K v N

For a removal to be wrongful under Art 3 of the 1980 Hague Convention, the left-behind parent must have rights under the law of the requesting State and those rights must qualify as autonomous Convention rights of custody.

An application for guardianship, without more, does not necessarily confer such rights. Inchoate rights of custody require legal content in the factual situation, including responsibility for the child’s primary care and some legal or official recognition of that position. An Art 15 request may assist with the domestic-law question, but it cannot determine the autonomous Convention question and will commonly cause delay.

The applicant father sought the summary return of his child to Ireland under the Child Abduction and Custody Act 1985 and the 1980 Hague Convention. The mother accepted that the child had been habitually resident in Ireland but contended that removal was not wrongful because the father had no rights of custody under Art 3.

The court determined that the mother removed the child on 10 February 2021. At that time, the father was unmarried to the mother, had not acquired automatic guardianship, and had only applied to become a guardian. The central issues were what rights he possessed under Irish law and whether those rights amounted to Convention rights of custody.

1. Outcome. The father’s application for summary return was dismissed. The removal was not wrongful under Art 3 of the 1980 Hague Convention.
2. Art 15. Following Hunter v Murrow (Abduction: Rights of Custody), the court distinguished the domestic-law question from the Convention question. The former concerns the rights conferred by the law of the requesting State and may, where appropriate, be addressed through expert evidence or an Art 15 determination. The latter concerns the autonomous Convention meaning of rights of custody and must be determined by the requested court. An Art 15 request solely on the Convention question serves no useful purpose and may cause delay.
3. Domestic rights. Under the Guardianship of Infants Act 1964, the father had no personal rights in respect of the child beyond the right to apply for appointment as guardian under s 6A. He acquired personal guardianship rights only on 12 April 2021, after the removal.
4. The evidence did not safely establish that the Irish court had acquired enforceable rights before removal through the father’s pending application. Irish authority left the relevant date uncertain, and there was no evidence that the notice of application had been lodged before 10 February 2021.
5. Inchoate rights. Applying Re K (Abduction: Inchoate Rights), the father had not undertaken the responsibilities of primary care, the mother alone had the legally recognised right to determine the child’s residence and upbringing, the child had not been abandoned or delegated to the father, and there was no legal or official recognition of the father’s care. The possibility that the Irish courts would have preserved the status quo was insufficient by itself.
6. The court therefore concluded that the father had neither choate nor inchoate rights of custody immediately before removal. The remaining welfare issues were left to be addressed in England and Wales, subject to jurisdictional arguments.