AAA v ASH

Parental responsibility for an unmarried father arises only through the statutory routes available under the Children Act 1989 and the Births and Deaths Registration Act 1953. An invalid birth registration cannot confer parental responsibility where the statutory requirements were not met. Religious marriage, cohabitation, de facto care, estoppel, legitimate expectation and an inaccurate birth certificate cannot enlarge those statutory routes or create inchoate rights of custody on these facts. Under the Hague Convention, domestic rights must first be identified and then assessed autonomously as possible rights of custody. Shared care by unmarried parents is insufficient where the mother alone had the right to determine the child’s residence and had not abandoned care. The statutory distinction between married and unmarried fathers was compatible with Convention rights.

The Hague District Court requested a determination under Article 15 of the Hague Convention as to whether the removal of M from England to the Netherlands was wrongful. M’s unmarried parents had undergone an Islamic ceremony which was not recognised as a valid English marriage. The father alone registered M’s birth and was named on the birth certificate, although the mother had not attended or signed the register. The mother later removed M to the Netherlands without the father’s consent.

The central issue was whether, at the time of removal, the father had parental responsibility or otherwise had rights of custody under English law or the autonomous Hague Convention concepts. The court also considered estoppel, legitimate expectation and Convention rights.

1. The request was answered on the basis that the father had neither parental responsibility nor rights of custody. The father therefore could not establish that the removal was wrongful under Article 3 of the Hague Convention.
2. Under section 4 of the Children Act 1989, an unmarried father could acquire parental responsibility only through the statutory mechanisms. Following the amendment introduced by section 111 of the Adoption and Children Act 2002, one route was registration under section 10 of the Births and Deaths Registration Act 1953. That required the mother and father to make the prescribed joint request and sign the register, or compliance with one of the other prescribed routes.
3. The mother had not attended or signed the register, and no prescribed alternative document had been produced. The father’s name was therefore entered unlawfully. Section 29 of the 1953 Act provided a means of correcting the entry, and the original invalid entry could not itself confer rights which the father could not have obtained lawfully.
4. The Islamic ceremony was a non-marriage, not a void marriage. Section 1 of the Legitimacy Act 1976 therefore did not apply. The father’s religious commitment, cohabitation and registration did not create parental responsibility or rights of custody.
5. The Hague Convention required the court first to identify rights under English law and then to decide whether they amounted to autonomous Convention rights of custody. The father had shared care with the mother, but she had not abandoned care to him and he had no right to determine M’s residence. The limited doctrine of inchoate rights did not extend to these facts.
6. Estoppel and legitimate expectation could identify circumstances relevant to acquiring rights, but could not enlarge the statutory categories or give a registrar jurisdiction to create parental responsibility. The father had made the relevant assumption himself and the registrar had made no representation that he possessed parental responsibility.
7. The distinction between married and unmarried fathers, and the statutory requirement to comply with formalities, did not breach Articles 6, 8, 9, 12 or 14 of the ECHR. The legislation was not incompatible with Convention rights.

The court was minded to make a declaration concerning the father’s name on the birth certificate, with the wording to be drafted by counsel.