YG v NM (Article 15 declaration; wrongful removal)

Under Articles 3 and 5 of the Hague Convention on the civil aspects of international child abduction, a prohibited steps order may attribute rights of custody to an unmarried father and to the court, even where the father lacks parental responsibility. A very young child may be habitually resident in the State of birth where the surrounding circumstances support that conclusion and no other habitual residence is possible. Removal is wrongful if it breaches rights of custody that were actually being exercised. The remover’s knowledge, intention or subjective belief is immaterial to the Article 3 question.

The father applied under Article 15 of the Hague Convention on the civil aspects of international child abduction for a declaration that the mother had wrongfully removed their son from England and Wales to Hungary on 13 October 2016. The child had been born in London on 29 September 2016. The father lacked parental responsibility, but had obtained a prohibited steps order on 12 October 2016 preventing removal without his consent or the court’s consent. The issues were whether rights of custody existed, whether the child was habitually resident in England and Wales immediately before removal, and whether those rights were actually being exercised.

The court granted the father’s application and made the requested Article 15 declaration.

1. Rights of custody. Article 5 of the Hague Convention on the civil aspects of international child abduction includes the right to determine a child’s place of residence. The prohibited steps order attributed such rights to the father because removal required his prior consent. It also attributed rights of custody to the Single Family Court, which had asserted its power to prevent removal. The father’s lack of parental responsibility did not prevent that result.
2. Habitual residence. Although the child was only just over two weeks old, he had been born in England and Wales and had never left it. Both parents were habitually resident there. The law favoured a connecting factor for jurisdiction, and it was appropriate to find that the child was habitually resident in England and Wales immediately before removal.
3. Actual exercise. The father had seen the child several times, had applied for the prohibited steps order, and had actively attempted to serve it. The court had made the order, provided for continuing proceedings and fixed a further hearing. Both the father and the court were therefore actually and actively exercising rights of custody within Article 3(b).
4. Subjective belief. The mother might reasonably have believed that she could remove the child because she did not know of the order and the father lacked parental responsibility. That did not affect the analysis. Article 3 is expressed objectively: removal is wrongful where it is in breach of rights of custody, regardless of the remover’s knowledge or intention.

It was declared that the removal of the child from England and Wales on 13 October 2016 was wrongful within Article 3.