McB (J) (applicant/appellant) v E (L) (respondent)
 IESC 48
Denham, Fennelly, Macken, Finnegan, O'Donnell JJ.
Appeal No. 171/10
IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964 (AS AMENDED), IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT 1991 (AS AMENDED)AND IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION DONE AT THE HAGUE ON THE 25TH OCTOBER 1980, IN THE MATTER OF COUNCIL REGULATION NO. 2201/2003(EC) AND IN THE MATTER OF J. McB, E. McB. and J.C. McB., CHILDREN
Family law - European Union law - Preliminary reference - Rights of custody - Wrongful removal - Urgent procedure - Unmarried father - Council Regulation (EC) No. 2201/2003 of 27 November 2003 on the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility
Facts: The Supreme Court submitted a request for a preliminary ruling to the Court of Justice of the European Union. The question for consideration related to the notion of "rights of custody" within the meaning of Council Regulation (EC) No. 2201/2003 of 27 November 2003 on the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility. The Court urged the Court of Justice to deal with the matter by way of the urgent procedure pursuant to Article 104b of the Rules of Procedure of the Court of Justice. A wrongful removal of children was alleged in the proceedings and the parents of the child had co-habited in a non-marital relationship. The issue for consideration was whether the appellant had "rights of custody" in respect of the children on the date of their removal from Ireland. Under Irish law, the unmarried father had no automatic right of guardianship but did have an entitlement to apply to court to be appointed a guardian of his children.
Held by the Supreme Court per Fennelly J. (Denham, Fennelly, Macken, Finnegan, O'Donnell JJ.), in submitting a preliminary ruling to the Court of Justice pursuant to Article 267 TFEU worded as follows: does Council Regulation (EC) No. 2201/2003 of November 2003 on the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No. 1347/2000, whether interpreted pursuant to Article 7 of the Charter of Fundamental Rights of the European Union 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 Article 2.11 of that Regulation? The Supreme Court was of the view that the question should be answered in the negative.
This is an order for reference for preliminary ruling by the Supreme Court pursuant to Article 267 of the Treaty on the Functioning of the European Union. The question relates to the interpretation of the notion of "rights of custody" within the meaning of Council Regulation (EC) No 2201/2003 of 27th November 2003 on the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (hereinafter " Regulation No 2201/2003") and in the Hague Convention of 25 October 1980 on the Civil Aspects Of International Child Abduction (hereinafter "the Hague Convention").
The Court requests the Court of Justice to deal with the case under the urgent procedure pursuant to Article 104b of the Rules of Procedure of the Court of Justice. It is recognised in the 17th recital to Regulation No 2201/2003 that in cases of wrongful removal of a child, which is alleged in the present case, the return of the child should be obtained without delay.
The appellant in the national proceedings is the father and the respondent is the mother of three children born to them between 2000 and 2007 while the parties cohabited in a non-marital relationship.
It is agreed between the parties that Ireland was the country of habitual residence of the children, for the purpose of the Hague Convention, on 25th July 2009 on which date the respondent, without notice to the appellant, removed the children from Ireland to England.
The issue in dispute is whether the appellant had "rights of custody" in respect of the children on the date of their removal from Ireland.
On the 2nd November, 2009 the appellant caused to be issued in the High Court of Justice (Family Division) of England and Wales (hereinafter "the English Court") an originating summons in which he applied to the English Court for an order for the return of the children to Ireland pursuant to the legislation of the United Kingdom giving effect to the Hague Convention and to Regulation No 2201/2003.
The English Court (McFarlane J.), by order dated 20th November, 2009, requested that the appellant, pursuant to Article 15 of the Hague Convention, obtain from the High Court of Ireland a decision or other determination that the removal of the children from Ireland was wrongful within the meaning of Article 3 of the Hague Convention.
On 22nd December 2009, the appellant commenced proceedings in the High Court of Ireland by way of Family Law Special Summons seeking a declaration pursuant to the Irish legislation implementing the Hague Convention and to Article 15 of that Convention that the removal of the children from Ireland in July 2009 had been wrongful both within the meaning of Article 3 of the Hague Convention and of Article 2 of Regulation No 2201/2003. The appellant applied to the High Court in the same action for orders of guardianship and custody in respect of the children, which latter issues have not yet been determined by the Irish courts.
The High Court heard the appellant's application pursuant to the Hague Convention and to Regulation No 2201/2003. By a judgment delivered on 28th April 2010 that court (per MacMenamin J.) determined that the appellant had not enjoyed any rights of custody in respect of the children at the time of their removal from Ireland and that the removal had not, therefore, been wrongful within the meaning of the Hague Convention or Regulation No 2201/2003.
The appellant has appealed to the Supreme Court against the judgment of the High Court. Some of the arguments of the appellant concerning the interpretation of Regulation No 2201/2003 have caused this Court to make the present order for reference. Prior to considering those arguments, it is necessary to give an account of the facts insofar as they are relevant to the question whether the appellant enjoyed "rights of custody" at the date of removal of the children.
Facts: the relationship between the parties
The parties met in 1999 in England. The father, an Irish national, was then aged 24 years. The mother is English and was then 20 years of age. In the following years the parties lived in England, Australia, Northern Ireland and Ireland. They had three children: J, a son, was born in England on 21st December, 2000; E, a daughter, was born in Northern Ireland on 20th November 2002; J.C., a daughter was born in Northern Ireland on the 22nd July, 2007. The respondent had two children from an earlier relationship, one of whom (a boy born in 1998) lived with the parties and treated the appellant as his father but is not the subject of these proceedings.
In November, 2008 the parties came to live in Ireland and found a home near to his family's original home. Until July 2009 they lived in that area. The children attended school locally.
The High Court judge noted that the affidavits sworn by the parties contained a number of accusations and counter accusations. He found that there was a picture of a rather unstable relationship, which had never been settled. The High Court was not required to resolve the conflicts of evidence between the parties. That would be a matter for resolution by the court ultimately found to have jurisdiction to decide substantive matters of custody and access. The function of the High Court was to decide whether the children had been wrongfully removed from Ireland and specifically whether the appellant had rights of custody in Irish law.
Relations between the parties deteriorated in late 2008 and early 2009. Alleging aggressive behaviour on the part of the appellant, the respondent brought the children on a number of occasions to a women's refuge. The appellant left the family home. The respondent commended proceedings in the local District Court seeking a barring order (excluding the appellant from the family home) but did not appear in court to proceed with her application.
After a period of conflict, when they lived apart, the parties were reconciled in early April 2009. They decided to get married and agreed on 10th October 2009 as the date.
The appellant went on a training course in Northern Ireland for ten days early in July 2009. In a telephone conversation at this time, the respondent asked him whether he was marrying her only so as to be able to obtain guardianship of the children. On the appellant's return from Northern Ireland on the 11th July, 2009 he found the family home empty. The respondent had taken the children to the women's refuge. She left a letter addressed to him in which she made accusations which are denied. She also said in that letter: "I would never deprive the kids of you . . . I am...
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