The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention required an order to be made for the return of a child only where the parent seeking the return could show some wrongful element in the removal. A right of veto given to the father to control removal from a jurisdiction would amount to ‘rights of custody’ within the meaning of article 5(a), but a potential right of veto does not. However at the time when the order had been made, the Romanian court had expressly ruled that the mother could leave and take her son with her: ‘While ultimately, therefore, the decision is one for the courts of the requested state, those courts must attach considerable weight to the authoritative decision of the requesting state on both issues.’
Under the Human Rights Act 1998, it is now unlawful for the court as a public authority to act incompatibly with the human rights and fundamental freedoms guaranteed by the European Convention on Human Rights. This applies in a Hague Convention case just as in any other. Article 20 has thus been given domestic effect by a different route. Hence a final issue is whether a return would be incompatible with the Convention rights.
Baroness Hale said that: ‘The question is, do the rights possessed under the law of the home country, by the parent who does not have day to day care of the child, amount to rights of custody or do they not?’ However, she drew a distinction between that position and a simple ‘potential right of veto’: ‘In other words, if all that the other parent has is the right to go to court and ask for an order about some aspect of the child’s upbringing, including relocation abroad, this should not amount to ‘rights of custody’. To hold otherwise would be to remove the distinction between ‘rights of custody’ and ‘rights of access’ altogether.’
Judges:
Lord Nicholls of Birkenhead, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
Citations:
Times 17-Nov-2006, [2006] UKHL 51, [2007] 1 AC 619, [2007] 1 FLR 961, [2006] 3 WLR 989, [2007] 1 All ER 78
Links:
Statutes:
Child Abduction and Custody Act 1985, Hague Convention on the Civil Aspects of International Child Abduction 1980 5(a)
Jurisdiction:
England and Wales
Citing:
Cited – C v C (Minor:Abduction: Rights of Custody Abroad) CA 1989
The English mother married the Australian father in Australia and bore their child their. After divorce both parents had custody with no right to remove the child. The mother brought the child to England without the father’s consent.
Held: The . .
Cited – In Re W (Minors) (Child Abduction: Unmarried Father); In Re B (A Minor) (Child Abduction: Unmarried Father) FD 9-Apr-1998
An unmarried father has no rights as regards a child until an application is made, but a mother taking child abroad whilst a court application was continuing could be restrained as an act of child abduction through the court’s own parental rights . .
Appeal from – In re D (A Child) CA 25-May-2006
The mother had unlawfully brought her son here from Romania, and now appealed an order for his return.
Held: The appeal was dismissed. . .
At first instance – In re D (a Child) FD 2006
The father sought the return of his son to Romania. The mother had brought him here without the father’s consent. The father said that a Romanian court had ordered his return, but the expert evidence as to the effect of the order was conflicting. . .
Cited – J, Petitioner IHCS 2005
‘rights of custody’ for Convention purposes included the right to grant or withhold consent to the child’s removal from the United Kingdom under section 2(3) of the 1995 Act. . .
Cited – In re P (A Child) (Abduction: Consent); (Abduction: Custody Rights) CA 28-Jul-2004
The father sought the return to the USA of his daughter, brought here by her mother. The father had custody, but the mother said he had consented to the child being brought here.
Held: The issue of consent did not affect the question of the . .
Cited – Hunter v Murrow (Abduction: Rights of Custody) CA 28-Jul-2005
Rights of access can in themselves amount to ‘rights of custody’ for the Convention. Dyson LJ divided the question of whether the father had rights of custody into two. The first, which he called ‘the domestic law question’, was what rights the . .
Cited – Re H, H v H (Child Abduction: Acquiescence) HL 10-Apr-1997
The mother and father were orthodox Jews. The mother brought the children to England from Israel against the father’s wishes. She said that he had acquiesced in their staying here by asking for them to be returned to Israel temporarily. The father . .
Cited – Regina v Secretary of State for the Home Department, ex parte Adan, Same, ex parte Aitsegeur HL 20-Dec-2000
The Convention gave protection to an asylum seeker fearing persecution by non-state agents in his country of origin where that government was unable or unwilling to provide protection. France and Germany did not recognise this right, and therefore . .
Cited – V-B (Minors) (Abduction: Custody Rights) CA 17-Mar-1999
Rights of custody are to be distinguished from mere rights of access. . .
Cited by:
Cited – Re M and another (Children) (Abduction; Rights of Custody) HL 5-Dec-2007
Three children had been brought from Zimbabwe by their mother against the wishes of the father and in breach of his rights there. The mother appealed an order for their return.
Held: The mother’s appeal was allowed. The House had to consider . .
Cited – AF v M B-F FD 22-Feb-2008
The father sought the return of the two children to Poland after they had been brought to England by the mother. She said that she had come to seek work as a dentist, and had been unable to support the family in Poland. She said that her Polish . .
Cited – In Re I (A Child) SC 1-Dec-2009
The child had been born in Britain to British citizen parents from Pakistan and India. There had been care proceedings, but later and with the court’s consent the father took him to Pakistan undertaking to return him, but then failed to do so. . .
Cited – Re E (Children) (Abduction: Custody Appeal) SC 10-Jun-2011
Two children were born in Norway to a British mother (M) and Norwegian father (F). Having lived in Norway, M brought them to England to stay, but without F’s knowledge or consent. M replied to his application for their return that the children would . .
Cited – Re S (A Child) SC 14-Mar-2012
The mother appealed against an order confirmed by the Court of Appeal for the return of her child to Australia. The mother and father had cohabited in Sydney, before M returned with S without F’s consent or the permission of an Australian court. The . .
Cited – In re K (A Child) SC 15-Mar-2014
Rights of Custody under Convention
The Court was asked as to what were ‘rights of custody’ within the Convention. M had at first left her child with the maternal grandmother in an informal but long term arrangement in Latvia when M moved to Northern Ireland. Later M removed the child . .
Lists of cited by and citing cases may be incomplete.
Children, International, Human Rights
Updated: 08 July 2022; Ref: scu.246083