HC/E/UKe 4
UNITED KINGDOM - ENGLAND AND WALES
Court of Appeal
Appellate Court
AUSTRALIA
UNITED KINGDOM - ENGLAND AND WALES
29 April 1994
Final
Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3
Appeal dismissed, return ordered
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Consent to the removal of a child is unlikely to be regarded as valid where obtained through a calculated and deliberate fraud.
The majority affirmed that the concept of custody rights should, in the context of the Convention, be interpreted in the widest sense possible. In particular it should be extended to cover 'inchoate rights', i.e. custody rights which are not recognised in law, but which a court would be likely to uphold in the interests of the individual child. However, this is a matter which must be determined in the light of the circumstances of each case. The dissenting view was that the father did not have any custody rights and consequently there had not been a wrongful removal or retention.
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) [1994] 2 FLR 249 [INCADAT cite: HC/E/UKe 4],
and has subsequently been followed in that jurisdiction in:
Re O. (Child Abduction: Custody Rights) [1997] 2 FLR 702, [1997] Fam Law 781 [INCADAT cite: HC/E/UKe 5];
Re G. (Abduction: Rights of Custody) [2002] 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) [1999] Fam 1 [INCADAT cite: HC/E/Uke 503];
Re B. (A Minor) (Abduction: Father's Rights) [1999] Fam 1 [INCADAT cite: HC/E/UKe 504];
Re G. (Child Abduction) (Unmarried Father: Rights of Custody) [2002] EWHC 2219 (Fam); [2002] ALL ER (D) 79 (Nov), [2003] 1 FLR 252 [INCADAT cite: HC/E/UKe 506].
In one English first instance decision: Re J. (Abduction: Declaration of Wrongful Removal) [1999] 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) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 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 [2002] 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. [1999] 2 ILRM 1; [2000] 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.
There are examples of cases where it has been argued that prima facie consent should be vitiated by alleged deception on the part of the abducting parent, see for example:
United Kingdom - England & Wales
Re D. (Abduction: Discretionary Return) [2000] 1 FLR 24, [INCADAT cite: HC/E/UKe 267].
The fact that a document consenting to the removal of the children was presented to the mother on a pretext did not necessarily lead to the conclusion that it was a trap. The mother was found to have consented. But the trial judge nevertheless exercised his discretion to make a return order.
Israel
Family Application 2059/07 Ploni v. Almonit, [INCADAT cite: HC/E/IL 940].
Allegation of deception rejected; the father's consent was found to be informed and since it had been relied upon by the mother, the father could not renege on his initial consent to the relocation.