European court to decide on fathers’ custody rights

THE Supreme Court has asked the European Court of Justice (ECJ) to decide an issue concerning the custody rights of unmarried fathers in relation to matters of child removal or abduction.

The issue arose in an appeal by a man against the High Court’s rejection of his challenge to his former partner’s removal, a year ago, of their three children to England to live.

The couple had a 10-year relationship and the mother went to England last July with the children, all aged under 10, just weeks after she terminated the relationship.

The Supreme Court yesterday said, while it agreed with the High Court the removal was not unlawful because the man had not applied for custody rights here, it would refer a question to the ECJ.

The ECJ is expected to determine the issue within three months under a special urgent procedure.

The issue relates to the interpretation of the notion of “rights of custody” within the meaning of a November 2003 EC Regulation (the Brussels regulation) on the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility.

The ECJ has to decide whether the Brussels Regulation, as interpreted pursuant to Article 7 of the EU Charter of Fundamental Rights (CFR) or otherwise, precludes a member state requiring an unmarried father to have a court order granting him custody before he can have custody rights rendering the children’s removal wrongful under the regulation.

The Supreme Court said it was its own view the answer to that question should be “No”.

Giving the Supreme Court decision, Mr Justice Niall Fennelly said, as a matter of Irish national law, the father, having failed to secure or even apply for a custody order at the time the children were removed, had no right of custody.

On that basis, the children were not wrongfully removed from Ireland in July 2009.