Supreme Court refers issue on custody rights of unmarried fathers to EU court for ruling

THE SUPREME Court has asked the European Court of Justice to decide an important issue concerning the custody rights of unmarried fathers in matters of child removal or abduction.

The issue arose in an appeal by a man against the High Court’s rejection of his challenge to his former partner’s removal a year ago of their three children to England to live.

The couple had had a 10-year relationship and the mother went to England last July with the children, all aged under 10, just weeks after she ended the relationship.

The Supreme Court yesterday said, while it agreed with the High Court that the removal was not unlawful because the man had not applied for custody rights here, it would refer a question to the European Court of Justice.

The EU court, which sits in Luxembourg, is expected to determine the issue within three months under a special urgent procedure. The issue relates to the interpretation of the notion of “rights of custody” within the meaning of a November 2003 EC regulation (the Brussels regulation) on the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility.

The European court has to decide whether the Brussels regulation, as interpreted pursuant to Article 7 of the EU Charter of Fundamental Rights (CFR) or otherwise, precludes a member state requiring an unmarried father to have a court order granting him custody before he can have custody rights rendering the children’s removal wrongful under the regulation.

The Supreme Court said it was its own view the answer to that question should be “No”.

Giving the Supreme Court decision, Mr Justice Nial Fennelly said, as a matter of Irish national law, the father, having failed to secure or even apply for a custody order at the time the children were removed, had no right of custody. On that basis, the children were not wrongfully removed from Ireland in July 2009.

In the interpretation of the Hague Convention on Child Abduction, the Irish courts, as the law stands, have declined to recognise as amounting to rights of custody the “inchoate” rights of those carrying out parental duties and enjoying parental privileges where those were not yet formally recognised by law, the judge added.

The Supreme Court did not believe there was anything in the Brussels regulation or Article 7 of the EU Charter of Fundamental Rights to suggest a natural father who does not have a court order or legal agreement granting him custody rights should still be regarded as having custody rights when courts in the children’s country of habitual residence are deciding issues of wrongful removal in cases of child abduction.

The Supreme Court, however, recognised the definition of custody rights for the purpose of applications for the return of children under the Hague Convention was now contained in Article 2.9 of the Brussels regulation which provides the term “rights of custody” shall include rights “and duties” relating to the care of a child, particularly the right to determine the child’s place of residence.

That definition of “rights of custody” introduced the words “and duties” but otherwise did not differ from Article 5 of the Hague Convention.

The Brussels regulation also envisaged a right of custody shall have been “acquired by judgment

. . . under the law of the member state” and this wording closely followed Article 3 of the Hague Convention.

In his Supreme Court appeal, the man argued the rights of custody protected by the Hague Convention include those of an unmarried father living with and by agreement exercising day-to-day care of his children.

He argued he was in the process of asserting his right to apply to be appointed a guardian for the children when they were removed and the court should recognise the “inchoate” rights of a natural father who had not obtained recognition of his position via a court order if he was carrying out duties of a custodial character.

Mr Justice Fennelly said the Irish courts interpret the rights of parents and their children, whether married or not, in accordance with Irish law and the Constitution, which accords a special position to the family and particularly the family based on marriage.

The Irish courts are obliged to interpret and apply the law, insofar as possible, in a manner compatible with the State’s obligations under the European Convention on Human Rights (ECHR). The Irish courts would generally apply the ECHR’s interpretation of the convention unless that interpretation was inconsistent with the Constitution.

A natural father has the right under Irish law to apply to be appointed guardian of his child and an independent right to apply for custody and access orders, the judge said. The blood link between a natural father and his child was an important element but in itself did not, without more, confer any rights on the natural father.

A court must consider the father/child relationship in all the circumstances “but always subject to the overriding consideration of the best interests of the child”.

A natural father has no rights of custody in Irish law in the absence of a court order granting such rights and therefore no right to determine the place of residence of his child except as may be granted under a court order.

The Supreme Court believed nothing in the jurisprudence of the ECHR suggested the provisions of Irish law relating to the rights of custody of a natural father are incompatible with the convention.

Given the “infinite variation” of extra-marital relationships and consequent relationships with children, the Supreme Court believed the requirement for a court order to give legal effect to the right of custody of a natural father was necessary to the protection of the best interests of a child.

The couple lived here and in other countries before returning to Ireland in late 2008 where they remained until the woman and children left last year. The High Court found their relationship appeared “rather unstable” but noted the man denied he was violent to the woman.

The High Court found the children’s habitual residence when removed by their mother in July 2009 was Ireland. When the man brought his proceedings here in December 2009, the habitual residence was England, it ruled.