The European Court of Justice (ECJ) has ruled that the family rights of an Irish unmarried father who helped rear his children over a ten year period were not breached as a result of the children’s mother bringing them to England.
The ECJ found that 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 sought the return of his children from England where they had been taken without his consent by their mother after their relationship ended. 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 that he therefore did not have rights of custody, and as a result the removal was not “wrongful” under the Hague Convention. The father appealed the matter to the Supreme Court who referred the matter to the European Court of Justice (ECJ) in Luxembourg in order to address a number of legal questions.
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 ECJ 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 ECJ stated that the Charter of Fundamental Rights only applies to the implementation of EU law. 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.
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.
The ECJ judgment in effect means that unmarried fathers, even where heavily involved with their children, have to go to court to claim their rights of custody.
For more information and advice, contact H. Pat Barriscale, Sarah Ryan or Aisling Carr of our Family Law Unit.