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Rights of Custody - Art. 3

The Court found that at all material times, from shortly after the birth to the date of abduction in 2012, the grandparents were, at the very least, the de facto carers of the child. The position was formalised on 10 January 2007 when the grandmother was given "temporary care (custody)" of the child by the administration director of Klaipeda City Municipality. On 28 February 2012, the temporary care order was discontinued.

The Court noted that the grandmother had been granted an authorisation by the mother on 13 April 2005 to visit all medical institutions and hospitals with the child. And, on 20 April 2006, the mother had signed a power of attorney giving the grandmother authority to receive the passport of the child and to deal with legal and governmental institutions in respect of the child on her behalf. The power of attorney was stated to be valid until 20 April 2016.

The Court considered first what rights the grandparents had under Lithuanian law. It found, on the balance of probabilities, that at the date of the abduction they enjoyed only "moral" or de facto rights to care for the child. They did not have "rights of custody" as a matter of Lithuanian law.

The Court then considered the line of English authority relating to "inchoate rights of custody". In Re B (A Minor) (Abduction) [1994] 2 FLR 249 [INCADAT Reference: HC/E/UKe 4] Waite L.J. held:

"If, before the child's abduction, the aggrieved parent was exercising functions in the requesting State of a parental or custodial nature without the benefit of any court order or official custodial status, it must in every case be a question for the courts of the requested State to determine whether any of those functions fall to be regarded as "rights of custody" within the terms of the Convention."

The Court accepted that the grandparents had been the child's exclusive carers over a lengthy period, and, if the line of authority on inchoate rights of custody was followed, they ought to be viewed as having rights of custody for Convention purposes.

The Court found however that the line of authority should not be followed. First, the Court questioned whether it was appropriate to consider the grandparents' situation in the context of inchoate rights of custody, given that it may have been that the grandmother had rights of custody by virtue of the 2007 decision of the administration director of Klaipeda City Municipality but that those rights had been discontinued shortly before the child's removal.

The Court also questioned whether the inchoate rights of custody line of cases could be viewed as being in breach of the authority of the House of Lords as expressed in its decision in Re J (A Minor) (Abduction) [1990] 2 AC 562 [INCADAT Reference HC/E/UKe 2]. The Court noted that the more recent decision of the House of Lords in Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 [INCADAT Reference HC/E/UKe 880] made no reference to the inchoate right of custody line of authorities in circumstances where the issue of how rights of custody for the purpose of the Convention were to be identified, was directly under discussion.

Finally, the Court referred to Case C-400/10 PPU J. McB. v. L.E. [2011] Fam 364 [INCADAT Reference: HC/E/ 1104] in which the Court of Justice of the European Union (CJEU) held that for the purposes of the Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003), the wrongfulness of a child's removal was entirely dependent on the existence of rights of custody, conferred by the relevant national law.

In deciding how to treat the grandparents' application, the Court concluded that it was better to follow the line of authority beginning with Re J and ending with the CJEU's view in McB v E. The Court stated that it was unattracted by the proposition that it should read the international provisions in the present case as including "inchoate rights of custody".

It held that at the relevant time, the removal of the child was not in breach of any legally recognised right of the grandparents in Lithuania law, and it followed that there had not been a wrongful removal of the child for the purpose of the Hague Convention when read with the provisions of the Brussels IIa Regulation.

Author of the summary: Peter McEleavy

See also the decision of the Northern Ireland Court of Appeal VK, AK v CC [2014] NICA 15 [INCADAT Reference: HC/E/UKn 1257] and decision of the Supreme Court of the United Kingdom In the Matter of K (A child) (Northern Ireland) [2014] UKSC 29 [INCADAT Reference: HC/E/UKn 1259].