Case of U v E: EWFC 2024 39 Explores Complexities of Jurisdiction, Habitual Residence, and Domestic Abuse in Family Law

Citation: [2024] EWFC 39
Judgment on

Introduction

The case of U v E: EWFC 2024 39 delves into issues of parental responsibility, habitual residence, jurisdiction, and domestic abuse within family law. This inquiry necessitates an examination of the legal principles surrounding jurisdiction under the 1996 Hague Convention and the challenges faced when habitual residence shifts during ongoing legal proceedings.

Key Facts

The case surrounds a four-year-old child, R, whose biological mother is the respondent, while the applicant, not biologically related to the child and lacking parental responsibility, considers herself a psychological parent. The proceedings began when the respondent relocated to Ireland with R, leading to a prohibited steps order which was issued too late to prevent the move.

Initial jurisdictional questions were unchallenged due to R’s habitual residence in England and Wales at the time of application. However, complications arose when the respondent challenged the continuation of jurisdiction, given R’s eventual habitual residence in Ireland.

The case involves serious allegations of domestic abuse, resulting in a fact-finding hearing and synthesized reports, the significance of which will be discussed under legal principles.

Habitual Residence and Jurisdiction

A central legal principle in this case is the conceptualization of ‘habitual residence’ within the jurisdictional framework of the 1996 Hague Convention. The court grappled with whether the relevant date for determining habitual residence — and thus jurisdiction under Article 5 — is at the date of the hearing or when the court is first seized of the matter. MacDonald J’s and Lieven J’s opposing views in London Borough of Hackney v P and Ors [2022] and Derbyshire County Council v A Mother and Others [2023] respectively, reflect this conflict. Ultimately, the Court of Appeal’s decision in London Borough of Hackney v P and Others (Jurisdiction: 1996 Hague Protection Convention) [2023] resolved this by affirming the relevant date is when the court is seized, affecting the applicant’s acceptance of the Irish Court’s exclusive jurisdiction.

Parental Responsibility and Psychological Parenthood

The applicant’s status as a psychological parent without legal parenthood or else parental responsibility underscores the complexity of such cases. The principal legal question was whether someone in the applicant’s position could pursue a case in Ireland effectively, influencing whether the current proceedings should transfer to the Republic of Ireland or remain under the jurisdiction of the English court.

Domestic Abuse and Impact on Proceedings

The careful and detailed judgment by District Judge Cronshaw on allegations of domestic abuse represents a significant component of the child’s welfare consideration, which is a cornerstone of family law practice. The proceedings’ direction hinged on the outcome of the domestic abuse findings, thereby emphasizing the gravity of these allegations within the legal evaluative process.

Outcomes

The resolution of jurisdictional questions led to the acknowledgment that the Irish Court held exclusive jurisdiction. Subsequent expert advice clarified that the applicant would have an avenue to pursue the case in Ireland. Consequently, the ongoing proceedings in the English court were ceased with an agreement to commence applications in the Irish Court promptly.

Permission was granted for the disclosure of all documents from the English proceedings to the Irish Court, facilitating an informed judicial assessment. The judgment did not require a determination of when habitual residence objectively shifted, acknowledging this as an unnecessary evaluation.

Conclusion

The case of U v E: EWFC 2024 39 illustrates the interwoven complexity of international jurisdiction, habitual residence, and the rights of psychological parents within family law. The ruling emphasizes the importance of recognizing when habitual residence changes and how it affects jurisdiction under the 1996 Hague Convention. Furthermore, it underscores the evaluative weight granted to detailed and well-supported findings concerning allegations of domestic abuse within child welfare considerations. As demonstrated, careful assessment and strategic anticipation are essential to navigate proceedings when jurisdictional landscapes may shift mid-case, posing potential delays and requiring re-litigation in alternate jurisdictions.

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