Supreme Court rules on child abduction & de facto custody
De facto or inchoate rights of custody constitute “rights of custody” for the purposes of The Hague Convention on international child abduction, the Supreme Court has held.
The court ordered a boy’s mother to return him to the maternal grandparents in Lithuania who raised him, in In the matter of K (a child) (Northern Ireland) [2014] UKSC 29. The child was born in Lithuania in 2005 and lived there with his grandparents until 2012. He had Skype contact with his mother but believed his grandparents to be his real parents. His mother then ended the power of attorney and temporary rights of guardianship she had granted the grandparents, and took her child back with her to Northern Ireland.
Having been advised that legal proceedings would be “protracted and costly”, the mother seized her son on the street and drove off to the ferry. The grandparents applied under the Hague Convention for his return based on their de facto rights of custody.
The justices held by a majority that the grandparents did enjoy “rights of custody” and that the child should be returned to Lithuania.
Delivering judgment, Lady Hale said: “[The grandmother’s] status had legal content derived from the decisions taken by the competent authorities in the light of the mother’s previous delegation of primary care to her.
“It had not been deprived of all content by the mother’s notice to the authorities (which may or may not have been communicated to the grandmother). Thus to take him out of the country without her consent was in breach of those rights and wrongful in terms both of the Convention and the Regulation.”
Clare Renton, 29 Bedford Row, said: "In a dissenting judgment Lord Wilson expressed the view that this set the bar too low. Regulation 2.9 focused upon the right to determine the child's place of residence). An inferred agreement that the carers should have rights of custody to an extent that the local court would make an order reflecting these rights should be a prerequisite.
"There was no need to widen the scope of the term. Other Hague jurisdictions took the narrow view of the term point resisted in England. This decision confirms that an applicant without inferred agreement to the custody arrangements may pursue an application.”
