AAA v ASH and Others
| Jurisdiction | England & Wales |
| Judge | SIR CHRISTOPHER SUMNER,Sir Christopher Sumner |
| Judgment Date | 27 March 2009 |
| Neutral Citation | [2009] EWHC 636 (Fam) |
| Court | Family Division |
| Date | 27 March 2009 |
| Docket Number | Case No: FD08P02228 |
[2009] EWHC 636 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Christopher Sumner
Case No: FD08P02228
Mr Setright QC and Mr Gupta for the Applicant
Mr Scott-Manderson QC and Miss Wood for the Respondent
Miss Mountfield for the 1 st Intervener
Miss Fatima for the 2 nd Intervener
Miss Gallagher was Advocate to the Court
Hearing dates: 2 – 5 March 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is a request by The Hague District Court of 6 October 2008. It is brought under Article 15 of The Hague Convention, which came into force pursuant to the Child Abduction and Custody Act 1985. The request was addressed to the Central Authority in the UK which was to submit:
“a decision or other determination, which establishes that the removal was wrongful within the meaning of Article 3 of the Convention from the authorities of the United Kingdom, as referred to in Article 15 of the Convention.”
It concerns M, a child born in London on 11 August 2007. His parents are Muslim. The father, A, is a British national, the mother, H, is from The Netherlands. They went through an Islamic wedding 3 days after the mother came to England in August 2006. On 31 March 2008 the mother, without notice to the father, took M to The Netherlands where they have both remained.
The father started Hague Convention proceedings in June 2008 in The Netherlands. It led to the present request. The issue it raises is whether the father had, in March 2008, “rights of custody” as defined under the Convention, an essential prerequisite to his Hague Convention application. If he did, the removal was wrongful under the Convention.
The legal difficulties that resulted have led to a delay of 6 months before determination. They have involved the appointment of an Advocate to the Court and representation on behalf of the Registrar General of Births and Deaths and the Secretary of State for Justice as Interveners. The hearing, with evidence and a reading day, lasted 4 days, with numerous authorities before the court. Even then argument was not concluded, with further submissions in writing being forwarded a week later. I have endeavoured to answer those which are essential, whilst mindful that this will not be comprehensive.
The result is that, a year after M was removed and 9 months after Hague Convention proceedings started in The Netherlands, a date for a final hearing has not been fixed. It awaits an answer to the request. A review of the delay on behalf of the father has not shown any obvious lessons to be learned. It is the problem of advocates advancing a full range of arguments and the difficulty for the court in predetermining points before they are fully addressed in what are bound to be complex situations. I am fortunate to have had experienced counsel to address me.
The background
The Applicant father is 36 years old. He is a college lecturer living in East London. The Defendant mother is 27 years old. She lives at an address which has not been disclosed in The Netherlands where she was born and brought up. She is a convert to Islam. The parties met through the internet.
The father had been previously married to S by way of a Muslim wedding. They had 2 sons, H and SA, born in May 2001 and January 2004. They live with their mother. There have been proceedings concerning the father's contact.
The mother came to England on 21 August 2006. On 24 August she met the father and went through an Islamic ceremony of marriage (Nikah) with him at a mosque. They both knew it was not recognised as a valid marriage under English law. The father subsequently divorced S by pronouncing a talaq.
M was born on 11 August 2007. On 15 August 2007 the father registered M's birth and he is named as the father on the birth certificate. The mother was not present. It will be necessary to consider both the ceremony of marriage and the registration in due course to determine their effect.
The parties cohabited in East London. In March 2008, without the father's knowledge or approval, the mother took M to the Netherlands where they have remained. There was a subsequent e-mail communication between them. The mother would not return with M.
On 27 June 2008 the father applied to the Central Authority in the UK for the return of M under the Hague Convention. There were hearings in The Hague District Court leading to the request of 6 October 2008. In the course of those proceedings the mother denied that the father had rights of custody in respect of M. The father in answer relied on the fact that his name appeared on M's birth certificate. He also claimed that he had rights of custody pursuant to s.1 of the Legitimacy Act 1976. The mother said that the father's name should not have appeared on the birth certificate and denied his claim. It is as a result of those rival contentions that the present request was made.
Representation
Mr Setright QC with Mr Gupta appeared on behalf of the father, and Mr Scott-Manderson QC with Miss Wood appeared for the mother. The Registrar General was represented by Miss Mountfield and the Secretary of State for Justice by Miss Fatima, both parties appearing as Interveners. Miss Gallagher was Advocate to the Court.
The issues
In addition to the issue of rights of custody, the mother seeks rectification of M's birth certificate. It may be helpful at this stage to list the route by which it is said the father had parental responsibility or otherwise acquired rights of custody. There is also a claim by the father that he had inchoate rights of custody in the particular circumstances which arose here. It is common ground that if parental responsibility or inchoate rights of custody are established, then the father has rights of custody within the Hague Convention.
The mother's position has been clear from the beginning of proceedings in The Netherlands. The father does not have parental responsibility. There were means by which he could have sought to acquire it, but not by registering M's birth in the manner that he did. He did not acquire rights of custody whether by this or any other means.
In his later written submissions, Mr Setright raises the question whether inchoate rights should be considered within domestic law or within the autonomous jurisdiction of the Hague Convention. I am satisfied that firstly I have to determine the father's rights in English law. If they do not include parental responsibility, that may not be a complete answer. There could be instances where an unmarried father had rights of custody, whether inchoate or otherwise, without having parental responsibility. This is because of the international aspect and autonomous nature of the Hague Convention.
The list is as follows:
i) The father's name appears on M's birth certificate as the father. That gives him parental responsibility. Whether that should have happened does not matter. The mother took no steps to correct it. It remains a valid application by the father of which the birth certificate is evidence.
ii) The Muslim marriage, the parent's belief in it, the cohabitation, and the birth certificate with the father named are, with other factors, capable of giving rise to rights of custody. Alternatively the mother should not be permitted to resile from her acceptance of those matters and the rights which arise from them.
iii) The state led the father to believe he had acquired parental authority. It would be unfair and perverse to permit it now to resile from that.
iv) The facts looked at cumulatively come within the well recognised concept of inchoate rights of custody as presently defined. Alternatively inchoate rights, as a flexible concept, is well able to encompass those facts.
v) The father and M's human rights, under Article 8 of the European Convention on Human Rights (“ECHR”) and other Articles, require a purposive construction. This must lead to the father being granted rights of custody to meet both his and M's rights to respect for their family life.
vi) Finally if a declaration is made against the father on the basis that he does not have parental responsibility under s. 4 of the Children Act 1989 and/or s.10 of The Births and Deaths Registration Act 1953 (“BDRA”), or he cannot otherwise claim rights of custody under the Hague Convention, those sections should be declared to violate the father's and M's Convention rights and are therefore incompatible with the Convention.
Before coming to my conclusions on each of these interesting points, it will be helpful to have in mind both the legal frame work and my findings of fact set out. I shall therefore set out:
• The essential provisions of the Hague Convention in relation to its description of rights of custody and the jurisdiction for making requests as here.
• The circumstances in which parental authority arises in domestic law under the Children Act 1989, and the BDRA.
• The position of children of void marriages under the Legitimacy Act.
• My findings on the relevant facts here.
• The court's approach to deciding rights of custody.
The Hague Convention
It covers the position when a child is taken unlawfully by a parent from one Convention country to another without the consent of the other parent. An application can be brought provided that, at the time of removal, the child was habitually resident in the first Convention country (as is accepted)...
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