EU court rules father has no custody rights

Rights of Irish unmarried father not breached, rules European court

THE FAMILY rights of an Irish unmarried father who helped rear his children over a 10-year period were not breached by their mother bringing them to England, the European Court of Justice has ruled.

The removal of the children to another state only breached his right of custody if such rights existed by agreement with the mother or had been granted by a national court.

The case arose from an application under the Hague Convention on Child Abduction, whereby the father, known as Mr McB, sought the return of his children from England, where they had been taken without his consent by their mother, Ms E, after their relationship broke up. He sought rights of custody in the District Court, but because the mother had left the jurisdiction the application had not been served on her and could not proceed.

The High Court ruled he therefore did not have rights of custody, and as a result the removal was not “wrongful” under the Hague Convention. He appealed to the Supreme Court. The case then went to Europe following the referral of a question by the Supreme Court to the European Court of Justice in Luxembourg.

This is the EU court, where matters of EU law are examined, as opposed to the Council of Europe’s European Court of Human Rights, based in Strasbourg, which oversees the observation of the European Convention on Human Rights.

The Supreme Court asked the European Court of Justice whether an EU regulation on matters of parental responsibility precluded it from deciding that the custody rights of an unmarried father required him to obtain them from a court. It also asked whether this was compatible with the EU’s Charter of Fundamental Rights, which is appended to the Lisbon Treaty, and which refers to family rights.

The EU court ruled that the regulation on parental rights has to mean it is the domestic law of the member state on rights of custody that applies when deciding whether a child has been wrongfully removed from a particular jurisdiction. The Charter of Fundamental Rights only applies to the implementation of EU law, it said. It does not apply to national law. Insofar as the charter contains rights corresponding to those under the European Convention on Human Rights, which it does in relation to family rights, their scope and meaning should be the same as the equivalent right under the ECHR.

In this regard, it pointed out that the European Court of Human Rights in Strasbourg had already ruled that it was permissible for member states to grant sole custody of a child to its unmarried mother, provided the natural father could ask the national court for custody rights.

The Luxembourg Court also said that, in moving to England with the children, the mother was exercising her right to free movement and her right to determine their place of residence. Commenting on the judgment, European family law expert Geoffrey Shannon said: “This is a very significant judgment. It means unmarried fathers, even where heavily involved with their children, have to go to court to claim their rights of custody. Legislation is now needed in this area.”

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The Irish Examiner 6 October 2010
EU court rules father has no custody rights
Ann Cahill Europe correspondent

The man, known only as Mr J McB, took his battle through the Irish and British courts but finally lost in the European Court of Justice in Luxembourg.

He argued the mother of his children should not have taken the children from their home in Ireland where they had lived together for eight months. He claimed her action breached his right to a private and family life under the EU Charter of Fundamental Rights.

But the court ruled that since an unmarried mother automatically has custody rights to her children under Irish law, and since the father had not applied to the courts for custody, she could not be accused of having abducted them.

In July last year the children’s mother, Ms L E, left the family home with their three children, aged 10, 8 and 3 years and moved to a women’s refuge. Two weeks later she took them to her home country, Britain.

In the meantime their father applied to the Irish courts for custody rights. Despite being the children’s biological father, under Irish law he had no automatic custody rights as he was not married to their mother.

The mother and the children left the country before papers could be served on her and the case could not be officially lodged with the court.

The European Court of Justice ruled the mother automatically has custody rights under Irish law and is entitled to move with the children to another country if she wishes.

Mr Justice Nial Fennelly in the Supreme Court, who referred it to the European Court of Justice, said the Irish law and the Constitution accords a special position to the family based on marriage. The blood link between a father and his child was an important element but did not confer any rights on the natural father.