G v B (Cohabitation; Preliminary Issue; Jurisdiction; Maintenance Regulation). (Approved)

Factual and Procedural Background

The Applicant commenced proceedings by Special Summons on 11 March 2024 seeking various reliefs pursuant to multiple family law statutes, including the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, the Guardianship of Infants Act 1964, the Status of Children Act 1987, the Family Law Act 1995, and the Family Law (Divorce) Act 1996, reflecting the complexity of reliefs sought in a non-marital relationship context.

The parties have never been married but were in a relationship with one child, who is an infant with significant health issues. The ordinary residence of the parties is contested: the Applicant references addresses in London, England and Ireland, while the Respondent references an address in Dublin. Both parties have sworn Affidavits of Means. The Applicant claims financial dependency and seeks maintenance for herself and the child. Both parties reside in rented premises with significant rental payments. The Applicant is on unpaid maternity leave.

The Applicant seeks reliefs relating to child arrangements under the Guardianship of Infants Act 1964, financial reliefs including maintenance for herself under the 2010 Act, maintenance for the child under section 11 of the 1964 Act and/or section 5A of the 1976 Act, and declaratory orders concerning property interests under the 1996 and 1995 Acts. The Respondent entered an unconditional Appearance on 10 May 2024 and has initiated parallel proceedings in England concerning parental responsibility and financial provision.

On 27 June 2024, the Applicant sought interim maintenance for herself and the child, noting the absence of provisions for interim maintenance under the 2010 Act but referencing provision under the 1976 Act. The Respondent raised preliminary objections, including jurisdictional challenges regarding child maintenance, asserting that such matters should be determined in England where the child is habitually resident. The Respondent also offered undertakings to stay English proceedings pending jurisdictional determination and proposed voluntary maintenance payments, though the terms were uncertain.

The Respondent filed a motion on 11 September 2024 seeking multiple declaratory and procedural orders, challenging the Irish court's jurisdiction over child arrangements, maintenance, and claims under the 2010 Act, and requesting certain issues be tried as preliminary questions or remitted to the Circuit Family Court. The motion also sought costs.

At a hearing on 1 November 2024, the parties resolved three categories of issues: child arrangements orders, preliminary issues under the 2010 Act, and procedural pleading deficiencies. It was agreed that the child is habitually resident in England and that jurisdiction over parental responsibility matters lies with the English courts pursuant to the Hague Convention and Irish implementing legislation. The court determined that the issue of ordinary residence under section 196(3) of the 2010 Act was suitable for preliminary determination. Amendments to pleadings were permitted to ensure all issues were addressed.

This judgment concerns the remaining issue: the jurisdictional basis for maintenance relief for the dependent child, including interim maintenance, and the applicability of the Maintenance Regulation versus domestic jurisdictional rules, as well as the relevance of the doctrine of forum non conveniens.

Legal Issues Presented

1. Whether the jurisdictional rules provided for in the Maintenance Regulation apply to maintenance claims in this case involving an EU Member State and a third country (England).
2. If the Maintenance Regulation applies, whether the doctrine of forum non conveniens may be invoked to oust the jurisdiction conferred by the Regulation.
3. If the Maintenance Regulation does not apply and domestic non-EU jurisdictional rules govern, whether Ireland should decline jurisdiction in favor of England as the more appropriate forum.

Arguments of the Parties

Respondent's Arguments

• The Maintenance Regulation no longer applies to jurisdictional claims involving a Member State and a third country (post-Brexit United Kingdom).
• Cases cited by the Applicant, including Osuwu v. Jackson and R v P, are distinguishable as they involved parties connected to Member States.
• The principle of forum non conveniens should be applied, favoring England as the appropriate forum due to the child's habitual residence, the location of expenses, and the existence of English proceedings addressing parental responsibility and maintenance.
• England is the preferred forum to avoid fragmentation of proceedings and because the Respondent lacks financial resources to maintain High Court proceedings in Ireland.

Applicant's Arguments

• The Maintenance Regulation continues to apply mandatorily, conferring jurisdiction on the Irish courts.
• Irish case law, including the decision of Sheehan J. in O'K v. A, supports the application of the Maintenance Regulation.
• The UK Supreme Court decision in Villiers v Villiers supports the exclusion of forum non conveniens in the context of European jurisdictional provisions.
• Even if forum non conveniens applied, it should not oust Irish jurisdiction given the availability of procedural remedies such as disclosure and enforcement in Ireland, which are important for a maintenance creditor.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Owusu v. Jackson (Case C-281/02) [2005] ECR I-1383	Exclusion of forum non conveniens under Brussels Convention jurisdiction rules; mandatory jurisdiction based on defendant's domicile.	The court relied on Owusu to hold that jurisdiction under the Maintenance Regulation is mandatory and excludes forum non conveniens, ensuring legal certainty and protection for maintenance creditors.
R v P (Case C-468/18) [2020] 1 WLR 8	Clarification that jurisdiction over maintenance obligations is independent of jurisdiction over parental responsibility; mandatory nature of Maintenance Regulation.	The court applied R v P to confirm that maintenance jurisdiction under Article 3(a) of the Maintenance Regulation stands even if parental responsibility jurisdiction lies elsewhere, supporting mandatory jurisdiction.
A v B (Case C-184/14) [2015]	Interpretation of ancillary jurisdiction for maintenance in relation to parental responsibility; limits of forum non conveniens.	The court distinguished A v B, noting it concerns ancillary jurisdiction and not the primary jurisdiction under Article 3(a), and that it does not support the Respondent's fragmentation argument.
PM v VH [2018] IECA 4	Application of Brussels II bis Regulation to non-member state judgments and habitual residence.	The court cited PM v VH to support jurisdiction over parental responsibility matters despite the child's habitual residence outside the EU, reinforcing jurisdictional principles.
O'K v A [2008] 4 IR 801	Jurisdiction and forum non conveniens in the context of Brussels II bis and third country respondents.	Referenced for the principle that forum non conveniens does not survive Brussels II bis jurisdiction rules for parental responsibility; possibly applicable to maintenance.
Villiers v Villiers [2021] AC 838	Exclusion of forum non conveniens in the context of Maintenance Regulation equivalent jurisdictional rules within the UK.	Supported the mandatory nature of jurisdiction under the Maintenance Regulation, reinforcing that forum non conveniens does not oust jurisdiction.
Goshawk Dedicated Limited and Others v. Life Receivables Ireland Limited [2009] IESC 7	Lis alibi pendens and jurisdictional priority between Member State and non-member State proceedings.	Distinguished as concerning lis alibi pendens with prior third country proceedings, unlike the present case where Irish proceedings were first.
Mevlut Abama and Others v. Cama Construction (Ireland) Limited and Another [2015] IECA 179	Preclusion of forum non conveniens where European jurisdictional rules apply.	Supported the exclusion of forum non conveniens in cases governed by European jurisdiction regulations.
Bank of Ireland v. O'Donnell and Others [2016] IEHC 675	Similar to Mevlut Abama; preclusion of forum non conveniens under European jurisdictional rules.	Reinforced the principle that European jurisdictional rules exclude the application of forum non conveniens.
Inter Metal Group Limited v. Worsdale Trading Limited [1998] 2 IR 1	Application of forum non conveniens principles under Spiliada test.	Referenced for the principles governing forum non conveniens which the court found inapplicable given the mandatory jurisdiction under the Maintenance Regulation.
McCarthy v. Pillay [2003] 1 IR 592	Application of forum non conveniens principles.	Also referenced in relation to the test for forum non conveniens.

Court's Reasoning and Analysis

The court began by assessing the jurisdictional basis for maintenance claims under the Maintenance Regulation (Council Regulation (EC) No 4/2009), which is directly applicable in Irish law. Article 3 provides four alternative bases for jurisdiction, including the habitual residence of the defendant or creditor. The Respondent is habitually resident in Ireland, engaging Article 3(a).

The Respondent argued that post-Brexit, the Maintenance Regulation does not apply to claims involving the UK, a third country, thus domestic jurisdictional rules and the doctrine of forum non conveniens should apply. The court rejected this, finding no territorial limitation in the Regulation's wording that limits jurisdiction to cases where both parties reside in Member States.

The court relied heavily on the decision in Owusu v. Jackson, where the CJEU held that the doctrine of forum non conveniens does not apply under the Brussels Convention, a principle extended analogously to the Maintenance Regulation. It emphasized the need for legal certainty and protection of maintenance creditors by mandating jurisdiction where the defendant is habitually resident.

Further, the court considered the R v P decision, which confirmed that jurisdiction over maintenance obligations under the Regulation is independent and mandatory, even when parental responsibility jurisdiction lies with another state. The court distinguished the A v B case, noting it addressed ancillary jurisdiction and not the primary jurisdiction under Article 3(a).

The court also considered domestic case law, including O'K v A and Villiers v Villiers, which support the exclusion of forum non conveniens in the context of European jurisdictional rules. It rejected the Respondent's submission that domestic rules allowing forum non conveniens apply, noting the mandatory nature of the Maintenance Regulation jurisdictional provisions.

Regarding the Respondent's argument that England is the more appropriate forum due to the child's habitual residence and related proceedings, the court acknowledged the significance of these factors but emphasized that maintenance proceedings involve financial assessments of both parties’ means, some of which are situated in Ireland. The Respondent’s financial circumstances and assets are primarily in Ireland, making Irish jurisdiction appropriate.

The court also noted the Applicant’s concerns about financial disclosure and enforcement in England, although it placed limited weight on these in the absence of evidence. The court concluded that the maintenance claim is not more suitably tried in England under the Spiliada principles.

Thus, the court determined that the Maintenance Regulation applies, that forum non conveniens cannot be invoked to oust its jurisdiction, and that even if it could, Ireland is the appropriate forum for the maintenance claim.

Holding and Implications

The court held that:

• The jurisdictional rules provided for in the Maintenance Regulation apply to this case.
• The doctrine of forum non conveniens cannot be invoked to oust the jurisdiction conferred by the Maintenance Regulation.
• Even if forum non conveniens were applicable, Ireland is the appropriate forum to hear the maintenance claim.

The decision confirms the mandatory nature of the Maintenance Regulation’s jurisdictional provisions in Irish courts, even in cases involving a third country (post-Brexit UK). It reinforces the principle that maintenance claims may not be declined on grounds of convenience once jurisdiction is established under the Regulation. The ruling ensures that maintenance creditors have access to jurisdiction in the Member State of the defendant’s habitual residence, promoting legal certainty and protection of maintenance rights.

The direct effect is that the Applicant’s maintenance claim will proceed in Ireland, with the court set to hear the preliminary issue and interim maintenance application as scheduled. No new precedent beyond the application of established European and domestic principles was set.