Cross-border custody dependent on national law, says EU Court

By Leo Gasteen

The European Court of Justice has ruled that the removal of a child by a parent to another Member State is wrongful only if it is in breach of custody rights granted by national law, following the judgement in Case C-400/10J. McB. v L. E.

The ruling comes after an Irish national bought an appeal before the Supreme Court ( Ireland), which was then referred to the Court of Justice, referring to the regulation 2201/2003 and its compatibility with Irish custodial law.

Regulation 2201/2003, concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and matters of parental responsibility, provides that the removal of a child is wrongful where it is in breach of ‘rights of custody acquired by judgement or by operation of law or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal’.

Under Irish law, a natural father, who is not married to the mother, does not automatically have rights of custody. Such rights may be granted to him by an agreement entered into by the parents or by a court judgement. On the other hand, the mother automatically has such rights.

In the light of Article 7 of the Charter of Fundamental Rights of the EU (‘the Charter’) concerning respect for private and family life, precludes 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 his obtaining a judgement from a national court with jurisdiction awarding such rights of custody to him, on the basis of which the removal of the child by its mother may be considered wrongful.

Background

Mr McB., an Irish national, and Ms E., of British nationality, an unmarried couple, lived together for more than 10 years and, from November 2008, lived with their three children, born in 2000, 2002 and 2007, in Ireland.

After the couple’s relationship deteriorated, the mother left the family home with the children on 11 July 2009 to live in a women’s refuge. On 25 July, she took a flight to England, taking with her the three children. In the interim, on 15 July 2009, the father took steps to bring proceedings before an Irish court, in order to obtain rights of custody in respect of his three children. However, since his application had not been served on the mother before her departure, the action had not been validly brought in accordance with Irish procedural law, and the Irish court had therefore not been able to comply.

In November 2009 Mr McB. sought from the appropriate English court an order for the return of his children to Ireland. That court requested that he obtain a decision from the Irish authorities declaring that the removal of the children was wrongful. Accordingly, in December 2009 Mr McB. made an application to the High Court (Ireland) for such a decision. In April 2010, that application was dismissed on the ground that the father had no rights of custody in respect of the children on the date of their removal, and consequently that removal was not ‘wrongful’.

European Court of Justice-  Justice and Application - Full Text