K v K

In an application under the 1980 Hague Abduction Convention, determining whether an unmarried parent has “rights of custody” requires two stages. The court must first ascertain the rights conferred by the law of the state of the children’s habitual residence immediately before removal. It must then apply the Convention’s autonomous international meaning, which is ultimately decisive and must be uniform across Contracting States. On appeal, a carefully reasoned first-instance finding of foreign law based on competing expert evidence will not be disturbed merely because another view is arguable. The court added, obiter, that changing domestic and international attitudes, and automatic parental responsibility under the Children Act 2002, supported treating a registered unmarried father’s rights as rights of custody under Articles 3 and 5.

The parties had lived together in Spain, where their two children were born. The mother removed the children to England, and the father sought their return under the 1980 Hague Abduction Convention and Brussels Regulation II bis. The mother initially relied on Article 13, later challenging whether the father had been exercising rights of custody under Article 3.

The High Court directed that the extent of the father’s rights under Spanish law be determined as a preliminary issue. Sir Mark Potter found, on competing expert evidence, that Spanish public policy would prevent application of English law depriving the father of relevant rights. The appeal concerned whether that foreign-law finding was open to challenge and whether the ultimate question had to be determined under the Convention’s autonomous international law.

Appeal dismissed. The application was granted.

1. Two-stage inquiry. The determination of “rights of custody” under Articles 3 and 5 of the 1980 Hague Abduction Convention requires consideration first of the domestic law of the state of habitual residence immediately before removal, followed by the autonomous international law of the Convention. The latter is the ultimate and decisive question. The same Convention meaning must apply across Contracting States. This approach was supported by Hunter v Murrow [2005] 2 FLR 1119, Re H (Abduction: Acquiescence) [1998] AC 72 and R v Secretary of State for the Home Department, ex p Adan [2001] 2 AC 477.
2. Foreign-law finding. The President had undertaken a full review of Spanish law and the competing evidence of two authoritative experts. He preferred one expert and explained why. His conclusion that Spanish public policy would reject the relevant application of English law was a finding properly open to him and was not susceptible to challenge on appeal merely because another view could be advanced.
3. Earlier authority and changing law. Re JB (Child Abduction) (Rights of Custody: Spain) [2004] 1 FLR 796 and Re C (Child Abduction) (Unmarried Father: Custody Rights) [2003] 1 WLR 493 did not determine the autonomous Convention question. The Court also rejected reliance on B v United Kingdom [2000] 1 FLR 1 as preventing the President’s conclusion.
4. Obiter guidance. The Court considered that international law had moved significantly since the 2003 decisions. In the circumstances of a 2008 removal, an unmarried father registered on the birth certificate, and consequently possessing automatic parental responsibility under the Children Act 2002, would have rights of custody under Articles 3 and 5. This was expressly stated by way of aside and was intended to assist future cases.

1. Court of Appeal (Civil Division) [2009] EWCA Civ 986: granted the application and dismissed the appeal.
2. High Court of Justice, Family Division: On 19 May 2009, Sir Mark Potter determined as a preliminary issue that Spanish public policy would prevent application of English law in the relevant manner, relying on competing expert evidence.