This is an order for reference for preliminary ruling by the Supreme Court
pursuant to Article 267 of the Treaty on the Functioning of the European
Union. The question relates to the interpretation of the notion of “rights
of custody” within the meaning of Council Regulation (EC) No 2201/2003
of 27th November 2003 on the recognition and enforcement of judgments
in matrimonial matters and matters of parental responsibility, repealing
Regulation (EC) No 1347/2000 (hereinafter “Regulation No 2201/2003”)
and in the Hague Convention of 25 October 1980 on the Civil Aspects Of
International Child Abduction (hereinafter “the Hague Convention”).
The Court requests the Court of Justice to deal with the case under the
urgent procedure pursuant to Article 104b of the Rules of Procedure of
the Court of Justice. It is recognised in the 17th recital to Regulation No
2201/2003 that in cases of wrongful removal of a child, which is alleged in
the present case, the return of the child should be obtained without delay.
The appellant in the national proceedings is the father and the respondent
is the mother of three children born to them between 2000 and 2007
while the parties cohabited in a non-marital relationship.
It is agreed between the parties that Ireland was the country of habitual
residence of the children, for the purpose of the Hague Convention,
on 25th July 2009 on which date the respondent, without notice to the
appellant, removed the children from Ireland to England.
The issue in dispute is whether the appellant had “rights of custody” in
respect of the children on the date of their removal from Ireland.
Legal Proceedings
On the 2nd November, 2009 the appellant caused to be issued in the High
Court of Justice (Family Division) of England and Wales (hereinafter “the
English Court”) an originating summons in which he applied to the English
Court for an order for the return of the children to Ireland pursuant to the
legislation of the United Kingdom giving effect to the Hague Convention
and to Regulation No 2201/2003.
The English Court (McFarlane J.), by order dated 20th November,
2009, requested that the appellant, pursuant to Article 15 of the Hague
Convention, obtain from the High Court of Ireland a decision or other
determination that the removal of the children from Ireland was wrongful
within the meaning of Article 3 of the Hague Convention.
On 22nd December 2009, the appellant commenced proceedings in the
High Court of Ireland by way of Family Law Special Summons seeking
a declaration pursuant to the Irish legislation implementing the Hague
Convention and to Article 15 of that Convention that the removal of
the children from Ireland in July 2009 had been wrongful both within
the meaning of Article 3 of the Hague Convention and of Article 2 of
Regulation No 2201/2003. The appellant applied to the High Court in
the same action for orders of guardianship and custody in respect of the
children, which latter issues have not yet been determined by the Irish
courts.
The High Court heard the appellant’s application pursuant to the Hague
Convention and to Regulation No 2201/2003. By a judgment delivered
on 28th April 2010 that court (per MacMenamin J.) determined that the
appellant had not enjoyed any rights of custody in respect of the children
at the time of their removal from Ireland and that the removal had not,
therefore, been wrongful within the meaning of the Hague Convention or
Regulation No 2201/2003.
The appellant has appealed to the Supreme Court against the judgment
of the High Court. Some of the arguments of the appellant concerning
the interpretation of Regulation No 2201/2003 have caused this Court
to make the present order for reference. Prior to considering those
arguments, it is necessary to give an account of the facts insofar as they
are relevant to the question whether the appellant enjoyed “rights of
custody” at the date of removal of the children.
Facts: the relationship between the parties
The parties met in 1999 in England. The father, an Irish national, was
then aged 24 years. The mother is English and was then 20 years of age.
In the following years the parties lived in England, Australia, Northern
Ireland and Ireland. They had three children: J, a son, was born in
England on 21st December, 2000; E, a daughter, was born in Northern
Ireland on 20th November 2002; J.C., a daughter was born in Northern
Ireland on the 22nd July, 2007. The respondent had two children from
an earlier relationship, one of whom (a boy born in 1998) lived with the
parties and treated the appellant as his father but is not the subject of
these proceedings.
In November, 2008 the parties came to live in Ireland and found a home
near to his family's original home. Until July 2009 they lived in that area.
The children attended school locally.
The High Court judge noted that the affidavits sworn by the parties
contained a number of accusations and counter accusations. He found
that there was a picture of a rather unstable relationship, which had never
been settled. The High Court was not required to resolve the conflicts
of evidence between the parties. That would be a matter for resolution
by the court ultimately found to have jurisdiction to decide substantive
matters of custody and access. The function of the High Court was to
decide whether the children had been wrongfully removed from Ireland
and specifically whether the appellant had rights of custody in Irish law.
Relations between the parties deteriorated in late 2008 and early 2009.
Alleging aggressive behaviour on the part of the appellant, the respondent
brought the children on a number of occasions to a women's refuge. The
appellant left the family home. The respondent commended proceedings
in the local District Court seeking a barring order (excluding the appellant
from the family home) but did not appear in court to proceed with her
application.
After a period of conflict, when they lived apart, the parties were
reconciled in early April 2009. They decided to get married and agreed on
10th October 2009 as the date.
The appellant went on a training course in Northern Ireland for ten
days early in July 2009. In a telephone conversation at this time, the
respondent asked him whether he was marrying her only so as to be able
to obtain guardianship of the children. On the appellant’s return from
Northern Ireland on the 11th July, 2009 he found the family home empty.
The respondent had taken the children to the women’s refuge. She left a
letter addressed to him in which she made accusations which are denied.
She also said in that letter: “I would never deprive the kids of you... I
am not taking the kids away from you J., you are a good dad and I have
never said any different.”
The respondent remained at the refuge with the children between 11th
and 25th July. The appellant had continuing contact with and was involved
in the care of the children at that time. During that period, the respondent
changed her mind; she decided to move to and settle in England with the
children. She did not inform the appellant of her intentions. She booked
flights for herself and the children, with the assistance of the women's
refuge. On the 25th July, 2009 she and the children flew to England.
On the 15th July, 2009, the appellant’s solicitors on his instructions
prepared an application which was intended to be made to the District
Court at its next sitting in a local town on 9th September for an
order pursuant to section 6A of the Guardianship of Infants Act, 1965
appointing him to be a guardian of the children. It was a precondition
to invoking the jurisdiction of the District Court that the respondent
be served with the proceedings. The proceedings were not served,
although the appellant knew where the respondent was then residing. The
jurisdiction of the District Court had not, therefore, been invoked at the
date of the removal of the children from Ireland.
Jurisdiction of High Court and Supreme Court
The proceedings before the Irish courts which are the subject-matter of
the present appeal arise from the decision of the English Court to invoke
Article 15 of the Hague Convention which provides:
“The judicial or administrative authorities of a Contracting State may,
prior to the making of an order for the return of the child, request that the
applicant obtain from the authorities of the State of the habitual residence
of the child a decision or other determination that the removal or
retention was wrongful within the meaning of Article 3 of the Convention,
where such decision or determination may be obtained in that State.”
The Child Abduction and Enforcement of Custody Orders Act, 1991 gave
effect in Irish law to the Hague Convention. Section 15 of that Act was
amended by the European Communities (Judgments in Matrimonial
Matters and Matters of Parental Responsibility) Regulations 2005 (S.I. 112
of 2005) in order to take account, in the case of Hague Convention cases
arising between Member States of the European Union, of Regulation
No 2201/2003. Section 15 now provides for the exercise of jurisdiction
pursuant to Article 15 of the Hague Convention in the following terms:
“The Court may, on an application made for the purposes of Article 15 of
the Hague Convention, by any person appearing to the Court to have an
interest in the matter, make a declaration that the removal of any child
from, or his retention outside the State, was –
(a) in the case of a removal or retention in a Member State, a wrongful
removal or retention within the meaning of Article 2 of the Council
Regulation, or
(b) in any other case, wrongful within the meaning of Article 3 of the
Hague Convention.”
Submissions of the appellant
The appellant submitted, firstly, that Regulation No 2201/2003 had
substantially replaced the provisions of the Hague Convention and,
secondly, that the amendment of Article 6 of the Treaty on European
Union following the entry into force of the Treaty of Lisbon have effects
on the interpretation of “rights of custody.” Article 6.1 provides that the
Charter of Fundamental Rights of the European Union is to have the same
legal value as the Treaties. Article 7 of the Charter protects private and
family life.
The appellant submitted before the Supreme Court that that rights of
custody protected by the Hague Convention include those of an unmarried
father where he is living with and by agreement exercising day to day
care of the children. The right of the natural father in Irish law to apply for
an order of guardianship includes a right to have all the circumstances of
his relationship with his child considered by the court. The appellant was
in the process of asserting his right to apply to be appointed a guardian
for the children when they were removed; it was understandable that he
had not previously done so. The court should, in an appropriate case, be
prepared to recognise “inchoate rights” of a natural father who had not
obtained recognition of his position in the form of a court order, at least
where he was carrying out duties and enjoying privileges of a custodial
character.
Submissions of the respondent
The Respondent submitted that under Irish statute law an unmarried
father had no automatic right of guardianship but did have an entitlement
to apply to court to be appointed a guardian of his children.
It was never intended that the provisions of Regulation No 2201/2003
would have the effect of establishing two separate, albeit interlinked,
strands of law governing the removal or return of a child. In particular,
it was never intended that the coming into effect of Regulation No
2201/2003 would have the effect that a removal or retention of a child
could be lawful for the purposes of Article 3 of the Hague Convention but
unlawful for the purposes of Article 2 of the Regulation No 2201/2003. It
was submitted that the provisions of Regulation No 2201/2003 were not
designed to, and do not, have the effect that a removal to, or a retention
in, a Member State would be unlawful pursuant to the provisions of Article
2 of the Regulation, while a removal to, or a retention in, a non Member
State in the same circumstances would be lawful.
The essence of the right asserted on behalf of the appellant in this case is
that if a parent reaches the threshold of family life he or she is entitled to
notice from the other parent of any intention to remove children from the
jurisdiction in which they are living. Given the low threshold required to
establish family life the vast majority of parents who have access to their
children would reach that threshold. The use of the threshold of family life
as the threshold to establish "rights of custody" would blur and undermine
the distinction between "rights of custody" and "rights of access" in the
Hague Convention. Such a development could not be said to be required
by the obligations under the European Convention on Human Rights,
when all the States are signatories to the Hague Convention which has at
its heart the distinction between rights of custody and rights of access.
The recognition of the suggested right of the appellant would undermine
an aspect of the Hague Convention regime – which is that the right in
question should have been attributed to the person concerned under the
law of the State of habitual residence. The Hague Convention is intended
to defend those relationships which are already protected in the State of
the child's habitual residence. This principle is reflected in the terms of
Regulation No 2201/2003, as is made clear at pp 13-14 of the Practice
Guide.
The recognition of the asserted right would mean that the threshold for
"rights of custody" throughout the European Union would be the existence
of family life, rather than rights pursuant to the law of the Member State
from which the child was removed. Nothing in the terms of Regulation No
2201/2003 suggests that such a fundamental change from the regime as
set out in the Hague Convention was contemplated or intended.
Legal position of the natural father in Irish law
The Irish courts interpret the rights of parents and of their children
whether within a family based on marriage or in relationships outside
marriage in accordance with Irish law, both statute and common law,
and the Constitution, which accords a special position to the family and,
in particular, to the family based on marriage. Under section 2 of the
European Convention on Human Rights Act, 2003 the courts are obliged
to interpret and apply any statutory provision or rule of law, in so far as
is possible, subject to the rules of law relating to such interpretation and
application, in a manner compatible with the State's obligations under the
provisions of the European Convention on Human Rights. Section 4(1)
(a) of that Act requires the courts to take judicial notice, inter alia, of the
judgments of the European Court of Human Rights.
The courts will, therefore, interpret any provision of national law
concerning the rights of custody of a natural father in the light of Article
8 of the European Convention and will have regard to any relevant
judgment of the European Court of Human Rights and will generally apply
the interpretation of the Convention adopted by the European Court. This
principle is subject only to the proviso that any such interpretation must
not be inconsistent with the Constitution.
Under section 6A of the Guardianship of Infants Act 1964 (as inserted
by section 12 of the Status of Children Act 1987), where “the father and
mother have not married each other, the court may, on the application
of the father, by order appoint him to be a guardian of the infant.” In
addition, section 11(4) of the Act of 1964, as amended by section 13 of
the Act of 1987, provides:
“In the case of an infant whose father and mother have not married
each other, the right to make an application under this section regarding
the custody of the infant and the right of access thereto of his father or
mother shall extend to the father who is not a guardian of the infant, and
for this purpose references in this section to the father or parent of an
infant shall he construed as including him.”
Thus, the natural father has the right expressly conferred by statute to
apply to be appointed as guardian of his child and an independent right
to apply for orders granting him custody or access. The court hearing any
such application is obliged by law to treat the welfare of the child as the
first and paramount consideration.
A court when considering an application of a natural father to be
appointed as guardian will have regard to all the circumstances of the
relationship which exists between the father and the child. It is well
known that there is a potentially enormous variation in such relationships
ranging from the position of the father of a child conceived as the result
of casual or commercial intercourse or even rape, where the rights might
well be so minimal as practically to be non-existent, to the situation of
a child born as the result of a stable and established relationship and
nurtured from the commencement of his or her life by the father with the
mother in an environment bearing all or almost all of the characteristics
of a family founded on marriage, when the rights would be very extensive
indeed.
Thus, the courts recognise the blood link between a natural father and his
child as an important element which establishes a biological relationship,
but which does not, without more, confer any rights on the natural father.
The strength of that relationship will vary in accordance with the extent
to which the father is or has been actively engaged in the care, nurture,
education and upbringing of the child. The relationship must be judged by
a court in the light of all the circumstances of the case but always subject
to the overriding consideration of the best interests of the child. The law
grants to the natural father a right to apply to the court; the court must
consider the extent of his rights as well as those of the mother and of the
child. Recognising the existence of the biological relationship between the
father and the child, the law grants to the court the power to regulate
and control the scope and ambit of that relationship in an application
for guardianship or custody on the part of the natural father. Thus, a
natural father has no rights of custody in Irish law in the absence of a
court order granting them. For the sake of completeness, it should be said
that it follows that a natural father has no right to determine the place of
residence of his child save as may be granted to him pursuant to a court
order.
It follows that, as a matter of Irish national law, the appellant, having
failed to secure or even apply for an order granting him custody, on
25th July 2009, had no rights of custody in respect of the three children.
This Court would so hold for the purposes of Article 5(a) of the Hague
Convention independently of the effect of Regulation No 2201/2003. It
would accordingly respond to the proceedings brought at the request of
the English Court by saying that the children were not wrongfully removed
from Ireland on 25th July 2009.
The Irish courts, in the interpretation and application of the Hague
Convention, have, as the law stands, declined to recognise as amounting
to rights of custody under the Hague Convention, the “inchoate rights” of
those who are carrying out duties and enjoying privileges of a custodial or
parental character though not yet formally recognised or granted by law.
In the interpretation and application of the Irish law on rights of custody
the courts will, as already stated, do so in the light, so far as possible,
of Article 8 of the European Convention on Human Rights and of any
relevant judgments of the European Court of Human Rights. Both in the
High Court and in argument before the Supreme Court, the respondent
relied on the decision of the European Court of Human Rights in Guichard
v. France (2nd September, 2003) ECHR 56838/00, [2003] ECHR 714. The
Supreme Court has noted that the European Court of Human Rights took
account of the fact that the natural father, in that case, had not made use
of the opportunity provided for by the French Civil Code to share parental
responsibility by making the appropriate application to the guardianship
judge.
It is the view of the Supreme Court that nothing in the jurisprudence
of the European Court of Human Rights suggests that the provisions
of Irish law with regard to the rights of custody of a natural father in
respect of his child are incompatible with the Convention. The Supreme
Court notes, in particular, the recognition by that Court of the legitimacy
of a requirement of national law that effect must have been given
to a claimed right of custody in the form of an order of a court. The
Supreme Court is of the view, in the light of the infinite variation of extra-
marital relationships and consequent relationships with children, that the
requirement for a court order to give legal force to the right of custody of
a natural father is necessary and appropriate and not disproportionate to
the objective of protection of the best interests of the child.
Accordingly, the Supreme Court remains satisfied that the appellant did
not have rights of custody in respect of his children for the purpose of
Article 5 of the Hague Convention on 25th July 2009.
The Supreme Court recognises, however, that the definition of “custody
rights” for the purpose of applications for the return of children on
the basis of the Hague Convention is now contained in Article 2.9 of
Regulation No. 2201/2003, which provides:
”the term ‘rights of custody shall include rights and duties relating to the
care of the person of a child, and in particular the right to determine the
child’s place of residence…” [Emphasis added]
The Supreme Court notes that the wording of the foregoing definition
of ‘rights of custody,’ introduces the words "and duties" but otherwise
does not differ from that contained in Article 5 of the Hague Convention.
Moreover, it also notes that Article 2.11(a) of Regulation No.2201/2003
envisages that a right of custody shall have been “acquired by judgment
or by operation of law or by an agreement having legal effect under the
law of a Member State…” and that this wording follows closely that of
Article 3 of the Hague Convention.
The Supreme Court has taken note of the appellant’s submission that
the provisions of Regulation No 2201/2003, in particular its definition
of ‘rights of custody,’ should, in the light of Article 6 of the Treaty on
European Union, be interpreted so as to conform with the right to respect
for private and family rights in accordance with Article 7 of the Charter of
Fundamental Rights of the European Union. The Supreme Court is of the
view that the rights guaranteed by this Article correspond with the rights
guaranteed by Article 8 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms and that, in accordance with
Article 52.3 of the said Charter, the meaning and scope of those rights are
the same as those laid down by the said Convention
Question referred for preliminary ruling
In these circumstances the Supreme Court submits to the Court of
Justice for a preliminary ruling pursuant to Article 267 of Treaty on the
Functioning of the European Union the question set out in paragraph 44
below.
The Supreme Court is of the view that, for the reasons given in this
decision, the answer to the question should be in the negative: there
does not appear to the Court to be anything in the text of Regulation No
2201/2003 or in Article 7 of the Charter of Fundamental Rights to suggest
that a natural father should be recognised as having custody rights for the
purposes of decisions on wrongful removal in cases of child abduction in
the absence of a judgment of a court (or, if applicable, a provision of law
or by an agreement having legal effect) made in the country of habitual
residence of the children determining such rights.
The question is as follows:
“Does Council Regulation (EC) No 2201/2003 of 27th November 2003 on
the recognition and enforcement of judgments in matrimonial matters
and matters of parental responsibility, repealing Regulation (EC) No
1347/2000, whether interpreted pursuant to Article 7 of the Charter
of Fundamental Rights of the European Union or otherwise, preclude a
Member State from requiring by its law that the father of a child who
is not married to the mother shall have obtained an order of a court of
competent jurisdiction granting him custody in order to qualify as having
“custody rights” which render the removal of that child from its country
of habitual residence wrongful for the purposes of Article 2.11 of that
Regulation?