Judgment Title: J. McB. -v- L.E.
Neutral Citation:  IESC 48
Supreme Court Record Number: 171/10
High Court Record Number: 2009 42 HLC
Date of Delivery: 07/30/2010
Court: Supreme Court
Composition of Court: Denham J., Fennelly J., Macken J., Finnegan J., O’Donnell J.
Judgment by: Fennelly J.
Status of Judgment: Approved
Appeal No. 171/10
IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964
(AS AMENDED), IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991 (AS AMENDED)AND IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION DONE AT THE HAGUE ON THE 25TH OCTOBER 1980, IN THE MATTER OF COUNCIL REGULATION NO. 2201/2003(EC)
AND IN THE MATTER OF J. McB, E. McB. and J.C. McB., CHILDREN
Decision of the Supreme Court referring a question to the Court of Justice of the European Union for a Preliminary Ruling delivered by Mr. Justice Fennelly on the 30th day of July, 2010.
1. 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”).
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.”
17. 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.
18. 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
19. 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.”
20. 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
21. 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.
22. 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
23. 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.
24. 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.
25. 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.
26. 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.
27. 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
28. 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.
29. 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.
30. 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.”
31. 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.
32. 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.
33. 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.
34. 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.
35. 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.
36. 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,  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.
37. 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.
38. 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.
39. 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]
40. 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.
41. 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
42. 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.
43. 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.
44. 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?