited in these proceedings. However, this affidavit of service did not show that the originating summons was ever served on the defendant, nor did it show that any documents were served on the defendant prior to the order of 22 March 1996. Later, on 13 April 1996, there were documents served.

So it appeared that, unless there was some other provision of the Convention which assisted an applicant in circumstances where an order had been obtained in proceedings which had not been served on a defendant, it would not be possible to enforce the order because Article 13 could not be complied with. Mr Justice Costello said that that would obviously be a highly undesirable situation but, not surprisingly, a provision had been made in the Convention.

Mr Justice Costello said that Article 9 of the Convention, which was relevant to these proceedings, deals with cases of improper removal, the claim made in these proceedings. The concept of improper removal is defined in Article 1 as meaning the removal of a child across an international frontier in breach of a decision relating to his custody. On the facts of this case, there was no improper removal, according to that part of the definition, because the two children had been removed before the order of 22 March 1996 was made giving residence rights to the plaintiff. But the definition section went on to provide in sub paragraph (ii) that improper removal is a removal which is subsequently declared unlawful within the meaning of Article 12. Mr Justice Costello said that what was relied upon in this case was the fact that an order was made in the High Court in London on 15 April 1996 which declared unlawful the removal of the children from the United Kingdom. That order declared that the removal of the minors C.J.D. and D.T.D. was unlawful pursuant to the European Convention.

Mr Justice Costello said that, the plaintiff argued that it had, been shown that this was an improper removal and reliance was therefore placed on Article 9 of the Convention which provided in sub article 1(a) as follows.

In the case of a decision given in the absence of the defendant or his legal representative, the defendant was not duly served with the document which instituted the proceedings or an equivalent document in sufficient time to enable him to arrange his defence; but such a failure to effect service cannot constitute a ground for refusing recognition or enforcement where service has not been effected because the defendant has concealed his whereabouts from the person who instituted the proceedings in the State of origin.

Mr Justice Costello said that what was to be considered was whether the plaintiff could rely on sub article 1(a). In order to adjudicate on that issue, he had to consider whether the word decision" there covered only the decision of 22 March 1996 or whether it also covered the decision of 15 April 1996. He thought that word covered both decisions. The decision of 15 April 1996 was vital to the plaintiff's case. If that decision was not effective for some reason then there was no improper removal; and if there was not an improper removal then reliance could not be placed on Article 9. And if Article 9 could not be relied on then there had been no compliance with Article 13 and the plaintiff's claim failed. The important issue in this case was whether reliance could be placed on Article 9. Mr Justice Costello, having considered the matter carefully, did not think it could. He thought the whole scheme of the Convention required that the court should not give effect to an order declaring, unlawful something that occurred: in the past if there had been no proper service of that order. Alternatively, if the failure to serve could come within Article 9 the court could give effect to it.

Mr Justice Costello said that the situation in relation to the order of 15 April 1996 was that service of the application was made on 13 April 1996. It had not been made clear in the affidavit of service what that application referred to but he was told by Counsel that it was notification of the application which was subsequently heard on 15 April 1996.

The question which arose was whether, if there was service of notice of the application to make the declaratory order which was subsequently made on 15 April 1996, that service was adequate and whether there was proper service of the notice. Mr Justice Costello did not agree. He did not think that giving a party notice on a Saturday of a hearing in a foreign country on the following Monday was proper service. He thought that the length of time given was totally inadequate to arrange legal representation or to attend the court.

Mr Justice Costello, in applying the ordinary principles in relation to service, held that the service effected to give notice of the application of 15 April 1996 was not adequate. He therefore did not think that the plaintiff was entitled to rely on sub article 1(a) because failure to effect service could only be relied upon if it could be shown that the defendant concealed here whereabouts from the person instituting the proceedings in the State of origin. At that time the defendant had not concealed her whereabouts; her whereabouts were known at that time but it was true that she had earlier concealed her whereabouts.

But whether or not the steps taken would have permitted the plaintiff to rely on sub article 1(a) did not now have to be decided. The fact was that the defendant was not served until 13 April with documents indicating that a hearing would be held in London on, 15 April. As Mr Justice Costello found that the failure to effect; service was not one which could be excused under sub article 1(a) of Article 9 he held that the plaintiff could not rely on the order declaring the removal wrongful because notice was not properly or adequately served in time to give the defendant an opportunity to contest the hearing, even if she had wished to do.

He was not satisfied on the evidence before him that there was an improper removal within the meaning of the convention. If there was no improper removal within the meaning of the Convention the plaintiff could not ask the court to enforce the order of 22 March 1996 because no proceedings had been served on the defendant prior to the making of that order.

Mr Justice Costello therefore refused the relief claimed by the plaintiff in these proceedings.

Solicitors: Donal Quinn (Law Centre, Gardiner Street, Dublin) for the plaintiff; John McDaid (Law Centre, Longford) for the defendant.