Posts
Jeremy
D. Morley
The U.K. Supreme Court has just issued a significant
decision on the definition of the all-important term “right of custody” as used
in the Hague Abduction Convention. In the Matter of K (A Child)
(Northern Ireland) [2014] UKSC 29. The Court has now ruled that
that term may include certain informal rights (termed “inchoate rights”), but
only if specified and limited conditions are fulfilled.
The child in question lived with his maternal
grandparents in Lithuania, with the express written agreement of the child’s
mother. The father was always uninvolved. When the child was 7 years old the
mother unilaterally removed from Lithuania to Northern Ireland against the
grandparents’ wishes. When the child was an infant a Lithuanian court order had
placed the child in the temporary care of the grandparents but that order
terminated upon the application of the child’s mother shortly before she
removed the child from Lithuania.
The grandparents brought a Hague proceeding claiming
that the child had been removed from his habitual residence in Lithuania in
violation of their “rights of custody” over the child. They had no custody
order in their favor and there was no evidence that grandparents had any rights
in respect of the child under Lithuanian law. Nonetheless, if they had applied
for a custody order in Lithuania they presumably would have had a good chance
to have secured one.
Article 3 of the Convention provides that:
“The removal or retention of a child is to be
considered wrongful where – (a) it is in breach of rights of custody attributed
to a person, an institution or any other body, either jointly or alone, under
the law of the State in which the child was habitually resident immediately
before the removal or retention; and (b) at the time of removal or retention
those rights were actually being exercised, either jointly or alone, or would
have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a)
above, 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."
Rights of custody are further defined in Article
5(a), which provides that, for the purposes of the Convention, "'rights of
custody' shall include rights relating to the care of the person of the child
and, in particular, the right to determine the child's place of
residence"; while rights of access are further defined in article 5(b),
which provides that " 'rights of access' shall include the right to take a
child for a limited period of time to a place other than the child's habitual
residence". Rights of custody are respected by the obligation in Article
12 to order the return of the child "forthwith" where he has been
wrongfully removed or retained in terms of article 3, unless one of the limited
exceptions provided for in Articles 12 and 13 apply.
The attribution of "rights of custody" is
to be determined according to the law of the country where the child was
habitually resident immediately before his removal or retention.
The Court considered foreign authorities on
“inchoate” rights. It did not unearth any helpful United States authority on
this issue. It found that New Zealand has recognized such rights under the
Convention for outgoing (requesting) cases; Canada has recognized it for an
incoming (requested) case; Australia has recognized it for an incoming
(requested) case from the USA but failed even to consider it in an incoming
(requested) case from New Zealand; and Ireland has expressly refused to recognize
it in an incoming (requested) case from the United States.
The Court concluded that a “strictly limited
category” of inchoate rights should be permitted to form the basis for a Hague
return application in order to fulfill the purpose of the treaty.
Lady Hale, speaking for the majority of the Court,
stated that the applicability of inchoate rights of custody should be limited
to situations in which (a) the applicant was undertaking the responsibilities
and enjoying the powers entailed in the primary care of the child; (b) the
applicant person was not sharing them with the person who had a legally recognized
right to determine where the child should live and how he should be brought up;
(c) that person had abandoned the child or delegated his primary care to them;
(d) there was some form of legal or official recognition of the applicant’s
position in the country of habitual residence (to distinguish those whose care
of the child is lawful and those whose care is not); and (e) there is every reason
to believe that, were the applicant to seek the protection of the courts of
that country, the status quo would be preserved for the time being while the
long term future of the child could be determined in those courts in accordance
with his best interests.
Applying that standard to the pending case, the
Court ruled that the grandparents did indeed have a Hague Convention right of
custody and accordingly the Court ordered the return of the child to Lithuania
forthwith. A final comment in the judgment is also noteworthy.
Lady Hale noted that the English court possess an “inherent jurisdiction to
order the immediate return of a child who has been removed from his country of
habitual residence.” Such jurisdiction is entirely independent of the Hague
Convention and should have been exercised in the pending case.
