UNITED KINGDOM - NORTHERN IRELAND
Northern Ireland Court of Appeal
UNITED KINGDOM - NORTHERN IRELAND
19 February 2014
Overturned on appeal
Rights of Custody - Art. 3
Appeal dismissed, application dismissed
Rights of Custody:
The Court directed enquiries to be made after the hearing as to the status of the various orders made in relation to the child in Lithuania. As regards the power of attorney dated 20 April 2006, the Court noted that the mother had issued a withdrawal of consent dated 2 March 2012 consequently it was no longer valid and not in force on the date of the removal. As to the order dated 10 January 2007 giving temporary care of the child to the grandmother, the Court noted that it was discontinued on 28 February 2012, consequently there was no guardianship order in force on the date of the removal.
Agreement Having Legal Effect:
It was submitted that the mother's actions in granting authorisation to the grandmother to visit medical institutions and hospitals with the child and her signing of a Power of Attorney amounted to an informal agreement which, although without force of law, the courts in Lithuania would not disregard. This was rejected by the Court, which held that the argument sought an impermissible reading down of the words "legal effect". It ruled that the appellants did not have rights under Lithuanian law at the time of the removal of the child.
Inchoate Rights of Custody:
The Court considered the judgments delivered by the three members of the Court of Appeal of England and Wales in Re B (A Minor) (Abduction)  2 FLR 249 [INCADAT Reference: HC/E/UKe 4]. It noted that Staughton LJ, the second member of the majority, concluded that he could infer that there was an agreement between the parents which conferred rights upon the father. Consequently, the Court concluded that Waite LJ alone was prepared, if necessary, to take a very broad view of "rights of custody" as including de facto rights in certain circumstances uninhibited by the need to establish any court order, rule of law or agreement. The Court accepted that whilst the judgment of Waite LJ could therefore be judged a minority view, it had subsequently been followed and applied. Nevertheless there had been substantial criticism that it was inconsistent with the decisions of the House of Lords in Re J (A Minor) (Abduction: Custody Rights)  2 AC 562 [INCADAT Reference: HC/E/UKe 2] and Re D (Abduction: Rights of Custody)  UKHL 51,  1 AC 619 [INCADAT Reference: HC/E/UKe 880]. In the light of these decisions the Court concluded that de facto custody with a right to go to court to seek an order was insufficient on its own to constitute rights of custody for the purposes of the Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003). The Court accepted that the House of Lords authorities did not exclude the possibility that rights of custody might be established where the de facto custody was accompanied by an agreement that was capable of legal enforcement.
Author of the summary: Peter McEleavy
See also the decision of the High Court of Justice in Northern Ireland - Family Division VK and AK v CC  NIFam 6 [INCADAT Reference: HC/E/UKn 1250] and the decision of the Supreme Court of the United Kingdom In re K (A Child) (Reunite International Child Abduction Centre intervening)  UKSC 29,  2 W.L.R. 1304 [INCADAT Reference: HC/E/UKn 1259].
The reliance on 'inchoate custody rights', to afford a Convention remedy to applicants who have actively cared for removed or retained children, but who do not possess legal custody rights, was first identified in the English decision:
Re B. (A Minor) (Abduction)  2 FLR 249 [INCADAT cite: HC/E/UKe 4],
and has subsequently been followed in that jurisdiction in:
Re O. (Child Abduction: Custody Rights)  2 FLR 702,  Fam Law 781 [INCADAT cite: HC/E/UKe 5];
Re G. (Abduction: Rights of Custody)  2 FLR 703 [INCADAT cite: HC/E/UKe 505].
The concept has been the subject of judicial consideration in:
Re W. (Minors) (Abduction: Father's Rights)  Fam 1 [INCADAT cite: HC/E/Uke 503];
Re B. (A Minor) (Abduction: Father's Rights)  Fam 1 [INCADAT cite: HC/E/UKe 504];
Re G. (Child Abduction) (Unmarried Father: Rights of Custody)  EWHC 2219 (Fam);  ALL ER (D) 79 (Nov),  1 FLR 252 [INCADAT cite: HC/E/UKe 506].
In one English first instance decision: Re J. (Abduction: Declaration of Wrongful Removal)  2 FLR 653 [INCADAT cite: HC/E/UKe 265], it was questioned whether the concept was in accordance with the decision of the House of Lords in Re J. (A Minor) (Abduction: Custody Rights)  2 AC 562,  2 All ER 961,  2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT cite: HC/E/UKe 2] where it was held that de facto custody was not sufficient to amount to rights of custody for the purposes of the Convention.
The concept of 'inchoate custody rights', has attracted support and opposition in other Contracting States.
The concept has attracted support in a New Zealand first instance case: Anderson v. Paterson  NZFLR 641 [INCADAT cite: HC/E/NZ 471].
However, the concept was specifically rejected by the majority of the Irish Supreme Court in the decision of: H.I. v. M.G.  2 ILRM 1;  1 IR 110 [INCADAT cite: HC/E/IE 284].
Keane J. stated that it would go too far to accept that there was 'an undefined hinterland of inchoate rights of custody not attributed in any sense by the law of the requesting state to the party asserting them or to the court itself, but regard by the court of the requested state as being capable of protection under the terms of the Convention.'
The Court of Justice of the European Union has subsequently upheld the position adopted by the Irish Courts:
Case C-400/10 PPU J. McB. v. L.E., [INCADAT cite: HC/E/ 1104].
In its ruling the European Court noted that the attribution of rights of custody, which were not accorded to an unmarried father under national law, would be incompatible with the requirements of legal certainty and with the need to protect the rights and freedoms of others, notably those of the mother.
This formulation leaves open the status of ‘incohate rights’ in a EU Member State where the concept had become part of national law. The United Kingdom (England & Wales) would fall into this category, but it must be recalled that pursuant to the terms of Protocol (No. 30) on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom (OJ C 115/313, 9 May 2008), the CJEU could not in any event make a finding of inconsistency with regard to UK law vis-a-vis Charter rights.
For academic criticism of the concept of inchoate rights see: Beaumont P.R. and McEleavy P.E. 'The Hague Convention on International Child Abduction' Oxford, OUP, 1999, at p. 60.