H (A Minor), In re

The House held that, for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction, a court may in appropriate circumstances be an "institution or any other body" to which "rights of custody" can be attributed. The Convention terms (in particular Articles 3, 5 and 8) should be given a purposive construction. Where proceedings raising custody issues are properly brought before a court, that court may acquire rights relating to the care of the person of the child, including the right to determine the child's place of residence. The relevant time at which the court's jurisdiction is invoked will generally be the service of the application; once invoked the court's jurisdiction will continue unless stayed or otherwise dealt with.

Applying those principles, the House held that the District Court of Carrigaline had rights of custody in respect of H. at the time of her removal from Ireland because a live application for guardianship (which, under Irish law, confers decision-making parity between father and mother) was pending and the court's jurisdiction had been invoked. The removal therefore breached the court's custody rights and the father's application to secure the child's return under the Child Abduction and Custody Act 1985 could properly rely on that breach. The appeal was dismissed.

This case concerned the father’s application for the return of his daughter H. to the Republic of Ireland under the Hague Convention as implemented by the Child Abduction and Custody Act 1985. H. had been born in Ireland; after the parents separated the father initiated Guardianship of Infants Act 1964 proceedings in the District Court of Carrigaline. A consent custody order was made in April 1996 with interim access provisions; a further application by the father for guardianship was pending and listed for hearing. The mother removed H. to England on 23 June 1998 without informing the father. The District Court proceeded in the mother’s absence and later appointed the father guardian and made access orders.

The father applied in England (Family Division) for return of the child under the Hague Convention. Hughes J rejected the father's argument that either he personally or the Irish District Court had "rights of custody" at the time of removal; the father's application to the English High Court was dismissed but leave to appeal was granted. The Court of Appeal allowed the appeal and ordered return. The mother appealed to the House of Lords.

Nature of the claim: An application under the Child Abduction and Custody Act 1985 for the return of a child removed to England, relying on alleged breach of "rights of custody" under the Hague Convention.

Issues framed: (i) whether a court can be treated as an "institution or any other body" possessing "rights of custody" within Article 3 of the Hague Convention; (ii) whether the District Court of Carrigaline in fact had such rights on the facts; (iii) whether the removal breached any such rights; and (iv) whether a person who lacks his own custody rights may rely on the breach of custody rights possessed by another (including a court).

Reasoning and conclusion: The House approached the Convention purposively, noting that Articles 5 and 8 use wide language and include rights relating to the care of the person and the right to determine the child's residence. The House surveyed prior authorities (including C. v. C., B v. B., Thomson v. Thomson and relevant foreign decisions) and concluded that a court can be an "institution or other body" under the Convention where proceedings invoking custody issues have been validly brought. The appropriate date for recognising that the court's jurisdiction has been invoked is generally the service of the application; the court’s jurisdiction will persist unless stayed. Applying Irish statutory law, once an unmarried father is appointed guardian he and the mother have equal rights in relation to custody; the pending guardianship application therefore meant the District Court had custody rights which were being exercised. Finally, the House held that the father who had invoked those proceedings could rely on the breach of the court’s custody rights in the English proceedings. For these reasons the House dismissed the appeal and affirmed the Court of Appeal order for return.

Appeal dismissed. The House held that (a) a court can be an "institution or any other body" capable of holding "rights of custody" under the Hague Convention where custody issues have been validly raised before it; (b) the court's jurisdiction will generally be invoked on service of the application and will subsist until disposed of or stayed; (c) on the facts the District Court of Carrigaline had rights of custody in respect of H. when she was removed because a guardianship application was pending under Irish law which would have given the father equal decision-making rights; and (d) the father could rely on the breach of those rights to seek the child's return under the Child Abduction and Custody Act 1985.

District Court of Carrigaline (Guardianship of Infants Act 1964 proceedings: custody order 11 April 1996; hearing and order appointing father guardian 23 July 1998); application in England to Family Division (Hughes J) — substantive hearing 4–5 August 1999; Hughes J dismissed father's return application but granted leave to appeal to the Court of Appeal; Court of Appeal (Morritt, Thorpe and Chadwick L.JJ.) allowed the appeal by judgment 11 November 1999 and ordered return; appeal to the House of Lords ([2000] UKHL 6) — appeal dismissed on 14 December 1999 (order) with reasons given 3 February 2000.