CASE

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Case Name

Re B. (A Minor) (Abduction) [1994] 2 FLR 249, [1994] Fam Law 606

INCADAT reference

HC/E/UKe 4

Court

Country

UNITED KINGDOM - ENGLAND AND WALES

Name

Court of Appeal

Level

Appellate Court

Judge(s)
Staughton, Waite and Gibson L.JJ.

States involved

Requesting State

AUSTRALIA

Requested State

UNITED KINGDOM - ENGLAND AND WALES

Decision

Date

29 April 1994

Status

Final

Grounds

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3

Order

Appeal dismissed, return ordered

HC article(s) Considered

3 5

HC article(s) Relied Upon

3

Other provisions

-

Authorities | Cases referred to
Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 2 FLR 450; Re H., Re S. (Minors) (Abduction: Custody Rights) [1991] 2 AC 476, [1991] 3 WLR 68, [1991] 3 All ER 230; Re C. (Minor: Child Abduction: Rights of Custody Abroad) [1989] 1 WLR 654, [1989] 2 All ER 465, [1989] 1 FLR 403; Re J. (A Minor) (Abduction: Ward of Court) [1989] Fam 85, [1989] 3 WLR 825, [1989] 3 All ER 590, [1990] 1 FLR 276.

INCADAT comment

Article 12 Return Mechanism

Rights of Custody
Inchoate Rights of Custody

Exceptions to Return

Consent
Consent and Alleged Deception

SUMMARY

Summary available in EN | FR | ES

Facts

The child, a boy, was 6 1/3 at the date of the alleged wrongful retention. He had lived in Western Australia all of his life. The parents were not married and the father had no legal custody rights in respect of the boy. However, for the six months prior to the removal the father was the child's primary carer, the mother having returned to Wales, her jurisdiction of origin, in April 1992.

Prior to the maternal grandmother taking the child to Wales to visit the mother, the father's lawyer drafted an agreement which specified that the parents were to have joint guardianship, with the father exercising sole custody. However, this agreement was not registered with the local court and therefore was not enforceable under Western Australian law.

On 30 March 1994 the High Court ordered the return of the child, finding that the father had acquired rights amounting to Convention "rights of custody" - first through his active role in the care of the child, secondly through the status which the mother and the grandmother had themselves accorded to him as a party whose consent was necessary before F could be removed from the jurisdiction or issued with a passport, and thirdly though the rights recognized or accorded to him when the mother signed the minute of agreement.

The mother appealed.

Ruling

Appeal dismissed and return ordered; the role played by the unmarried father in the care of the child was sufficient to vest him with custody rights. These rights were breached when the child was fraudulently taken to Wales.

Grounds

Removal and Retention - Arts 3 and 12

Consent to the removal of a child is unlikely to be regarded as valid where obtained through a calculated and deliberate fraud.

Rights of Custody - Art. 3

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.

INCADAT comment

Inchoate Rights of Custody

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.

Consent and Alleged Deception

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.