Same sex partner denied access to child in Ireland

Cohabitation|May 6th 2014

A woman has had an application for a contact order with a child living in Ireland refused.

As the judge starkly warned, these proceedings “are one more example of the painful legal confusion that can arise when children are born as a result of unregulated artificial conception.” And “Ms L brings the case in the English court because she believes, perhaps correctly, that she would have few if any legal rights under current Irish law. That cannot, however, affect this court’s approach”

In L v C, the English woman, referred to as ‘Ms L’ in the judgement , had been in a relationship with a woman from Ireland, ‘Ms C’, and they decided to have a child together.

The child, ‘G’, was born as a result of artificial conception using donor sperm with Ms C being the biological mother.

Following the breakdown of their relationship, Ms C took G back to Ireland to live and Ms L has not seen the child since.

Sitting at the Royal Courts of Justice, Mr Justice Jackson heard the application, noting the difficulty in dealing with “the painful legal confusion” in cases involving unregulated artificial conception.

He also noted that legally, Ms C was G’s parent, whereas Ms L was not.

“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. The birth certificate therefore shows Ms C as the sole parent.”

The judge added:

“Following this, the couple visited a solicitor to seek legal advice about Ms L’s position. They were advised that she had no legal rights and that a joint residence order would be necessary to give her parental responsibility.” However, as the Judge found, “this court will only have jurisdiction to entertain the application if G was habitually resident here on 25 February: Family Law Act 1986 ss. 2 and 3 and Arts. 8 and 16 BIIR.”

He concluded that the court had no jurisdiction when it came to matters of parental responsibility concerning G, as she was not habitually resident in England when the proceedings were started.

Habitual residence means the place a person lives and is used to determine where certain cases can be heard.

The reasons given were:

  • “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.”

But Ms L also sought to argue she was entitled to a declaration that she is G’s ‘psychological parent’ and that at the date of removal she and G shared family life within the meaning of Art. 8 of the European Convention of Human Rights.

This is a novel proposition to which the Judge paid short shrift.

“While declarations can encompass the existence of facts, I do not regard the existence or non-existence of psychological parenthood as an apt subject for a declaration. Moreover, it adds nothing in reality to the application for a declaration concerning the existence of family life. I propose to say nothing on the matter either way. Ms L’s application for a declaration of psychological parenthood is accordingly refused.”

However, the Judge did make one declaration that he found he had power to make and which might assist any future proceedings for the benefit of the child, whether in Ireland or elsewhere.

“Drawing all these matters together, I shall refuse Ms L’s applications except to the extent that I declare that at the date of G’s removal from England on 3 January 2014 family life within the meaning of Article 8 of the European Convention on Human Rights existed between G and Ms L.”

Author: Stowe Family Law

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