Referring court and Member State
Ireland, Second Instance, Supreme Court
Summary
An unmarried Irish father sought in the English courts the return of his three children who had been removed from Ireland to England by their British mother. Under Irish law, an unmarried father did not, by operation of law, have rights of custody. The English court, referring to Art 15 of the Hague Abduction Convention, asked the father to obtain a decision from the Irish authorities declaring that the removal of the children was wrongful within the meaning of Art 3 of that Convention. The father petitioned the High Court of Ireland to obtain such a decision, however, the Irish court held that the father had no rights of custody in respect of the children at the time of their removal, and consequently the removal was not wrongful within the meaning of either the Convention or the Brussels IIa Regulation. The father appealed. The Supreme Court upheld the decision on the Convention but felt obliged by EU law to refer the following question to the CJEU: ‘Does the Brussels IIa Regulation, whether interpreted pursuant to Art 7 of the Charter of Fundamental Rights of the European Union (the Charter) 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 Art 2(11) of that Regulation?’ The CJEU said that ‘rights of custody’ is an autonomous concept but that the identity of a person holding such rights (see Art 2(9) and (11)) is entirely dependent on the existence of rights of custody conferred by the relevant national law (i.e. the law of the Member State where the child was habitually resident immediately before the removal or retention). The father, however, submitted that such interpretation of the Regulation could violate his Art 7 of the Charter and Art 8 of the ECHR rights (i.e. right to respect for private and family life) or the rights of the child guaranteed by Art 24 of the Charter. He argued that for the purposes of Brussels IIa, ‘rights of custody’ should be interpreted as meaning that ‘such rights are acquired by a natural father by operation of law in a situation where he and his children have a family life which is the same as that of a family based on marriage’ (so called ‘inchoate rights’). The CJEU held that the fact that, under Irish law, an unmarried father did not automatically acquire custody rights within the meaning of Art 2 of Brussels IIa, did not affect his right to private and family life, as long as he had the right to apply to the national court for an order awarding him custody rights. This interpretation applied also in cases where the father did not apply for custody rights prior to the removal of the child by the mother who, at the time of the removal, was alone the legitimate custody rights holder, and was legitimately exercising her right of freedom of movement and her right to determine the child’s place of residence. Hence, to accept the possibility that an unmarried father has rights of custody under Art 2(11) of Brussels IIa, although no such rights are conferred on him under national law, would be incompatible with the requirements of legal certainty and with the need to protect the rights of the mother. Accordingly, the Regulation must be interpreted as ‘not precluding a Member State from providing by its law that the acquisition of rights of custody by a child’s father, where he is not married to the child’s mother, is dependent on the father’s obtaining a judgment from a national court with jurisdiction awarding such rights to him, on the basis of which the removal of the child by its mother or the retention of that child may be considered wrongful, within the meaning of Article 2(11)’.