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 to Northern Ireland against the grandmother’s wishes. The court was now asked what was meant by ‘rights of custody’ within the conventions: ‘Is it to be interpreted strictly and literally as a reference to rights which are already legally recognised and enforceable? Or is it to be interpreted purposively as a reference to a wider category of what have been termed ‘inchoate rights’, the existence of which would have been legally recognised had the question arisen before the removal or retention in question? ‘
Held: The phrase ‘rights of custody,’ in articles 3 and 5(a) of the 1980 Convention and in article 2(9)(11) of the 2003 Council Regulation did not refer only rights which had already been legally recognised and were enforceable as such. The phrase was to be interpreted purposively, and as such would include reference to wider ‘inchoate rights’, the existence of which would have been legally recognised if the matter had arisen before the particular act of removal or retention in question.

Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Wilson, Lord Hughes
[2014] UKSC 29, [2014] 2 WLR 1304, [2014] WLR(D) 218, [2014] 2 FLR 629, UKSC 2014/0093, [2014] Fam Law 943, [2014] 1 AC 1401, [2014] NI 315, [2014] 2 FCR 231, [2014] 3 All ER 149
Bailii, Bailii Summary, WLRD, SC, SC Summary
Hague Convention on the Civil Aspects of International Child Abduction, Brussels II Revised Regulation
Northern Ireland
CitedIn Re B (A Minor)(Child Abduction: Consent) CA 9-May-1994
A six year old boy, had lived in Western Australia all his life. Shortly prior to his removal from Australia, the mother had left Australia to live in Wales. The maternal grandmother asked the father for permission to take the child to Wales to . .
CitedIn re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
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 . .
See alsoKK (A Child), Re Judicial Review FDNI 10-Jun-2013
Maternal Grandparents sought a declartion requiring the return to Latvia of their grandson, who had been brought forcibly to NI by his mother, he having lived with them in Latvia for several years. . .
Appeal fromVK and AK v CC CANI 19-Feb-2014
The child had been removed to NI by his mother. She had left him as a baby with her parents in Latvia, and they had cared for him under an informal arrangement for several years. M had taken the boy from the street in Latvia. The grandparents sought . .

Lists of cited by and citing cases may be incomplete.

Children, International

Leading Case

Updated: 01 November 2021; Ref: scu.526194