High Court of Justice (Northern Ireland) Family Division

High Court of Justice (Northern Ireland) Family Division

United Kingdom - Northern Ireland

29 November 2023

A Grandmother v A Mother (Re GE)

[2023] NIFam 21

First instance

• Article 5(1)
• Article 8

Article 11

Family Law Act 1986, Children (Northern Ireland) Order 1995

Not provided

Private law proceedings in Northern Ireland concerning a four-year-old child, GE, who had been living with her grandmother in the Republic of Ireland. The grandmother applied in Northern Ireland for a residence order with the mother's support. The court held that jurisdiction under the 1996 Hague Convention had to be considered before resort could be had to the residual jurisdictional rules in the Family Law Act 1986. Following the approach adopted by the Court of Appeal in London Borough of Hackney v P, McFarland J held that primary jurisdiction should be determined by reference to the child's habitual residence at the date proceedings were commenced, while the court must also be satisfied that jurisdiction continues to exist at the final hearing. At the date of the application, GE had spent only about five weeks living solely with her grandmother in the Republic of Ireland and had not acquired sufficient integration there to displace her habitual residence in Northern Ireland. The court also found that, despite nine months in the grandmother's care by the final hearing, GE had still not acquired habitual residence in the Republic of Ireland. The grandmother did not have parental responsibility, significant aspects of the child's health care and family life remained connected with Northern Ireland, and the placement was being managed by the Northern Irish Trust. The court therefore retained jurisdiction, declined to transfer jurisdiction under Article 8, and granted the grandmother a residence order.

The court held that the child was habitually resident in Northern Ireland when the proceedings were commenced and remained habitually resident there at the date of the final hearing. The Northern Irish court therefore had and retained jurisdiction under the 1996 Hague Convention. The court declined to seek a transfer of jurisdiction under Article 8 to the Republic of Ireland and granted the grandmother a residence order