Jackson J has granted an application by the non biological mother and co-parent of a child for a free-standing declaration of her article 8 right to family life.
Jemma Dally, Partner in the Adoption and International Child Care team represented Ms L.
The case concerns a child who was born as a result of artificial insemination by her biological mother and lesbian partner. The couple decided to have a baby together and the child was conceived by artificial insemination outside of a licenced fertility clinic. The sperm donor has had no involvement in the child’s life.
At the time of the conception the mothers were in a relationship and at the time of G’s birth Ms L and Ms C lived together in England. The conception was a joint effort, plans for the child’s arrival were jointly made, Ms L was present when G was born in England and she played a full and equal part in looking after her while she remained here. She even took steps to enable herself to suckle and breastfeed G.
Ms C acknowledged that the decision to have a child was a joint one and that the couple agreed that they would be ‘equal parents’
Ms C and Ms L twice went together to register G’s birth. They attempted to register both their names as parents, but this was not permitted because they did not conceived in a licenced fertility clinic and were not in a civil partnership – Ms L is therefore not considered to be a parent to G within the meaning of the HFEA 2008.
On the 3rd January 2014, when G was 2 ½ months old, Ms C removed G to Ireland and has remained there since. Ms L has had no further contact with G. She was extremely distressed following G’s lawful removal.
Ms L made two applications to the court; the first for permission to apply for contact and residence orders within the Children Act 1989 and the second for declarations that at the point of time of G’s removal to Ireland that Ms L was acting as her psychological parent and that they shared family life within the meaning of Article 8.
The applications were opposed by Ms C who argued that the court had no jurisdiction to hear the matters.
The Judge found that there was “no doubt that Ms L was as involved as she could have been” but determined that as G was not habitually resident here at the date of the application, there was no jurisdiction for this Court to determine the Children Act 1989 applications. They were therefore dismissed by the Court.
The Judge determined that it did however have jurisdiction to deal with Ms L’s second application for declarations that she was a psychological parent and that she shared family life within the meaning of Article 8.
The Judge first considered the application for a declaration that Ms L was acting as G’s ‘psychological parent’ but he did not regard the existence or non-existence of psychological parenthood as an apt subject for a declaration. He stated “it adds nothing in reality to the application for a declaration concerning the existence of family life”. The Judge refused this application.
In respect of the declaration sought by Ms L that she shared family life with G within the meaning of Article 8, Jackson J noted that there was no precedent for the application for a freestanding declaration of human rights so returned to first principles considering the language in cases of forum non conveniens, namely that it should be a natural and appropriate forum for the resolution of the issue in question, and that there is not some other forum in which the case may be tried more suitably for the interests of all the parties and the ends of justice.
The Judge did not accept that the declaration “would encroach upon the Irish court’s territorial jurisdiction” and did not accept “that the issue of Art. 8 rights can only be determined by a court considering substantive remedies relating to the child.”
It was argued by Ms C that as no public authority had acted contrary to Miss L’s human rights nor was she relying on her Convention rights in any substantive proceedings that she was precluded from bringing a claim under s.7(1) of the Human Rights Act. This was rejected by Jackson J as the application was not bought under s. 7(1) but was an application for a free standing application. He went on to say there being nothing explicit within the Act to state that declarations cannot be granted in the absence of proceedings brought under s.7, there is no good reason to infer such a restriction and his overall conclusion was that he therefore had jurisdiction to make such an application.
He observed that there is no precise definition of ‘family life’ in Convention case law and as such “it is a question of fact and one of substance, not form.”
Jackson J granted the declaration on the basis that it was “compelling” that Ms L did have a right to family life at the time of G’s removal and this was not outbalanced by Ms C’s article rights.
Jemma Dally said “The importance of this decision is yet to be seen. Prior to this judgment there had been no recognition in English Courts within the family jurisdiction that a party could apply for a freestanding declaration of the existence of family rights within the Human Rights Act. Whilst the courts had recognised that the rights exist and should be protected and acknowledged, the usual application of Human Rights was considered alongside other applications such as residence and contact or when courts are considering the removal of a child from a parent.
As far as this case is concerned, the decision will provide G with an objective account of the circumstances of her conception and the role that Ms L played in her early life. This is important for G’s future welfare and as part of her understanding of her life story as a child conceived by way of artificial insemination. It may also assist Ms L in any applications she makes to the Court in Ireland to try and re-establish her relationship with G, who she considers to be her daughter.”
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