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Casey v Cervi [2017] EWHC 1669 (Fam) - (Mrs Justice Roberts) 5 July 2017

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Non-recognition of Irish order where child’s voice had not been heard in the Irish proceedings

Summary : An order had been made in England in November 2016 which recognised and enforced a previous order made in the Republic of Ireland. The Irish order had transferred sole residence of the child (“E”) to the father (“F”). At the time the order was made, the child had been living in England with the mother (“M”) and her half-sister (“S”) for about a year. 

M’s case was based upon Article 23(b), (c) and (d) Brussels IIR. In particular, Article 23(b) considers whether a decision was made without an opportunity for the child to be heard, posing three questions:

  1. was the order given in a case of urgency?
  2. if not, was the child given an opportunity to be heard?
  3. if not, does that failure amount to a violation of fundamental principles of procedure in this jurisdiction?

Held: Mrs Justice Roberts found that the obligation to provide the child with an opportunity to be heard was clearly engaged and notes that ‘in every case the court is required to ensure that the child is given the opportunity to be heard. That means asking the questions, ‘whether and if so how is the child to be heard’ … It is not the answer that is key to the question before this court but the fact that the question must be asked’.

Mrs Justice Roberts concluded that E’s voice had not been heard in the Irish proceedings and that therefore the order of January 2016 was not entitled to recognition as a matter of English law.

The Article 23 (c) and (d) grounds (judgment in default of service or insufficient time to arrange for a defence and/or lack of an opportunity to be heard) were also considered, raising the following three questions:

  1. was the judgment given in default of an appearance by M?
  2. was M served in sufficient time to arrange her defence?
  3. has she accepted the judgment unequivocally?

The issue for the judge was whether M’s rights were sufficiently protected as a result of the procedure adopted by the Irish court so as to safeguard her right to a fair hearing and her rights of defence. It was determined that F had failed to make out his case on the balance of probabilities in this respect and declined to accord recognition to the order of January 2016. M had also relied upon procedural points relating to the registration of the Irish order: Mrs Justice Roberts accepted F’s submission that these irregularities should be waived.

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