17 November 1999
Re H (abduction: custody rights)
Court of Appeal (Lord Justice Morritt, Lord Justice Thorpe and Lord Justice Chadwick) 11 November 1999
AN APPLICATION in a foreign court by the father of a child, which required the court to adjudicate on the custody of the child although the father was not himself seeking custody, and on his application for guardianship, was sufficient to vest rights of custody in that court within the terms of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction 1980.
The Court of Appeal allowed the appeal of the child's father against the dismissal of a summons issued under the Child Abduction and Custody Act 1985, claiming that the mother had wrongfully removed their child from the Irish Republic within the meaning of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction 1980.
The parents of the child, who was born on 3 April 1992, were Irish and unmarried. They separated in 1995, after which the father had irregular contact by agreement. On 14 March 1996 he commenced proceedings for access in the District Court of Carrigaline, under section 11 of the Guardianship of Infants Act 1964.
The court gave custody of the child to the mother, and made an interim order granting access to the father. Difficulties between the parents led to a further application by the father seeking the court's directions "regarding the custody of the infant and the right of access thereto of the applicant . . . to wit guardianship and access".
Before that application was heard, the mother took the child to England. The father eventually traced the mother but was unable to agree arrangements for contact. He thereafter issued a summons in the Family Division under the Child Abduction and Custody Act 1985, which, by section 1, gave the force of law in the United Kingdom to the Hague Convention on the Civil Aspects of International Child Abduction 1980, contending that the mother's removal of the child was wrongful within within the meaning of Article 3 of the Convention.
Article 3 provided that the removal or retention of a child was to be considered wrongful if it was
in breach of rights of custody attributed to a person, an institution or other body . …