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Child Abduction and Inchoate Rights

Marie Crawford, barrister of Becket Chambers, considers one of the most significant developments in relation to child abduction cases in the last thirty years.

Marie Crawford, barrister, Becket Chambers

Marie Crawford, barrister, Becket Chambers

There was no fanfare of publicity to announce a recent radical change in the law relating to child abduction and the Hague Convention. Consequently it may, understandably, have escaped the attention of practitioners. However, the case of Re K (A child) (Northern Ireland) (2014) UKSC 29 has heralded, what some have described as, the biggest change in the law relating to abduction and so called 'inchoate rights' and 'rights of custody' in over 30 years, indeed since the Convention's adoption in 1980.

In this case the Supreme Court was required to consider this very difficult and confusing area of the law on abduction. Lady Hale gave the leading judgment. Those likely to be most affected by the decision, although not concerned in the case itself, are unmarried fathers without parental responsibility.

For the Hague Convention to apply and for applicants to be able to avail themselves of the heavyweight powers that accompany it – such as mandatory return if the application is made within 12 months of the wrongful removal (if made after 12 months it is discretionary) – it has to be shown that there is a 'wrongful removal' as defined in the Convention. That is where many applications may founder.

Article 3 of the Convention (and now Brussels II Revised Regulation) provides that a removal is 'wrongful' only if it breaches 'custody rights'. So, what does this mean? Unfortunately, the Courts of Appeal in England and Wales and Northern Ireland have had different ideas about this and it was left to Lady Hale and her colleagues in the Supreme Court to resolve them. It may seem strange that the meaning of a concept so central to the implementation of the Convention would not have been addressed conclusively until now. However, the good news is that it has now finally been resolved.

The bad news for unmarried fathers without parental responsibility is that they can no longer present an argument that they come under the Convention in what are called 'inchoate rights cases'. (If the father has PR, he will have 'custody rights'.) 'Inchoate rights cases' are those where it is argued that by having contact with a child and/or having a parental role toward that child (and in some cases as a result of having the locus to make an application at court in respect of that child), the applicant has sufficient 'custody rights' to be afforded the protection of the Convention and thus procure the return of abducted children.

The conclusion reached by the court is that the following criteria must be satisfied by applicants who claim that they have 'rights of custody' to which Article 3 of the Convention will apply:

  1. 'They must be undertaking the responsibilities, and thus enjoying the concomitant rights and powers entailed in the primary care of the child'. This applies even if the parent does not have PR.
  2. '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 shall be brought up.' So not sharing care with another person who has PR.
  3. 'That person or persons must have either have abandoned the child or delegated his primary care to them'.
  4. 'There must be some form of legal or official recognition of their position in the country of habitual residence (this is to distinguish those whose care of the child is lawful from those whose care is not lawful e.g. the payments of state child-related benefits or parental maintenance for the child').
  5. 'And 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 best interests, and not by the pre-emptive strike of abduction'.

Unmarried fathers without parental responsibility will not be deemed to have rights of custody unless they establish that their circumstances bring them within one or more of the categories above.

Consequently, an application by an unmarried father without PR is likely to elicit a letter from the ICACU (International Child Abduction Contact Unit) department of the Official Solicitor referring to Re K and advising that the argument cannot be run.

England and Wales has been fairly singular in its wider interpretation of 'custody rights' through the 'inchoate rights' case law. There has been very little support for this interpretation in the other member states.

What is most significant, though, in Re K is that whilst the scope of custody rights has been narrowed and refined, the court decided that 'inchoate rights' should remain a potential option, favouring a 'flexible interpretation' as to what amounts to 'custody rights'. They rejected the argument for narrow interpretation (as adopted by most other member states). The Court also decided that each member state is entitled to decide for itself what constitutes 'custody rights' for the purposes of the Convention, so those who are concerned about the sovereignty of UK courts (if indeed anyone is) can rest assured.

'Rights of custody' have long been distinguished from 'rights of access'. The latter, in the context of a removal from the UK is not considered 'so harmful that the child must be instantly returned' and very importantly, would not have the benefit of the mandatory requirement that it must be a UK court that makes the long-term decisions as to the child's future, as would be the case in the former. This means that the country to which the child has been taken could take any such decisions.

However, it is not all doom and gloom for those with only rights of access. Article 21 of the Convention has provisions to enforce contact, even though there will no way of arguing for an immediate return. Let us not forget too, our old friend 'Inherent Jurisdiction' which can still be employed for the benefit of seeking immediate returns in these types of cases, albeit at a much more sedentary pace and with uncertain results.

Perhaps the main lesson for an unmarried father whose name does not appear on the birth certificate of his child is to obtain an order for parental responsibility. Where there has been a relationship breakdown and the mother of the child is not a UK national, he might wish to do so without delay.