Re C (A Child) (Unmarried Father: Custody Rights)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Munby,Mr Justice Munby |
| Judgment Date | 28 October 2002 |
| Neutral Citation | [2002] EWHC 2219 (Fam) |
| Court | Family Division |
| Docket Number | Case No: NE02P01329 |
| Date | 28 October 2002 |
[2002] EWHC 2219 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
NEWCASTLE UPON TYNE DISTRICT REGISTRY
The Law Courts
Quayside
Newcastle Upon Tyne
The Honourable Mr Justice Munby
Case No: NE02P01329
In The Matter Of Callan Brendan Grierson (a Minor)
In The Matter Of The Children Act 1989
In The Matter Of The Supreme Court Act 1981
And In The Matter Of The Child Abduction And Custody Act 1985
Ms Sarah Woolrich (instructed by Dickinson Dees) for the applicant (father)
Mr T M Finch (instructed by Mortons) for the respondent (mother)
Hearing dates: 16 and 25 October 2002
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 judgment was handed down in private on 28 October 2002. The judge hereby gives leave for it to be reported under the title Re C (Child Abduction) (Unmarried Father: Rights of Custody).
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
In this case an unmarried father seeks the return from Ireland of his son. The case raises again the vexed question of whether and in what circumstances an unmarried father who has never obtained parental responsibility in accordance with the provisions of the Children Act 1989 can invoke the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
Ms Woolrich on behalf of the father seeks a declaration of wrongful removal in accordance with article 15 of the Convention and section 8 of the Child Abduction and Custody Act 1985. She submits that the removal was in breach of "rights of custody attributed to a person" – the father – within the meaning of article 3(a), alternatively that it was in breach of "rights of custody attributed to … an institution" – the English court – within the meaning of the same article.
Mr Finch on behalf of the mother denies that the father or the court ever had any such rights of custody. Alternatively, he says, if the father ever had such rights they were not being "actually exercised" at the relevant time within the meaning of article 3(b). Furthermore, he submits, even if persuaded by Ms Woolrich that the removal was wrongful within the meaning of article 3 I should nonetheless in the exercise of discretion refuse to grant the father the relief he seeks.
There is much learning on these matters. The cases to which I have been referred are, in chronological order, In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, Re B (A Minor) (Abduction) [1994] 2 FLR 249, Re O (Child Abduction: Custody Rights) [1997] 2 FLR 702, Re B (Abduction) (Rights of Custody) [1997] 2 FLR 594, In re W (Minors) (Abduction: Father's Rights) [1999] Fam 1, Re J (Abduction: Declaration of Wrongful Removal) [1999] 2 FLR 653, Re C (Abduction: Wrongful Removal) [1999] 2 FLR 859, In re H (A Minor) (Abduction: Rights of Custody) [2000] 2 AC 291 and Re G (Abduction: Rights of Custody) [2002] 2 FLR 703. I must deal with these in due course but first I must summarise the facts so far as they are relevant to the issues I have to decide.
The facts
Every case is different and every case must, of course, be decided in the light of its own particular facts. But, that said, the facts of the present case contain no particularly unusual features. In its essentials this case is typical of many. It is a sobering reflection on the state of our law that it is nonetheless not altogether easy for a lawyer advising someone in the father's position to do so with any great confidence.
C was born on 10 January 1998. Although he was apparently conceived in the Republic of Ireland he was born, and until the events that have given rise to this litigation had always lived, in this country. His parents have never married. Their relationship began in Ireland in about 199They returned to this country in July 1997. From C's birth they lived together as man and wife at a property they jointly owned in Sunderland together with the two children of the family, C and his elder half-brother J. J was born on 23 October 1986 and is the mother's child by a previous relationship. The present proceedings relate only to C.
The father's position is that he enjoyed a full role in C's life and upbringing. The mother disputes it: "That is simply not true." In support of her version she points to a number of matters. For three years – he says it was for only 10 months – the father worked away from home during the week and was only at home for the weekends. She says – he denies it – that when the father was at home he showed little interest in the children or home life and was quite happy for her to take full responsibility for the children and the home: "If I ever asked [him] to help out with the children I would usually be asked to stop bothering him and to get on with things myself." She does not recall the father ever taking C to the nursery. She describes an incident some four weeks before the separation when the father lost his temper with C and so frightened C that he wet himself.
Most of this is hotly disputed by the father. There is also a dispute as to the extent to which the father's own mother was involved in C's care. These are disputes that I am in no position to resolve because I have heard no oral evidence. Indeed the mother did not attend the hearing. But I do not think it matters. Let it be assumed for the sake of argument that the mother's account is correct. That would, no doubt, paint the father in a poor light and reveal him as someone adopting what today would be thought of as a somewhat disengaged and less than satisfactory role both as the parent of his child and as the partner of his child's mother. But the reality is that there are, up and down the land, many fathers, both married and unmarried, who behave in the kind of uncaring – even boorish – way described by the mother. Such a father might be thought to be discharging his responsibilities inappropriately and deficiently; but it could hardly be disputed that he was equally responsible for his child's care. The officious neighbour would not say that he was not equally responsible with the mother for their child's care: she would say that he was not shouldering his share of their joint responsibilities.
Overall, and even on the mother's version of events, the picture is one of a mother and a father sharing the responsibility of caring for their son, even if much of the day to day domestic burden was left to the mother. The father, after all, even on the mother's case, was supporting the family financially. He may have been working away from home during the week, but from the date of C's birth until 2 July 2002 he had no other home than the home he shared with C and the mother. So, even on the mother's account, the picture is one of shared responsibility for care and shared care. But that is all it is, even if the father's account is to be preferred. He is critical in many respects of the mother's lifestyle and domestic capabilities. But there is nothing in his evidence to suggest that the mother ever abandoned her care of C, whether to him or to his mother. Even on his account the picture, as it seems to me, is one of shared responsibility for care and shared care.
The father and the mother separated on 2 July 2002 after an incident involving J. According to the mother the father assaulted J. The father was arrested and after being released on police bail went to live his mother. The mother applied to the Sunderland County Court for non-molestation and occupation orders against the father. On 8 August 2002 the father gave undertakings to the Sunderland County Court that he would not molest J or return to the family home in Sunderland and that he would allow the mother to reside there. On 9 August 2002 the charge in relation to the alleged assault on J was dropped on the father agreeing to be bound over.
Following his departure from the family home the father continued to see C. There is a dispute which I am in no position to resolve at this stage as to both the frequency and the nature of his contact with C. According to the father he initially had unsupervised contact with C every evening for 2 1/2 hours and staying contact every weekend for the whole weekend. This arrangement was changed on 30 July 2002 at the mother's insistence to contact from 9am on Friday until 1pm on Saturday and from 8am to 9pm on Mondays. The mother denies that father ever had staying contact. She says that prior to the change in the arrangements the father usually saw C for a couple of hours each day, including weekends and that this contact was supervised at the father's parents' home. This dispute does not matter for present purposes. On any view the father was having substantial contact with his son.
The father became concerned that the mother might take C away and return with him to her home country Ireland. He instructed solicitors and on 13 August 2002 signed a Form C1 seeking a residence order in relation to C. Under paragraph 6 (the care of the child) he stated that "C … is cared for by his mother."
On 14 August 2002 his solicitors wrote to the mother's solicitor:
"Our client has instructed us to issue a residence application in respect of [C]. Before such an application is issued we would be obliged if you would let us know if your client would consent to a joint residence application, as...
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