Wednesday Law Report: Removal of child was in breach of custody rights

17 November 1999

Re H (abduction: custody rights)

Court of Appeal (Lord Justice Morritt, Lord Justice Thorpe and Lord Justice Chadwick) 11 November 1999

AN APPLICATION in a foreign court by the father of a child, which required the court to adjudicate on the custody of the child although the father was not himself seeking custody, and on his application for guardianship, was sufficient to vest rights of custody in that court within the terms of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction 1980.

The Court of Appeal allowed the appeal of the child's father against the dismissal of a summons issued under the Child Abduction and Custody Act 1985, claiming that the mother had wrongfully removed their child from the Irish Republic within the meaning of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction 1980.

The parents of the child, who was born on 3 April 1992, were Irish and unmarried. They separated in 1995, after which the father had irregular contact by agreement. On 14 March 1996 he commenced proceedings for access in the District Court of Carrigaline, under section 11 of the Guardianship of Infants Act 1964.

The court gave custody of the child to the mother, and made an interim order granting access to the father. Difficulties between the parents led to a further application by the father seeking the court's directions "regarding the custody of the infant and the right of access thereto of the applicant . . . to wit guardianship and access".

Before that application was heard, the mother took the child to England. The father eventually traced the mother but was unable to agree arrangements for contact. He thereafter issued a summons in the Family Division under the Child Abduction and Custody Act 1985, which, by section 1, gave the force of law in the United Kingdom to the Hague Convention on the Civil Aspects of International Child Abduction 1980, contending that the mother's removal of the child was wrongful within within the meaning of Article 3 of the Convention.

Article 3 provided that the removal or retention of a child was to be considered wrongful if it was

in breach of rights of custody attributed to a person, an institution or other body . . . under the law of the state in which the child was habitually resident immediately before the removal or retention . . .

The father argued that the removal of the child was in breach of his rights of custody, or, alternatively in breach of the rights of custody vested in the Irish court. The judge dismissed the father's summons on the ground that the proceedings in the Irish court, being guardianship proceedings, were not such as to give rights of custody. The father appealed, the only issue on the appeal being whether the removal of the child was in breach of the custody rights of the Irish court.

David Tyzack QC and Catriona Murfitt (Collyer-Bristow) for the father; James Turner QC and Adrian Langdale (Kirwans) for the mother.

Lord Justice Thorpe said that, although the father had not sought custody of the child, in the Irish proceedings it was implicit in his consent to the order giving custody to the mother that she would exercise that responsibility in their shared locality. His application for guardianship would, if granted, have constituted him joint custodian, with the consequence that any dispute as to where the child should reside would be for the decision of the court under section 11(2)(a) of the 1964 Act.

The Irish court's adjudication in relation to the custody of the child, together with its imminent determination of the father's application for guardianship, vested in the court rights of custody within the terms of Article 3.

Parental conduct of the character shown by the mother should not succeed in out- manoeuvring the culmination of the forensic process in what was indubitably the court of primary responsibility. If the mother believed that England was better for the child, she should have sought to submit that conviction to the determination of the Irish court. Indeed it was her responsibility to seek that determination before presenting the father and the court with what she no doubt hoped would be a fait accompli.