CASE

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Case Name

H. (M.S.) v. H. (L.) (Child Abduction: Custody) [2000] 3 IR 390; [2001] 1 ILRM 448

INCADAT reference

HC/E/IE 319

Court

Country

IRELAND

Name

Supreme Court of Ireland

Level

Appellate Court

Judge(s)
McGuiness J.

States involved

Requesting State

UNITED KINGDOM

Requested State

IRELAND

Decision

Date

27 July 2000

Status

Final

Grounds

Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Undertakings

Order

Appeal dismissed, return ordered

HC article(s) Considered

3 5 13(1)(a) 13(1)(b)

HC article(s) Relied Upon

3 5 13(1)(b)

Other provisions

-

Authorities | Cases referred to
W.P.P v. S.R. W, 14 April 2000, Supreme Court of Ireland; Thomson v. Thomson (1994) 3 SCR 551; C.K. v. C.K. [1994] 1 IR 250; K. v. K., 6 May 1998, High Court of Ireland; Elisa Pérez-Vera, Explanatory Report: Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session (Child Abduction) 426 (1980); Re A. (A Minor) (Abduction) [1988] 1 FLR 365; L.P. v. M.M.P, 24 October 1998, High Court of Ireland; Re O. (Child Abduction: Undertakings) [1994] 2 FLR 349.

INCADAT comment

Article 12 Return Mechanism

Rights of Custody
What is a Right of Custody for Convention Purposes?

Implementation & Application Issues

Measures to Facilitate the Return of Children
Undertakings

SUMMARY

Summary available in EN | FR | ES

Facts

The children, a girl and a boy, were nearly 4 and 2 1/2 respectively at the date of the alleged wrongful removal. They had lived in England all of their lives. The parents were married. The children had resided primarily in the sole care of the mother. This was because the father was in prison from September 1994 to May 1995 and from October 1995 to June 1996. The father was re-imprisoned in September 1997 for four and a half years.

However, the children were brought to see him by their mother and subsequently by the paternal grandparents on a regular basis. In August 1999 the mother entered into a relationship with another man and they had a child together. On 13 October 1999 the father, through his solicitor, made an ex parte application to Oldham County Court for a Prohibited Steps Order pursuant to Section 8(1) of the Children Act 1989.

The District Judge made an order that the children should not be removed from England and Wales pending further order of the court. On 19 October the mother attended a further hearing and did not seek to overturn the Prohibited Steps Order. On 25 October she filed an application seeking the leave of the court to remove the children to Ireland. On 25 November, before her application was adjudicated upon, the mother went to Ireland with the children.

The father contacted the English Central Authority and on 27 January the Convention proceedings were instituted before the High Court of Ireland. On 22 May 2000 the High Court ordered the return of the children to England. The mother appealed to the Supreme Court of Ireland.

Ruling

Appeal dismissed and return ordered; the removal was wrongful as it was in breach of the father's custody rights. The standard of harm required under Article 13(1)(b) had not been made out.

Grounds

Rights of Custody - Art. 3

The court held that the father’s imprisonment did not divest him of his rights of custody. His rights were not negatived or nullified by the fact he was not playing a large part in the physical day to day care of the children. The court cited various other examples where a parent might have a low level input into the day to day physical care of a child: where a parent was disabled, incapacitated by sickness or accident, or in a job which necessitated long absences from home. The court further found that it was clear the father was exercising his custody rights by seeing the children frequently and by his application to the Oldham County Court to obtain a Prohibited Steps Order. The court ruled that failure to exercise rights of custody must be clearly and unequivocally established and in its view the mother had not discharged the burden required under Article 13(1)(a).

Grave Risk - Art. 13(1)(b)

The court held that the mother had not sufficiently established that there was a grave risk the children would be placed in an intolerable situation if they were returned to England. Furthermore the Supreme Court was informed that a hearing had been listed before the English court on 24 July 2000. Consequently this would enable the English authorities to deal with any immediate threats to the safety or welfare of the children.

Undertakings

It was unnecessary to decide on the propriety and effectiveness of the High Court Judge's action in requiring persons who were not parties to the proceedings to give undertakings. The undertakings sought and given in the High Court were in the context of the children returning to England in the care of the paternal grandparents. As the mother had subsequently expressed her willingness to return to England with the children and to care for them there, the need for undertakings by the grandparents no longer arose.

INCADAT comment

What is a Right of Custody for Convention Purposes?

Courts in an overwhelming majority of Contracting States have accepted that a right of veto over the removal of the child from the jurisdiction amounts to a right of custody for Convention purposes, see:

Australia
In the Marriage of Resina [1991] FamCA 33, [INCADAT cite: HC/E/AU 257];

State Central Authority v. Ayob (1997) FLC 92-746, 21 Fam. LR 567 [INCADAT cite: HC/E/AU 232];

Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane) [INCADAT cite: HC/E/AU 294];

Austria
2 Ob 596/91, OGH, 05 February 1992, Oberster Gerichtshof [INCADAT cite: HC/E/AT 375];

Canada
Thomson v. Thomson [1994] 3 SCR 551, 6 RFL (4th) 290 [INCADAT cite: HC/E/CA 11].

The Supreme Court did draw a distinction between a non-removal clause in an interim custody order and in a final order. It suggested that were a non-removal clause in a final custody order to be regarded as a custody right for Convention purposes, that could have serious implications for the mobility rights of the primary carer.

Thorne v. Dryden-Hall, (1997) 28 RFL (4th) 297 [INCADAT cite: HC/E/CA 12];

Decision of 15 December 1998, [1999] R.J.Q. 248 [INCADAT cite: HC/E/CA 334];

United Kingdom - England & Wales
C. v. C. (Minor: Abduction: Rights of Custody Abroad) [1989] 1 WLR 654, [1989] 2 All ER 465, [1989] 1 FLR 403, [1989] Fam Law 228 [INCADAT cite: HC/E/UKe 34];

Re D. (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [INCADAT cite: HC/E/UKe 880];

France
Ministère Public c. M.B. 79 Rev. crit. 1990, 529, note Y. Lequette [INCADAT cite: HC/E/FR 62];

Germany
2 BvR 1126/97, Bundesverfassungsgericht, (Federal Constitutional Court), [INCADAT cite: HC/E/DE 338];

10 UF 753/01, Oberlandesgericht Dresden, [INCADAT cite: HC/E/DE 486];

United Kingdom - Scotland
Bordera v. Bordera 1995 SLT 1176 [INCADAT cite: HC/E/UKs 183];

A.J. v. F.J. [2005] CSIH 36, 2005 1 SC 428 [INCADAT cite: HC/E/UKs 803];

South Africa
Sonderup v. Tondelli 2001 (1) SA 1171 (CC), [INCADAT cite: HC/E/ZA 309];

Switzerland
5P.1/1999, Tribunal fédéral suisse, (Swiss Supreme Court), 29 March 1999, [INCADAT cite: HC/E/CH 427].

United States of America
In the United States, the Federal Courts of Appeals were divided on the appropriate interpretation to give between 2000 and 2010.

A majority followed the 2nd Circuit in adopting a narrow interpretation, see:

Croll v. Croll, 229 F.3d 133 (2d Cir., 2000; cert. den. Oct. 9, 2001) [INCADAT cite: HC/E/USf 313];

Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir 2002) [INCADAT cite: HC/E/USf 493];

Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003), cert. denied 157 L. Ed. 2d 732, 124 S. Ct. 805 (2003) [INCADAT cite: HC/E/USf 494];

Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008), [INCADAT cite: HC/E/USf 989].

The 11th Circuit however endorsed the standard international interpretation.

Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) [INCADAT cite: HC/E/USf 578].

The matter was settled, at least where an applicant parent has a right to decide the child's country of residence, or the court in the State of habitual residence is seeking to protect its own jurisdiction pending further decrees, by the US Supreme Court endorsing the standard international interpretation. 

Abbott v. Abbott, 130 S. Ct. 1983 (2010), [INCADAT cite: HC/E/USf 1029].

The standard international interpretation has equally been accepted by the European Court of Human Rights, see:

Neulinger & Shuruk v. Switzerland, No. 41615/07, 8 January 2009 [INCADAT cite: HC/E/ 1001].

Confirmed by the Grand Chamber: Neulinger & Shuruk v. Switzerland, No 41615/07, 6 July 2010 [INCADAT cite: HC/E/ 1323].


Right to Object to a Removal

Where an individual does not have a right of veto over the removal of a child from the jurisdiction, but merely a right to object and to apply to a court to prevent such a removal, it has been held in several jurisdictions that this is not enough to amount to a custody right for Convention purposes:

Canada
W.(V.) v. S.(D.), 134 DLR 4th 481 (1996), [INCADAT cite: HC/E/CA17];

Ireland
W.P.P. v. S.R.W. [2001] ILRM 371, [INCADAT cite: HC/E/IE 271];

United Kingdom - England & Wales
Re V.-B. (Abduction: Custody Rights) [1999] 2 FLR 192, [INCADAT cite: HC/E/UKe 261];

S. v. H. (Abduction: Access Rights) [1998] Fam 49 [INCADAT cite: HC/E/UKe 36];

United Kingdom - Scotland
Pirrie v. Sawacki 1997 SLT 1160, [INCADAT cite: HC/E/UKs 188].

This interpretation has also been upheld by the Court of Justice of the European Union:
Case C-400/10 PPU J. McB. v. L.E., [INCADAT cite: HC/E/ 1104].

The European Court held that to find otherwise 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 sole custodian.

For academic commentary see:

P. Beaumont & P. McEleavy The Hague Convention on International Child Abduction, Oxford, OUP, 1999, p. 75 et seq.;

M. Bailey The Right of a Non-Custodial Parent to an Order for Return of a Child Under the Hague Convention; Canadian Journal of Family Law, 1996, p. 287;

C. Whitman 'Croll v Croll: The Second Circuit Limits 'Custody Rights' Under the Hague Convention on the Civil Aspects of International Child Abduction' 2001 Tulane Journal of International and Comparative Law 605.

Undertakings

Preparation of INCADAT case law analysis in progress.