Re K (A Child) (Northern Ireland)
| Jurisdiction | Northern Ireland |
| Judge | Lord Clarke,Lord Wilson,Lady Hale,Lord Kerr,Lord Hughes |
| Judgment Date | 15 May 2014 |
| Neutral Citation | [2014] UKSC 29 |
| Date | 2014 |
| Year | 2014 |
| Court | Supreme Court |
[2014] UKSC 29
Lady Hale, Deputy President
Lord Kerr
Lord Clarke
Lord Wilson
Lord Hughes
Appellants (Grandparents)
Denise McBride QC Mary Connolly
(Instructed by Cleaver Fulton Rankin Ltd)
1 st Respondent (Mother)
Henry Toner QC Jill Lindsay BL
(Instructed by X Solicitors)
2 nd Respondent (Child)
Siobhan Keegan QC Louise Murphy
(Instructed by The Official Solicitor to the Court of Judicature of Northern Ireland)
Intervener (Reunite)
Henry Setright QC Edward Devereux Michael Gration Mehvish Chaudhry
(Instructed by Dawson Cornwell)
Heard on 8 April 2014
Lady Hale (with whom Lord Kerr, Lord Clarke and Lord Hughes agree)
The Preamble to the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention") states that its purpose is "to protect children internationally from the harmful effects of their wrongful removal or retention". But under article 3 the taking or keeping of a child is only "wrongful" if it is in breach of "rights of custody". The same applies under the Brussels II Revised Regulation ("the Regulation"), which complements and takes precedence over the Hague Convention as between all but one of the member states of the European Union. So what is meant by "rights of custody"? It might be thought that the meaning of a concept so central to the operation of both instruments would be well settled by now. But this is not even true within the United Kingdom. The Courts of Appeal in England and Wales and in Northern Ireland have taken different views. It therefore falls to this court to resolve the difference. If nothing else, the position should be the same throughout the United Kingdom.
The concept of "rights of custody" would appear to have at least two functions. One is to identify those removals or retentions which are presumptively so harmful to the welfare of a child that the authorities must take swift action to return him to the country from which he has been taken or kept away. Many international removals of children will not be harmful to them at all, for example where their united parents take a well-planned sabbatical in another country or even emigrate permanently. Other international removals may or may not be so harmful. The Convention draws a clear distinction between "rights of custody" and "rights of access". It does not presume that removal or retention in breach of rights of access is so harmful that the child must instantly be returned. Another function of "rights of custody", therefore, is to secure that long term decisions about the child's future are taken in the country where he was habitually resident immediately beforehand and not in the country to which he has been taken.
The issue, therefore, is between two different approaches to the interpretation of the concept. Is it to be interpreted strictly and literally as a reference to rights which are already legally recognised and enforceable? Or is it to be interpreted purposively as a reference to a wider category of what have been termed "inchoate rights", the existence of which would have been legally recognised had the question arisen before the removal or retention in question? The issue is well illustrated by the facts of the present case.
We are concerned with a little boy whom I shall call Karl. He was born in Lithuania on 13 March 2005 and so is now nine years old. His father and mother separated before he was born and his father has played no part in his life. From the time of his birth until his removal from Lithuania in March 2012 he lived with and was cared for by his maternal grandparents. His mother returned to work in the Lithuanian army shortly after his birth. There is an unresolved dispute of fact as to whether she remained based with the family for about a year after Karl's birth. It is however clear that in May 2006 she moved to live and work in Northern Ireland with her then partner, leaving Karl in the sole care of her parents, and that she has lived there ever since. She and that partner had a child together in July 2010. Some time after that they separated and the mother now has another partner.
There is also an unresolved dispute about the level of interest which the mother showed in Karl over the years. Between May 2006 and October 2011, she sent 28 payments to the grandmother totalling some £2,590. She was in contact with her family by telephone and by SKYPE but we do not know how often. The grandmother came to visit her once in Northern Ireland in 2006 but did not bring Karl with her. The mother visited the family once in Lithuania in November 2006 for five days or a week when Karl was 20 months old. Otherwise Karl had not seen her until she returned to Lithuania in February 2012 shortly before his seventh birthday. According to the solicitor working with the Official Solicitor in Northern Ireland, who interviewed Karl a year later, "it was his firm belief that his grandmother was his mother". He was confused as to who the woman he spoke to on the computer (via SKYPE) was. His grandmother's evidence is that he referred to the mother as his "mum from far away".
In February 2012 his mother returned to Lithuania in order to take Karl with her to Northern Ireland, where she now had suitable accommodation, employment and a stable relationship. Her own evidence is that she knew that her parents would not agree to Karl moving to live with her. A friend had told her that her mother was taking preliminary steps to obtain legal custody of the child. A lawyer advised her that legal proceedings between her and her mother would be "very protracted and costly". So she decided to take matters into her own hands.
On 12 March 2012, as the grandmother was walking Karl home from school, the mother and her partner drew up beside them in a van and there was a tug of war which resulted in Karl being removed from his grandmother and taken away in the van. Again, there is a dispute of fact. The grandmother says that she heard the mother shouting "pull him, pull him", a man jumped out of the van and grabbed the child. When she would not let him go, the van door was shut on her hand, injuring her. The mother says that her partner was driving the van and it was she who had the tug of war to remove Karl from his grandmother's grip. Either way, it was a shocking episode of which any mother should be deeply ashamed. Thereafter they travelled by car and ferry through Slovakia, Germany, France and England, arriving in Northern Ireland around 17 March 2012. Karl had to leave behind his country, his home, his toys and his clothes, his school and many other activities, and the grandparents with whom he had lived all his life. He was taken to a country he did not know, with a language he did not know, by a mother he scarcely knew, to live with her and a half-sister and step-father whom he had never met.
After arriving in Northern Ireland, Karl had some contact with his grandparents by telephone and by SKYPE, but this was terminated by the mother later in 2012 and there has been no contact since then.
Shortly after the removal, the grandmother contacted the Children's Rights Division in her home city in Lithuania and a referral was made via Children and Families Across Borders to the local authority in Northern Ireland. A social worker undertook an assessment using the "Understanding the Needs of Children in Northern Ireland" (UNOCINI) framework, which was completed on 24 May 2012. Karl had been enrolled in school in April, after the Easter break. His behaviour during the first week had been very disturbed and the school had requested specialist support for this. Otherwise, the assessment was that the mother appeared to have good insight into the needs of her children, but that Karl had experienced a major change in his life, and would benefit from support in relation to the current language barrier and emotional support which would enable him to process his thoughts and feelings about the move. Nevertheless it was agreed that the case should be closed as the school had involved behaviour support. A letter from the head-teacher in February 2013 reported that his behaviour since returning to school in September 2012 had been exemplary. He had very quickly mastered English and was making excellent academic and social progress.
When the solicitor for the Official Solicitor interviewed Karl at his mother's home in April 2013, she found a little boy who presented as very young. He expressed a desire to stay with his mother in Northern Ireland. The solicitor concluded:
"[Karl] has experienced a situation where he was cared for by a grandmother, whom he believed was his mother, and had irregular contact with a woman with whom his relationship was unclear. He was subsequently abducted from his grandmother in an extremely frightening manner by a person whom he believed at the time was a stranger. He was removed from the country of his upbringing to a country where he struggled initially with the language. Contact with his grandparents, who had been his primary carers and the significant adults in his life, was brought to an abrupt end by his mother and he was informed that his grandparents had lied to him throughout his entire life. In light of the above, despite [Karl's] assertion that he wants to remain with his mother, I have concerns about the emotional well-being of this young boy and the impact of the traumatic events on his ability to formulate his wishes and feelings freely and without influence. It is entirely possible that [Karl] has suffered emotional harm and I would consider that it might be in his best interests for an expert assessment to be carried out in order to identify appropriate supports for him."
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