B e f o r e :
Sitting at the Royal Courts of Justice
Anita Guha (instructed by Family Law Group) for Ms C
Hearing date: 2 April 2014
Judgment date: 2 May 2014
Crown Copyright ©
Mr Justice Peter Jackson:
[The] facts of this case stand as a valuable cautionary tale of the serious legal and practical difficulties which can arise where men or women, desperate for a child of their own, enter into informal… arrangements, often in the absence of any counselling or any specialist legal advice.
- For permission to apply for a residence order and a contact order under the Children Act 1989.
- For declarations that at the point of G's departure from England, Ms L was acting as her 'psychological parent' and that they shared family life within the meaning of Article 8 of the European Convention on Human Rights.
The Children Act application
- G had by then been living in Ireland for over seven weeks, a significant period for a baby then aged four months.
- She was dependent on her mother, who was then habitually resident in Ireland, to which she had returned with the intention of remaining permanently and where she has deep, longstanding family and social connections.
- G's removal to Ireland by Ms C was lawful, a fact conceded by Ms L.
- Ms C was quite possibly habitually resident in England between August 2013 and G's removal. (For what it is worth, the facts do not appear to sustain her argument that this four-month period of residence in England was the result of duress. Duress requires a complete overbearing of the will: see Re T  EWHC 3177 (Fam) at . That is not alleged here.)
- G had not been outside England for the first 11 weeks of her life and was very likely habitually resident here during that period.
- Ms L has been habitually resident in England throughout.
- Ms L had had full parental involvement in G's life up to the point of her removal.
The application for declarations
"The high contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Article 1 of this Convention."
She argues that where a person seeks to institute an application concerning their Convention rights, jurisdiction lies with the state that has territorial jurisdiction. This submission is supported by the decision of the European Court of Human Rights in Bankovic v Belgium (App no. 52207/99) where the court interpreted the words 'within their jurisdiction' as reflecting an essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case. Thus, argues Ms Guha, any litigation regarding the child must take place in Ireland. The English court should not seek to adjudicate over any application regarding a child (including the existence or non-existence of Article 8 rights) if it does not have jurisdiction to make substantive orders concerning the child. It would, she says, be perverse for the court to dismiss Ms L's applications for Children Act orders for want of jurisdiction, but then to seek to determine issues relating to Article 8 rights. The English court would in effect be trespassing upon the territorial competence of the Irish court. The fact that Ms L is a British national is irrelevant, given that the issue of Art. 8 rights cannot, she says, be divorced from consideration of the child's present position. Even though BIIR and the Family Law Act 1986 do not apply, their philosophy, which bases jurisdiction on habitual residence or presence, should be respected.