A & B v C (Rev 1)

Article 21 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 is not confined to parents or holders of parental responsibility. It may be invoked by another person where it is important for the child to maintain a personal relationship with that person, including a grandparent or other family member. The court should manage related applications proportionately and may consolidate them where there is no conflict between the applicants.

The maternal grandmother and aunt sought disclosure and rights of access to a child living in England with his father after the death of his mother in Poland. The grandmother relied on testamentary documents granting her custody-related authority. The aunt had participated in the child’s care but had no equivalent formal status.

The central issue was whether the aunt, as a non-parent without rights granted by a court or person with parental responsibility, could apply under Article 21 of the Hague Convention. The court also considered the appropriate management of the two applications.

1. Article 21 applications. The judge concluded that the aunt’s initial objection to jurisdiction was unfounded. The wording of “rights of access” in Article 5(B) of the Hague Convention on the Civil Aspects of International Child Abduction 1980 was materially similar to Article 2.10 of Brussels IIA.
2. Meaning of rights of access. The court applied Valcheva v Babanarakis (Case C-335/17). The CJEU had interpreted the concept autonomously, taking account of the wording, scheme and objectives of Council Regulation No 2201/2003 and relevant international law. The concept was broad and was not limited by the identity of the person seeking access.
3. Article 21 could therefore be used by persons other than parents where it was important for the child to maintain a personal relationship with them. This included grandparents and could include other persons with an established status in the child’s life. The grandmother’s formal custody-related documents independently supported her application.
4. The judge recognised the risk that an unrestricted interpretation could permit applications by a wide range of persons, such as family friends or teachers. That consideration did not justify excluding the aunt in light of the CJEU’s interpretation. The reference to Re K (a child) (Northern Ireland) illustrated the possibility of inchoate custody rights arising in appropriate circumstances.
5. There was no conflict between the grandmother and aunt. Their applications were accordingly consolidated. One firm of solicitors and one barrister were directed to act for them, subject to reconsideration if a conflict later arose. The question of the future venue was left for further submissions.

First-instance decision. The judgment records earlier hearings on 8 June and 15 June 2018, but no appellate history.