In the matter of the Child Abduction and Enforcement of Custody Orders Act 1991.
And in the matter of H.I. (a minor).
H.I. (plaintiff) v M.G. (defendant).
Family Law - Child abduction - Whether a wrongful removal of child - Rights of custody - Plaintiff having no established rights of custody - Custody proceedings pending in the courts of the State of New York - Proceedings interrupted by removal of child - Plaintiff having inchoate rights of custody which would crystallise into established rights - Whether plaintiff having rights of custody within the meaning of the Convention - Convention on the Civil Aspects of International Child Abduction, article 3.
Family Law - Child abduction - Whether a wrongful removal of child - Rights of custody - Custody proceedings pending in the courts of Sate of New York - Whether rights of custody vested in the courts of the State of New York - Convention on the Civil Aspects of International Child Abduction, article 3.
Before the High Court (Miss Justice Laffoy); judgment delivered 5 November 1998.
Where a person did not have rights of custody to a child which were propounded by law or conferred by a court order, he might still have rights of custody within the meaning of the Convention on the Civil Aspects of International Child Abduction (the Hague Convention) where he had inchoate rights which would inevitably crystallise into established rights under the law of the requesting State.
Miss Justice Laffoy so held in ruling on a preliminary issue as to whether the plaintiff had a good cause of action pursuant to the Hague Convention.
Maire Whelan BL for the plaintiff; Carmel Stewart BL for the defendant.
Miss Justice Laffoy said that the plaintiff was an Egyptian national who had met the defendant in New York, where she was an illegal alien. Her home was in Ireland. The defendant and the plaintiff went through a ceremony of marriage under Islamic law in New York in 1991, but this marriage was not recognised by either the State of New York or by the USA. The defendant gave birth to a son, H.I. The defendant had said on affidavit that it was always her intention to register her son with her surname but the plaintiff, without her consent, proceeded to register him with his surname. She acknowledged however that the plaintiff was the natural father of her son, who was always known as S.
S was a citizen of the United States and lived in the State of New York with his parents for the first five and a half years of his life, i.e. until February 1997. The defendant left the plaintiff at the end of 1996, taking her son with her. On 3 February 1997 she returned to Ireland with S.
In December 1996 a protection order was made in favour of the defendant by the Family Court of the State of New York. She was also granted temporary custody of S. In January 1997 she instituted proceedings in the same court, seeking custody of S. In those proceedings the plaintiff was named as the putative father of S. The plaintiff also instituted proceedings seeking visitation rights. On 26 February 1997 an order was made directing that S be produced in court in New York on 26 March 1997.
These proceedings were commenced by special summons on 20 March 1997, seeking an order pursuant to Article 12 of the Convention on the Civil Aspects of International Child Abduction (the Hague Convention) directing the return of S to the jurisdiction of the courts of the State of New York. The matter for judgment was the preliminary issue as to whether the plaintiff had any cause of action under the Convention.
The defendant's contention that the plaintiff did not have a cause of action was based on the assertion that S was not removed from New York "in breach of rights of custody." Article 3 of the Convention provides "The removal or retention of a child is to be considered wrongful where: (a) It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention, those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State."
"Rights of custody" are defined in article 5 as including rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence and "rights of access"["]
are defined in the same article as including 'the right to take a child for a period of time to a place other than the child's habitual residence."
Miss Justice Laffoy said that the issue to be determined was whether the removal of S from the State of New York on 3 February, 1997 was "in breach of rights of custody attributed to a person, an institution or any other body" under the law of the State of New York.
Three affidavits had been filed setting out the law of the State of New York as to the status of a person in the plaintiff's position as regards custody of and access to his child, i.e. the legal position of a natural father in relation to custody of a child where paternity is not disputed and was in fact acknowledged by the mother and the natural father, and where they had never been married in a manner recognised by law. However, the affidavits disclosed conflict as to the legal position of the plaintiff under the law of the State of New York.
In the affidavit filed on behalf of the plaintiff, it was stated that while New York State would not recognise their marriage, it would recognise the relationship established by the parties and their verbal agreement concerning custody of S had legal effect and created "rights of custody" under the Hague Convention. The sole consideration in determining the issue of custody was the best interests of the child and neither parent had a prima facie right to custody: section 240 of the Domestic Relations Law. She concluded that the plaintiff had a clear right "to apply for custody of his child."
In an affidavit filed on behalf of the defendant, it was stated that custody or visitation could not be granted to an unmarried father without a prior adjudication of paternity as that would violate the principle that a parent may not be deprived of custody by a non-parent absent a showing of unfitness. Under New York law the plaintiff was a legal stranger to S. No rights of custody could arise under the common law as New York law did not recognise the private domestic arrangements of a couple and such rights could only arise as a result of statutory provisions.
The plaintiff submitted that the court had jurisdiction to resolve the conflict of evidence of the law of the State of New York: McNamara v Owners of the SS "Hatteras" [1933] IR 675. He also submitted that the evidence did not show that a declaration of paternity was a condition precedent to the existence of rights of custody in a natural father who was not married to the child's mother.
The plaintiff further submitted that he had "rights of custody" within the meaning of the Hague Convention, even if he did not have such rights under New York law. The phrase had to be construed in the widest possible sense so as to give effect to the objective of the Convention which was to spare children who were already suffering the effects of a breakdown of their parents' relationship further disruption: Re B (a minor) (abduction) [1994] 2 FLR 249, per Waite LJ. This approach meant that the concept of "rights" was not confined to rights propounded by law or conferred by court order, but could extend to persons who before the child's abduction were exercising functions of a parental or custodial nature without the benefit of any court order or official custodial status. Given that the defendant acknowledged that the plaintiff was S's father and that he had assumed obligations and enjoyed privileges of a custodial or parental character, he had inchoate rights which were likely to be upheld in the interests of S.
The third submission of the plaintiff was that the removal of S from the Sate of New York was in breach of custody rights vested in the Family Court of the State of New York: Re H (a minor) (abduction) [1990] 2 FLR 439; B v B (abduction) [1993] 1 FLR 238; The Ontario Court v M and M (abduction: Children's Objections) [1997] 1 FLR 475. In B v B (abduction) the Court of Appeal had held that removal of a child from Canada while divorce proceedings were in being there was unlawful in that the court itself had a right of custody in the sense that it had the right to determine the child's place of residence.
The defendant conceded that the establishment of paternity by the plaintiff would be a mere formality but it was still a necessary technical proof before rights of custody could be conferred by a court in the State of New York on the natural father of a non-marital child.
The defendant further submitted that the approach of the Court of Appeal in Re B (a minor) (abduction) was at variance with the decision of the House of Lords in Re J (a minor) (abduction: custody rights) [1990] 2 AC 562 where the court distinguished between the legal rights of custody and the de facto joint custody of both parents. Since the relevant statutory law gave the mother alone the custody and guardianship of the child, and no order of a court to the contrary had been obtained by the father before the removal took place, the father had not custody rights relating to the child of which the removal could be a breach. This approach had been considered by Waite LJ in Re B (a minor) (abduction). The plaintiff had argued that Re J (a minor) (abduction: custody rights) had been distinguished in Re B (a minor) (abduction).
Thirdly, the defendant had submitted that: Re H (a minor) (abduction) and B v B (abduction) were distinguishable in that in those cases, the court in the requesting state had made an order that the child was not to be removed from the jurisdiction without the leave of the court. In this case, the defendant had sole custody under the temporary custody order and she was not inhibited in any way from changing S's place of residence.
Miss Justice Laffoy said that on the basis of the expert evidence she could not be satisfied that the plaintiff had established that he had, on the date of the removal, any established rights of custody in respect of S under that law. It seemed that the correct position was that the mother of a non-marital child had sole right of custody of the child until such time as paternity was established by the making of an order of paternity or the approval by the court of a paternity agreement or compromise.
However, in applying the Hague Convention, further considerations arose. The objectives of the Convention had been set out by Waite LJ in Re B (a minor) (abduction) [1994] 2 FLR 249. The significant factor in this case was that both parties had acknowledged the plaintiff's paternity of S by invoking the jurisdiction of the court of S's habitual residence. It was inconceivable that, had the proceedings not been interrupted by the defendant leaving the jurisdiction of the State of New York, approval would not have been given to the acknowledgement of paternity. Both parents would then have had a prima facie right to custody. The temporary custody order, which was made on foot of an ex parte application, did not affect that conclusion. The plaintiff was not merely relying on the de facto custody of S jointly with the defendant for the first five and a half years of S's life. In this case, the inchoate rights of the plaintiff to custody would almost inevitably have crystallised into established rights by court approval of the acknowledgements of paternity and were "rights of custody" within the meaning of Article 3 of the Hague Convention. Accordingly, the plaintiff was entitled to invoke the Hague Convention and pursue his claim thereunder.
While it was not necessary to determine whether the removal was in breach of rights of custody attributable to an institution, viz., the Family Court of the State of New York, Miss Justice Laffoy said that in her view it was not since at the date of the removal the court had made only an order of temporary custody and had not imposed any restriction whatever on the defendant relocating outside the State of New York with S. Moreover, there was no evidence as to the attitude of the New York court and since the plaintiff's application had not come through the Central Authority of the USA, this was of particular significance.
Finally, Miss Justice Laffoy said that there was delay in this case which did not go to the determination of the preliminary issue, but might be of importance in the determination of the plaintiff's claim under Article 12.
Solicitors: Law Centre (Tallaght) for the plaintiff; Law Centre (Mount Street) for the defendant.
Siobhan Stack Barrister
[This decision is under appeal.]
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