HC/E/UKn 1259
Royaume-Uni - Irlande du Nord
Instance Suprême
Lituanie
Royaume-Uni - Irlande du Nord
15 May 2014
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Droit de garde - art. 3 | Questions procédurales | Questions ne relevant pas de la Convention
Recours accueilli, retour ordonné
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Rights of Custody:
The issue before the Court was whether the concept of "rights of custody" was to be interpreted strictly and literally as a reference to rights which were already legally recognised and enforceable, or, to be interpreted purposively as a reference to a wider category of "inchoate rights", the existence of which would have been legally recognised had the question arisen before the removal or retention in question.
Rights of Custody under the Hague Convention and Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003):
The Court noted the difference in wording of Article 3 of the Hague Convention and Article 2(11) of the Brussels IIa Regulation. The former provided that rights of custody may arise "in particular" by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State, whilst the latter referred to the same three ways, albeit in slightly different terms, but did not contain the caveat "in particular".
The majority held that that since the whole thrust of the Brussels IIa Regulation was to supplement and strengthen the obligations laid down in the Hague Convention, and that it was unlikely the Regulation intended to cut down the possible sources of custody rights which were indirectly protected by the obligation to return the child, the instruments should be construed consistently with one another wherever possible.
Lord Wilson dissented, holding that the omission was deliberate. He inferred, at [74], that it "reflects a study of Convention jurisprudence which gave no support for the view that rights of custody could arise otherwise than in one of the three ways and therefore a conclusion that the words were redundant and productive only of confusion".
Inchoate Rights of Custody:
The Court reviewed English and overseas case law and noted that the concept was used by Waite LJ in Re B (A Minor) (Abduction) [1994] 2 FLR 249 [INCADAT Reference: HC/E/UKe 4] to describe "the inchoate rights of those who are carrying out duties and enjoying privileges of a custodial or parental character which, though not yet formally recognised or granted by law, a court would nevertheless be likely to uphold in the interests of the child concerned".
The Court noted that the courts of England and Wales had embraced the concept of inchoate rights both for incoming (requested) and outgoing (requesting) abduction cases, and there was a small number of supportive authorities from other common law jurisdictions (New Zealand - outgoing, Canada - incoming and Australia - incoming). The Irish Supreme Court however had expressly refused to recognise the concept in an incoming (requested) case from the United States of America.
Inchoate Rights of Custody and Agreements having legal effect:
The Court considered the meaning and application of the third source of custody rights provided for in Article 3 of the Hague Convention, namely rights arising by reason of an agreement having legal effect under the law of the State of the child's habitual residence.
The Court noted that whilst English legislation encouraged parents to make their own arrangements for their children's future without seeking the intervention of the courts, it was unclear whether the relevant provisions amounted to giving such arrangements legal effect for the purpose of Article 3 of the Hague Convention.
The majority held that it was difficult to reconcile English cases on inchoate rights with the concept of "an agreement having legal effect", unless the latter concept were to be given an extremely wide meaning. Whilst the English cases all had a basis in the voluntary delegation or abandonment of the child to the care of the people from whom the child had been taken, it could not be said that such delegation had the effect of a legally binding agreement which could not be revoked without the approval of a court. An inchoate rights situation could only be analysed in terms of an agreement having legal effect, if the unilateral decision of the taking parent was not seen as effective to revoke that agreement.
Lord Wilson dissented, holding that the doctrine of inchoate rights reflected a legitimate application of the third of the prescribed ways in which rights of custody may arise, namely by an agreement having legal effect. He stated that usually such an agreement would be express and if it provided a basis for presenting a legal claim to the competent authorities, it would have the requisite legal effect. He added that in certain unusual circumstances, it may be proper to infer from the conduct of a person with rights of custody that she (or he) had agreed that another person should not just help to care for the child nor even care single-handedly for him, but should have rights of custody over him.
If in those circumstances there was a likelihood that, had it been asked to do so, a court in the State of habitual residence would have given legal effect to the inferred agreement by investing that other person with rights of custody, one could properly conclude that the other person had rights of custody even though they were inchoate. Lord Wilson stated that the words of the Brussels IIa Regulation allowed no wider principle.
Reconciling "Inchoate Rights" with key case law on rights of custody:
The Court held that the concept could be reconciled with Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 [INCADAT Reference: HC/E/UKe 2] because it was upheld in cases in which the person with legal rights of custody had abandoned the child or delegated his primary care to others. As regards Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 [INCADAT Reference: HC/E/UKe 880], inchoate rights were not relevant as the mother had not delegated the primary care of the child to the father and indeed the parents were not even sharing care of the child.
Turning to Case C-400/10 PPU J. McB. v. L.E. [2011] Fam 364 [INCADAT Reference: HC/E/ 1104], the Supreme Court noted that the Court of Justice of the European Union (CJEU) had rejected an argument that the Charter of Fundamental Rights gave inchoate rights to a person who could make an application for rights of custody. The Court, acknowledging that the McB ruling presented a difficulty for the grandparents, turned to consider the nature of the question to be decided entirely by the law of the Member State of the child's habitual residence.
Referring to earlier English case law, the Court noted that the determination of the existence of rights of custody gave rise to two questions. First, there was the domestic law question: what rights does the applicant have in national law? Second, there was the Hague Convention question: were those rights to be characterised as rights of custody for the purposes of the Convention? The majority held that the concept of inchoate rights of custody was developed as an answer to the second question. The Supreme Court held, at [56], that in Re B (A Minor)(Abduction) [1994] 2 FLR 249 the Court of Appeal was asking "whether the position of the father amounted to rights of custody for the purposes of the Convention, not whether the national law of Western Australia would so regard it". "Again, in outgoing cases such as Re W; Re B (para 25 above), the court was not suggesting that these were rights recognised for domestic law purposes, but whether they were rights which in English law were recognised for Convention purposes."
The Court accepted that there was very little support for such an expansive view of rights of custody amongst the States Parties, but noted that the English approach, inter alia, fulfilled key objectives of the Hague Convention. The Court concluded that the CJEU ruling did not constitute an insuperable obstacle to the continued application of the concept. In arriving at this conclusion, it noted that the CJEU had not been asked whether the Brussels IIa Regulation precluded a Requesting State from regarding whatever legal situation the applicant might be in as being within the autonomous concept of rights of custody for the purpose of the Regulation. If a strictly limited category of so-called inchoate rights fell within that concept for the purpose of the Hague Convention, there was no reason why they should not do so for the purpose of the Regulation, which was intended to strengthen rather than weaken the implementation of the Convention.
The Court held however that the description of inchoate rights in Re B (A Minor) (Abduction) [1994] 2 FLR 249 was imprecise. The majority set down five criteria to identify the people possessing the strictly limited category of inchoate rights:
(a) They must be undertaking the responsibilities, and thus enjoying the concomitant rights and powers, entailed in the primary care of the child.
(b) They must not be sharing those responsibilities with the person or persons having a legally recognised right to determine where the child shall live and how he /she shall be brought up. They would not then have the rights normally associated with looking after the child.
(c) That person or persons must have either abandoned the child or delegated his primary care to them.
(d) There must be some form of legal or official recognition of their position in the country of habitual residence.
(e) There must be every reason to believe that, were they to seek the protection of the courts of that country, the status quo would be preserved for the time being, so that the long-term future of the child could be determined in those courts in accordance with his /her best interests, and not by the pre-emptive strike of abduction.
Lord Wilson held that whilst he agreed with criteria (a), (b) and (c), he found no logical need for (d) and disagreed with (e), which he held set the bar too low, for it failed to reflect the fact that the search was for rights of custody rather than a right to continue to care for a child in a specified place on an interim basis pending the resolution of proceedings. He proposed as an alternative, at [76]: "there is a likelihood that, had it been asked to do so, a court in the state of habitual residence would have inferred from the facts in (a), (b) and (c) an agreement that the carers should have rights of custody and would by virtue of the agreement have proceeded to invest them with such rights."
Application to the Facts:
The majority held that the grandmother's position as carer for the child retained some legal content after the revocation of the mother's delegation that she care for the child. This was because the competent local authority, the Children's Rights Division, was monitoring and controlling the situation of the child. The majority held that it could be concluded from the legal advice which the mother had been given that had either she or the grandmother taken legal proceedings in Lithuania, then the status quo would have been preserved while these were resolved. This reasoning was rejected by Lord Wilson, who held that the effect of the order dated 20 February 2012 was that the grandparents no longer had rights of custody.
The majority of the Court having allowed the appeal, an order for return was made. The Court ordered that if within 21 days the mother applied to the Northern Ireland High Court for permission to apply for the child not to be returned, pursuant to Article 13, the order of the Supreme Court was to be stayed until the matter was mentioned, on the first available date, before the Family Division Judge in the High Court in Northern Ireland. Were the mother permitted to make her application, the competent judge would have the power to stay the return order.
Lord Wilson held that this approach was not appropriate and that it was contrary to principle for the mother to be allowed at this stage to raise a defence which would be based to a substantial extent on the consequences for the child of the existing delay in determination of the application and which would be productive of significant further delay.
The Court referred to the power of the High Court to exercise its inherent jurisdiction to order the immediate return of a child who had been removed from his country of habitual residence. The majority noted that there were some cases (and the present case would have been one) in which it was appropriate to allow an application under the inherent jurisdiction to proceed hand in hand with an application under the Hague Convention.
Lord Wilson stated that the grandparents' case was tailor-made for a prompt application for a return order pursuant to the inherent jurisdiction. He affirmed, at [79], that there was no need for the Supreme Court to "shoe-horn into the Convention a case, like the present, which (so I consider) does not naturally fit into it. The risk is that it thereby distorts the domestic jurisprudence relating to the Convention; sets it at odds with the international jurisprudence; and compromises the need for a swift and straightforward inquiry into the existence of rights of custody".
Author of the summary: Peter McEleavy
See also the decision of the High Court of Justice in Northern Ireland - Family Division VK and AK v CC [2013] NIFam 6 [INCADAT Reference: HC/E/UKn 1250] and the decision of the Northern Ireland Court of Appeal VK, AK v CC [2014] NICA 15 [INCADAT Reference: HC/E/UKn 1257].
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.