Declarations and Human Rights in Abduction Cases

L v C

[2014] EWFC 1; [2014] WLR (D) 188

Fam Ct: Peter Jackson J: 2 May 2014

There was nothing explicit in the Human Rights Act 1998 to state that declarations could not be granted in the absence of proceedings brought under section 7 and there was no good reason to infer such a restriction. The terms of the 1998 Act did not exclude the court’s power to make free-standing declarations as to Convention rights in appropriate cases and such an application could be approached in the same manner as any other application for a declaration.

(1) granting an application by Ms L for a declaration that she shared family life within the meaning of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms with G, the child, at the point at which G departed from England in January 2014,
(2) refusing to make a declaration that Ms L was acting as G’s “psychological parent” at that time, and
(3) dismissing Ms L’s applications for a residence order and a contact order under section 8 of the Children Act 1989 on the grounds that at the time Ms L’s proceedings were issued G was not habitually resident in England and Wales. The respondent, Ms C, G’s biological mother, opposed the applications on the grounds that the English court lacked jurisdiction.

Although the court did not have jurisdiction to make substantive orders over the child the court did have jurisdiction to make Declarations which might assist in the progress of applications made elsewhere.