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Recherche de décisions
Nouvelle rechercheAFFAIRE
Nom de l'affaire
VK and AK v CC [2013] NIFam 6
Référence INCADAT
HC/E/UKn 1250
Juridiction
Royaume-Uni - Irlande du Nord
Première instance
États concernés
Lituanie
Royaume-Uni - Irlande du Nord
Décision
10 June 2013
Susceptible de recours
Droit de garde - art. 3
Demande rejetée
Article 2 du Règlement Bruxelles II bis (Règlement (CE) No 2201/2003 du Conseil du 27 novembre 2003)
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INCADAT commentaire
Mécanisme de retour
Droit de garde implicite
RÉSUMÉ
Résumé disponible en
EN
Facts
Sometime thereafter, at least by May 2006, the mother relocated to Northern Ireland. There was then some phone contact between mother and grandparents and a couple of visits. The Court also found that the mother sent back money to the grandparents from time to time.
In July 2010, the mother had a child in Northern Ireland with her new partner. In February 2012, the mother and her partner travelled to Lithuania with the intention of taking the first child back to Northern Ireland. The mother submitted to the Court that she considered taking legal steps to achieve this objective, but finally decided to take matters into her own hands.
The Court found that on 12 March, the mother and her partner pulled the child from the grandmother, put him in a van and transported him via Slovakia, Germany, France and England to Northern Ireland. The maternal grandparents petitioned for the child's return to Lithuania.
Ruling
Grounds
Rights of Custody - Art. 3
The Court found that at all material times, from shortly after the birth to the date of abduction in 2012, the grandparents were, at the very least, the de facto carers of the child. The position was formalised on 10 January 2007 when the grandmother was given "temporary care (custody)" of the child by the administration director of Klaipeda City Municipality. On 28 February 2012, the temporary care order was discontinued.
The Court noted that the grandmother had been granted an authorisation by the mother on 13 April 2005 to visit all medical institutions and hospitals with the child. And, on 20 April 2006, the mother had signed a power of attorney giving the grandmother authority to receive the passport of the child and to deal with legal and governmental institutions in respect of the child on her behalf. The power of attorney was stated to be valid until 20 April 2016.
The Court considered first what rights the grandparents had under Lithuanian law. It found, on the balance of probabilities, that at the date of the abduction they enjoyed only "moral" or de facto rights to care for the child. They did not have "rights of custody" as a matter of Lithuanian law.
The Court then considered the line of English authority relating to "inchoate rights of custody". In Re B (A Minor) (Abduction) [1994] 2 FLR 249 [INCADAT Reference: HC/E/UKe 4] Waite L.J. held:
"If, before the child's abduction, the aggrieved parent was exercising functions in the requesting State of a parental or custodial nature without the benefit of any court order or official custodial status, it must in every case be a question for the courts of the requested State to determine whether any of those functions fall to be regarded as "rights of custody" within the terms of the Convention."
The Court accepted that the grandparents had been the child's exclusive carers over a lengthy period, and, if the line of authority on inchoate rights of custody was followed, they ought to be viewed as having rights of custody for Convention purposes.
The Court found however that the line of authority should not be followed. First, the Court questioned whether it was appropriate to consider the grandparents' situation in the context of inchoate rights of custody, given that it may have been that the grandmother had rights of custody by virtue of the 2007 decision of the administration director of Klaipeda City Municipality but that those rights had been discontinued shortly before the child's removal.
The Court also questioned whether the inchoate rights of custody line of cases could be viewed as being in breach of the authority of the House of Lords as expressed in its decision in Re J (A Minor) (Abduction) [1990] 2 AC 562 [INCADAT Reference HC/E/UKe 2]. The Court noted that the more recent decision of the House of Lords in Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 [INCADAT Reference HC/E/UKe 880] made no reference to the inchoate right of custody line of authorities in circumstances where the issue of how rights of custody for the purpose of the Convention were to be identified, was directly under discussion.
Finally, the Court referred to Case C-400/10 PPU J. McB. v. L.E. [2011] Fam 364 [INCADAT Reference: HC/E/ 1104] in which the Court of Justice of the European Union (CJEU) held that for the purposes of the Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003), the wrongfulness of a child's removal was entirely dependent on the existence of rights of custody, conferred by the relevant national law.
In deciding how to treat the grandparents' application, the Court concluded that it was better to follow the line of authority beginning with Re J and ending with the CJEU's view in McB v E. The Court stated that it was unattracted by the proposition that it should read the international provisions in the present case as including "inchoate rights of custody".
It held that at the relevant time, the removal of the child was not in breach of any legally recognised right of the grandparents in Lithuania law, and it followed that there had not been a wrongful removal of the child for the purpose of the Hague Convention when read with the provisions of the Brussels IIa Regulation.
Author of the summary: Peter McEleavy
INCADAT comment
See also the decision of the Northern Ireland Court of Appeal VK, AK v CC [2014] NICA 15 [INCADAT Reference: HC/E/UKn 1257] and decision of the Supreme Court of the United Kingdom In the Matter of K (A child) (Northern Ireland) [2014] UKSC 29 [INCADAT Reference: HC/E/UKn 1259].
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.