Supporting Documents:

BETWEEN:

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES.

RESULT: The Court does not grant leave to the respondent/appellant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1. This determination relates to an application for leave to appeal to the Supreme Court from a judgment of the Court of Appeal delivered on the 4th November, 2015, and from a supplemental judgment delivered on the 19th November, 2015, which application is brought by J. Z. R., the respondent/appellant, who is referred to as “the mother”.

2. R.R., the applicant/respondent, is referred to as “the father”.

Jurisdiction

3. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution.

4. Article 34 of the Constitution provides for the public administration of justice; describes the courts established by the Constitution, and those which may be established by law; provides for the full and original jurisdiction of the High Court; establishes the Court of Appeal under Article 34.2; and sets out its appellate jurisdiction under Article 34.4.1°. This states:

“1° The Court of Appeal shall—
i save as otherwise provided by this Article, and

ii with such exceptions and subject to such regulations as may be prescribed by law,

have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.”

6. Article 34.5.4° concerns appeals where a litigant seeks to come directly from the High Court to the Supreme Court.

7. The article relevant to this appeal, where the Court of Appeal has already given judgment on a matter, is Article 34.4.3°, which states:-

“3° The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that—

i the decision involves a matter of general public importance, or

ii in the interests of justice it is necessary that there be an appeal to the Supreme Court.”

9. Primarily, this Court is now “subject to such regulations as may be prescribed by law”, an appellate jurisdiction from the Court of Appeal. Such an appeal may only be exercised provided that this Court is satisfied either that the relevant decision of the Court of Appeal “involves a matter of general public importance” or, alternatively, that it is, “in the interests of justice”, necessary that there be an appeal to this Court. The constitutional framework established by the 33rd Amendment of the Constitution thus requires, in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal, that it be demonstrated that either “a matter of general public importance” arises, or that “in the interests of justice it is necessary that there be an appeal” to this Court.

10. The statutory framework for the exercise of the right to apply to this Court for such leave is to be found in the Court of Appeal Act, 2014, and in particular the provisions of s. 44 of that Act, which inserts a new s. 7 into the Courts (Supplemental Provisions) Act, 1961.

11. The Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.

12. The Constitution has retained the entitlement of one appeal as of right from the High Court to the Court of Appeal, subject to express exclusions or regulation by statute. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined principally to cases where, as a result of the determination of the Court of Appeal, the decision of that Court is such that the issues raised on a proposed appeal would involve a matter of general public importance or would be such that it is in the interests of justice that there be a further appeal to this Court.

Background Facts

13. Facts were set out in the judgment of the Court of Appeal delivered on the 4th November, 2015, including the following. The mother is the mother of two boys. She appealed to the Court of Appeal from a decision of the High Court (Abbott J.) of the 31st July, 2015. The High Court had ordered that, subject to some undertakings by the father, and certain conditions, the two boys were to be returned to the jurisdiction of the courts of the Federal Republic of Germany as soon as possible, or by the 14th August, 2015.

14. The mother is a Polish national, and has represented herself in these proceedings. She appears to have been unable to obtain legal aid in this jurisdiction. The father is a German national, who has been legally represented through the legal aid system in this jurisdiction.

15. The father and mother were married to each other in Poland in April, 2010. They then lived in Germany, where their elder son, referred to as “B”, was born in 2010. Their younger son, referred to as “Y”, was also born in Germany, in 2012.

16. On the 8th December, 2014, the mother brought the two boys to Ireland without the knowledge or consent of the father. On arrival she notified the father and the Gardaí of her whereabouts. The mother has family members living in Ireland. In the days after her arrival there were several communications between the mother and father in relation to the future living arrangements for the two boys, mother and the father. No agreement was reached. The father commenced proceedings before the Family Division of the local Court in Germany in early February, 2015, and on the 16th February, 2015, made an application to the German Central Authority for the return of the boys to Germany pursuant to the Hague Convention and Regulation 2201/2003.

The High Court

17. On the 31st July, 2015, the High Court declared that on about the 8th December, 2014, the mother did wrongfully remove the two boys from the jurisdiction of the Federal Republic of Germany without the consent of the father, and without lawful authority to do so within the meaning of Articles 3 and 5 of The Hague Convention. It was ordered inter alia, that the two boys be returned to the jurisdiction of the Courts of the Federal Republic of Germany as soon as possible or by Friday the 14th August, 2014, and that the mother take all steps and do all things necessary to facilitate the summary return of the children to the jurisdiction of the Federal Republic of Germany.

Court of Appeal

18. The mother applied to the Court of Appeal for a stay on the order of the High Court of the 31st July, 2015. The Court of Appeal granted a stay pending the determination of the appeal, and gave directions as to the appeal, on the 13th August, 2015.

19. The Court of Appeal, on the 4th November, 2015, dismissed the appeal, and on the 19th November, 2015, ordered that the two boys be returned to the jurisdiction of the Courts of the Federal Republic of Germany on or before the 23rd December, 2015.

Application

20. On the 30th November, 2015, the mother lodged an application for leave to appeal to the Supreme Court.

Reasons from the Mother as to why Supreme Court should grant Leave to Appeal

21. The mother gave the following reasons as to why the Supreme Court should grant leave to appeal:-

“The Court of Appeal gave a number of grounds for refusing the [mother’s] application.

Firstly the Court of Appeal held that the [father] had not acquiesced in bringing the minor children to Ireland. The Court of Appeal in its decision failed to have due regard or any regard to the actions of the [father] subsequent to the e-mail of 16 December 2014 which showed acquiescence.

In arriving at its decision the Court of Appeal failed to have due regard to the `exceptional circumstances' of this case which required the hearing of oral evidence pursuant to Order 133 Rule 5(2) of the Rules of the Superior Courts concerning the ongoing actions of the [father] and the ongoing medical issues concerning the minor children. By taking this approach the Court of Appeal failed to have due regard to the decisions in Neulinger and Shuruk v. Switzerland, X v. Latvia, Court of Appeal of Thessaloniki, TMM v MD and S. v S. & S.

Furthermore, the Court of Appeal in its decision failed to have due regard to Article 20 of the Hague Convention and the decision of the Supreme Court in C. G v M G and the decision in Canon v Canon regarding the settlement of the two minor children in Ireland.

The Court of Appeal failed to have due regard to the full import of Council Regulation (EC) No. 2201/2003 in considering whether the custody proceedings be transferred to the Irish Courts and in particular the approach advocated by the Supreme Court in C.G. v M.G.

The Court of Appeal failed to have due regard to the grave risk/ intolerable situation the [mother] and two children would face on returning to Germany and in particular failed to correctly apply the principles in IP. v. T.P.”

22. The father gave the following reasons for opposing leave to appeal:-

(i) The [mother] has not disclosed a matter of general public importance that there be an appeal to the Supreme Court.

(ii) The [mother] has not disclosed why, in the interests of justice, it is necessary that there be an appeal to the Supreme Court.

(iii) Without prejudice to the foregoing, the Court of Appeal correctly reviewed the evidence and material proffered by the [mother] in support of her contention that the [father] acquiesced in the abduction of the children the subject matter of the proceedings and agreed with the findings of the Learned Trial Judge (Abbott J.) that the email of the 12th December, 2014 referred to by the [mother] and the other facts and allegations deposed to by her in her Affidavits did not constitute ‘acquiescence’ as that term is used in Article 13 of the Convention or in Council Regulation (EC) 2201/2003 Article 10. The Learned Trial Judge and the Court of Appeal were entitled to come to the view they did on the acquiescence defence based on the evidence proffered by the [mother].

(iv) The Court of Appeal had before it the evidence to which the [mother] had deposed in her affidavits concerning the [father’s] actions subsequent to the email of the 16"' December, 2016 (being the email wherein the [father] formally demanded the return of the children) in support of her contention that the overall factual picture constituted acquiescence on the part of the [father] to the abduction of the children. At paragraph 35 of its judgment the Court of Appeal considered the more significant acts by the [father] upon which the [mother] sought to rely, namely the visit by the [father] in May, 2015 with the school in Bray that the older boy was attending, and alleged statements by the [father] to the District Court in Bray in January, 2015. In addition the Court of Appeal considered the written submissions and heard the oral submissions of the [mother] on this point. The Court of Appeal correctly applied the law, in particular the Supreme Court decision of RK v JK [2000] 2 IR 416 finding inter alia that acquiescence must be real and must be ascertained on a survey of all relevant circumstances. The Court of Appeal correctly distinguished the facts of the present case from the facts in the South African case of Smith v Smith 2001 (3) SA 845.

(v) The Learned Trial Judge and the Court of Appeal correctly dealt with the proceedings in the summary manner envisaged and required under the Convention, the Regulation, the 1991 Act and the Rules of the Superior Courts which is to say by way of affidavit and in ruling out additional oral evidence from a number of parties the [mother] sought to call. Both Courts had the evidence of Dr. Foley in exhibited notes in the Affidavits and his direct evidence was not required. The [mother] was allowed to bring the report of Professor Fitzgerald by way of exhibit in a further affidavit before the Court of Appeal which considered its contents. The evidence the [mother] sought to lead by way of oral evidence was for the main part from witnesses who only came to know the [mother] and/or the children after the wrongful removal or were persons related to the [mother] and, in many instances, whose statements were already exhibited in the Affidavits. There were no 'exceptional circumstances' that required oral evidence in that the veracity of any fact was not the question to be answered by the Court but rather if the allegations were true could the safety of the children be assured on a return either by way of undertakings or via legal protection mechanisms in Germany. The Court of Appeal heard oral submissions by the [mother] that had not been put on affidavit and had noted that no evidence was formally before the Court in relation to any of these additional matters. Both the ,judgments from the High Court and the Court of Appeal explicitly referred to the ECHR case of Neulinger & Shuruk v Switzerland and in applying the same considered the return of these children in the context of their specific overall best interests.

(vi) The [mother] did not raise any adequate argument at the hearings regarding Article 20 of the Hague Convention. The decision of CG v MG 2015 IE SC 12 relied upon by the [mother] concerned a case where a child was permitted by a French Court to travel and live in Ireland pro tem (pending appeal) and thus could establish an habitual residence here whereas the present case contains no such permission or authorization of the move to Ireland either before or after the fact. The decision in Canon v Canon [2004] EWCH CIV 1330 also did not apply as the application in this case was made well within the 1 year time limit set out in Article 12 of the Hague Convention and, as such, the question of settlement of the children was not therefore triggered.

(vii) The Court of Appeal correctly determined that an application to transfer the matter to a Court better placed to hear the case under Article 15 of the Regulation could not be made to it as an appellate court (it was not raised at the hearing in the High Court) but went on to observe that such an application can be made, even at this stage, in Germany in the proceedings ongoing there. In any event, as the Courts of the Requesting State the only option available to an Irish Court under Article 15 of the Regulation is to forward a request to the courts of the children's habitual residence to transfer the case regarding their welfare to Ireland and so it is up to the German Court either way.

(viii) The Court of Appeal correctly determined that the Courts of Germany were best placed to hear and determine the matters the [mother] was minded to raise regarding the general welfare of the children and were the Courts allocated the jurisdiction to make such determinations under Article 10 of Council Regulation (EC) 2201/2003 - especially in light of the hearing scheduled in Germany on the 8th day of December, 2015 at which the [mother] could raise any matters regarding the children, including that the children should remain in their current situation either on an interim or permanent basis if the German Court finds that it is in their best interests that they do so. Furthermore the Court of Appeal in its Supplemental Judgment delivered on the 19th November, 2015 found that the relevant German Court could make orders regarding the manner of any return under their `welfare' jurisdiction in advance of the date of the return of the children Ordered by the Court of Appeal to occur on or before the 23rd December, 2015.

(ix) The Court of Appeal correctly determined that the [mother] had not discharged the onus on her to show that there was a grave risk that the return would expose the children to physical or psychological harm or otherwise place them in an intolerable situation by applying the Supreme Court decision of AS v PS (Child Abduction) [1998] 2 IR 244 and IP v TP and by noting that the German courts can protect the children on their return. The Court noted that the [mother] would herself return with the children and that she could be relied upon to do as much to protect their welfare on a return to Germany as she did on the move to Ireland in the first place. The Court correctly noted that the undertakings proffered by the [father] regarding the return of the [mother] and the children alleviated any concerns regarding the return if her allegations were taken at their height. Finally, the Court in Germany is actively engaged in the case and German law and mechanisms can be relied upon to protect the children if it came to it.”

23. The Court has considered carefully the judgments of the Court of Appeal in this matter, the application of the mother, and the response by the father.

24. The Court is not satisfied that the mother has raised a matter of general public importance, or a matter which in the interests of justice it is necessary that there be an appeal to the Supreme Court, in all the circumstances described in the documents.

25. Neither the factual issues determined in the Court of Appeal, nor the legal issues addressed by the Court of Appeal, raise issues, which satisfy the Court that the application has met, or indeed satisfied, the threshold of the constitutional test.

26. One of the issues sought to be raised by the mother is an issue not previously argued by her. It should be noted that an applicant is not generally permitted to raise a new point which has not been argued in the Court of Appeal.

27. Consequently, on neither of the grounds set out in Article 34.5.3° does this Court have jurisdiction under the Constitution to grant leave to appeal from the Court of Appeal. It follows that the applicant is not entitled to a further appeal.

28. As this Court has no jurisdiction to grant the application for leave to appeal, the Court has no jurisdiction to address any other issue arising on the application, such as a stay. Thus, the order of the Court of Appeal of the 19th November, 2015 stands.

29. Therefore, the Court does not grant leave to the applicant to appeal to this Court from the Court of Appeal.

AND IT IS HEREBY SO ORDERED ACCORDINGLY.