A v H (Registrar General for England and Wales and another intervening)
| Jurisdiction | England & Wales |
| Judgment Date | 2009 |
| Date | 2009 |
| Court | Family Division |
Removal outside jursidiction – Rights of custody – Parental responsibility – Mother and father marrying in Islamic ceremony not recognised as valid under English law – Mother giving birth to child – Father registering child’s birth in attempt to obtain parental responsibility as unmarried father – Mother removing child to the Netherlands without father’s consent – Father applying for child’s return pursuant to Hague Convention – Hague District Court requesting determination from central authority in UK regarding whether removal wrongful – Whether father having parental responsibility by virtue of being named on birth certificate – Whether father having inchoate rights of custody – Whether statutory scheme incompatible with father and child’s human rights – Births and Deaths Registration Act 1953, s 10(1) – Hague Convention on the Civil Aspects of International Child Abduction 1980, art 3 – Human Rights Act 1998 – Adoption and Children Act 2002, s 111.
The mother, who was Dutch, and the father, a British national, met through the Internet. They were both Muslims, the mother having converted to the religion. In August 2006, she came to England and took part in an Islamic marriage ceremony with the father at a mosque. They both knew that the ceremony was not recognised as a valid marriage under English law. In August 2007, the mother gave birth to a child, M. Shortly thereafter, the father registered M’s birth and was named as the father on the birth certificate, having informed the registrar either that he was married to the mother, or that he reasonably believed himself to be married. He attended the registry alone, having refused the mother’s offer to accompany him. He also failed to explain to her that, by virtue of s 111 of the Adoption and Children Act 2002, being named on the birth certificate potentially enabled an unmarried father to acquire parental responsibility for his child. The means by which that could be achieved were set out in s 10(1) of the Births and Deaths Registration Act 1953, which provided that ‘in the case of a child whose father and mother were not married to each other at the time of his birth … the registrar shall not enter in the register the name of any person as father of the child, except—(a) at the joint request of the mother and person stating himself to be the father of the child (in which case that person shall sign the register together with the mother …’ Registration could also be achieved at the request of the mother or father, provided that they produced declarations in prescribed form by each of them confirming the
father as the father of the child. In March 2008, the mother took M to the Netherlands without the father’s knowledge or approval, thereafter indicating by e-mail that they would not return to England. In June, the father applied to the central authority in the United Kingdom for the return of M pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980. On 6 October 2008, the Hague District Court made a request for the central authority to submit a determination as to whether M’s removal was wrongful within the meaning of art 3 of the Hague Convention. It thus fell to be determined whether the father had ‘rights of custody’, such being a prerequisite to his application. It was common ground that if he had had parental responsibility for the child under domestic law in March 2008, he had rights of custody within the Hague Convention. The father submitted, first, that he enjoyed parental responsibility as a result of his name appearing on the birth certificate. He argued that any difficulties arising from his failure to comply with s 10(1) of the 1953 Act were ameliorated because the register could not be altered to insert anyone else’s name or to remove his own. He also prayed in aid the fact that the mother had taken no steps to correct the register and contended that she would have signed it, had he asked her to, since she had to do as he said. He submitted, secondly, that, looked at cumulatively, the facts of the case came within the ‘well-recognised concept’ of inchoate rights of custody as presently defined or, alternatively, that inchoate rights, ‘as a flexible concept’, were well able to encompass those facts. Thirdly, he submitted that a purposive construction of his and M’s rights under, inter alia, art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt I of Sch 1 to the Human Rights Act 1998) required that he be granted rights of custody. A further issue arose as to whether, if it was determined that he did not have parental responsibility pursuant to the statutory scheme, the relevant sections thereof violated his and M’s rights under, and should be declared incompatible with, the European Convention.
Held – (1) An unmarried father could only obtain parental responsibility by complying with the statutory provisions. In the instant case, it had been obvious to the father at the registry that he was being asked if he was married in a manner recognised not by him, but by the civil authorities. If he was not to mislead the registrar he needed to make clear that, though binding on him in conscience, the marriage was not recognised in law. He could not take advantage of what resulted from answers which were, at best, not frank. There would have to be clear statutory wording before an incorrect or false document could be held to grant a parent rights which he did not and could not have obtained by the means in fact used. The father therefore had to bring himself within the provisions of s 10 of the 1953 Act, which he could not do since the mother had not attended with him to sign the register, nor had he had any of the other prescribed documents with him. It was of no help for him to say that the mother would have attended if
asked by him, or that she had raised no objection and taken no steps to rectify the register afterwards. There were major difficulties in relying on what she might have done since she had been under the influence of the father to such an extent that the necessary ‘joint request’ might well have been open to question if its validity had subsequently been challenged.
(2) Inchoate rights of custody had not yet developed to include cohabiting couples sharing the care of a child with or without a religious ceremony or other commitment binding in conscience upon them, or those who believed that they had rights which they did not have. The father in the instant case had not acquired rights of custody by sharing the care of M with the mother prior to her departure or as a result of any of the other factors relied upon. There had been no abandonment of care to him and he had not had the right to determine where M lived. He therefore had no inchoate rights of custody; Re W (a minor) (unmarried father), Re B (a minor) (unmarried father)[1998] 2 FCR 549 considered.
(3) The statutory scheme neither interfered, nor was incompatible, with the father or M’s human rights. But for the mistaken issue of the birth certificate, the statutory framework had been considered without adverse comment by the European Court of Human Rights on the ground that it was justifiable; the aim of legislation to identify ‘meritorious’ unmarried fathers who might be awarded parental responsibility, as compared with an automatic award to married fathers, had been upheld. It would be astonishing if that whole scheme was now to be declared incompatible when the only different feature related to the wrongful issue of the birth certificate with the father’s name on it. The parents had had the right to be married in a form recognisable by the state or in one which was not. Aware of the differences, they had made a choice which had been fully open to them. That did not mean that, when those differences led to difficulties, the court should be assiduous to develop new concepts to bridge the gap. Such went beyond the purposive approach which was to be adopted; McMichael v UK[1995] 2 FCR 718 considered.
The request would accordingly be answered with the determination that the father had neither parental responsibility, nor rights of custody in relation to M.
Cases referred to in judgmentA ‑ M v A ‑ M (Divorce: Jurisdiction: Validity of Marriage) [2001] 2 FLR 6.
Amalgamated Investment & Property Co Ltd (in liq) v Texas Commerce International Bank Ltd [1981] 3 All ER 577, [1982] 1 QB 84, [1981] 3 WLR 565, CA.
Azad v Dhaka [2001] Imm AR 318, CA.
B (a minor) (abduction), Re[1995] 2 FCR 505, [1994] 2 FLR 249, CA.
B v UK[2000] 1 FCR 289, [2000] 1 FLR 1, ECt HR.
C (child abduction: rights of custody), Re[2002] EWHC 2219 (Fam), [2003] 1 WLR 493, [2003] 1 FLR 252.
Chief Adjudication Officer v Bath[2000] 1 FCR 419, [2000] 1 FLR 8, CA.
D (a child) (abduction: foreign custody rights), Re[2006] UKHL 51, [2007] 1 FCR 1, [2007] 1 All ER 783, [2007] 1 AC 619, [2006] 3 WLR 989, [2007] 1 FLR 961.
Dennis v Dennis[2000] 2 FCR 108, [2000] Fam 163, [2000] 2 FLR 231.
F (abduction: unmarried father: sole carer), Re[2002] EWHC 2896 (Fam), [2003] 1 FLR 839.
F (children) (abduction), Re[2008] EWHC 272 (Fam), [2008] 2 FCR 120, [2008] Fam 75, [2008] 3 WLR 527, [2008] 2 FLR 1239.
Ghandi v Patel [2002] 1 FLR 603.
Gil v Spain[2005] 1 FCR 210, [2005] 1 FLR 190, ECt HR.
Guichard v France App No 56838/00 (2 September 2003, unreported), ECt HR.
H (child abduction: unmarried father: rights of custody), Re[2003] EWHC 492 (Fam), [2003] 2 FLR 153.
Hunter v Murrow[2005] EWCA Civ 976, [2005] 3 FCR 1, [2005] 2 FLR 1119.
J (a minor) (abduction: custody right), Re [1991] FCR 129, [1990] 2 AC 562, [1990] 3 WLR 492, sub nom C v S (minor: abduction: illegitimate child) [1990] 2 All ER 961, [1990] 2 FLR 442, HL.
Johnston v Ireland (1986) 9 EHRR 203, [1986] ECHR 9697/82, ECt HR.
Marckx v Belgium (1979) 2 EHRR 330, [1979] ECHR 6833/74, ECt HR.
McMichael v UK[1995] 2 FCR 718, ECt HR.
P (a child) (abduction: custody rights), Re[2004]...
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