The removal of a child by a parent to another Member State of the European Union is wrongful only if it is in breach of custody rights granted by national law.
National legislation under which the acquisition of rights of custody by a father who is not married to the mother of the child is dependent on the father obtaining a court judgment and is not in breach of the right to respect for private and family life protected by the Charter of Fundamental Rights of the EU.
The European Court of Justice has ruled in October 2010 in the McB case that the removal of a child by its mother to the UK without the knowledge of its natural father is not wrongful under the 1980 Hague Convention and Regulation No 2201/2003, even though the father lived with his child, and with the child’s mother though not married to her, and played an active part for 10 years in bringing up that child.
Regulation No 2201/2003 provides for the return of a child to its place of habitual residence where wrongfully removed to another member state . But in this case the removal was not wrongful because the father had not exercised his right under Irish Law to seek a District Court order for custody or access . The father could not apply for such an order after the mother left because he could not serve a custody summons on her.
The father claimed that his European Convention of Human Rights (“ECHR”) right to family life was breached by the requirement that he had to have applied for a custody order before the mother left Ireland. The European Court of Justice held that “such a removal represents the legitimate exercise, by the mother with custody of the child, of her own right of freedom of movement, established in Article 20(2)(a) TFEU and Article 21(1) TFEU, and of her right to determine the child’s place of residence, and that does not deprive the natural father of the possibility of exercising his right to submit an application to obtain rights of custody thereafter in respect of that child or rights of access to that child.”
The same situation will arise for grandparent’s right of access to their grandchildren, i.e. unless they have obtained an access order under section 11b of the Guardianship of Infants Act 1964. Natural Father’s and Grandparents are now under increased pressure to “go legal” and apply to the District Court for custody and access orders before the mother leaves the Country with the child . It means that without a court order, long standing practice over 10 years or more, or understandings between the parties are not sufficient to seek return of a child taken out of the country in breach of long practice or “understanding”
This decision by the European Court of Justice arose from a referral by the Irish Supreme Court. It demonstrates how, since the passing of the Lisbon Treaty incorporating the ECHR into EU law ,the European Court of Justice , rather that the European Court of Human Rights , now deals with such major social issues of balancing the ECHR right to family against the EU Right to Free Movement of Persons.
21 January 2011