The Supreme Court has referred a question to the Court of Justice of the European Union about whether EU law allows a country to require an unmarried father to obtain a court order granting custody before his children’s removal can be treated as wrongful.
The reference, delivered by Mr Justice Fennelly on 30 July 2010, arose from an appeal concerning three children identified in the decision as J., E. and J.C. McB. Their parents are identified as J. McB. and L.E. The judgment says Ireland was the children’s country of habitual residence on 25 July 2009, when their mother took them to England without informing their father.
The father sought their return under the Hague Convention and EU Regulation 2201/2003. The English court asked him to obtain an Irish determination on whether the removal was wrongful. Ireland’s High Court ruled in April 2010 that the father had no custody rights at the time and that the removal was not wrongful. He appealed.
The Supreme Court described the father’s position under Irish law: an unmarried father could apply to be appointed guardian and could seek custody or access orders, but had no custody rights without a court order. The father had arranged for an application to be prepared for a September District Court sitting, but it had not been served, so the court’s jurisdiction had not been invoked before the children left. The Supreme Court said that, under the Hague Convention, it would hold the children were not wrongfully removed.
The father argued that EU law should recognise a natural father’s “inchoate rights” where he had been caring for his children. The mother opposed that interpretation, submitting that it would blur the distinction between custody and access rights. These were parties’ submissions, not findings on the unresolved family allegations: the Supreme Court said the High Court had not been required to resolve disputed evidence about the relationship.
The Supreme Court said it remained satisfied that the father lacked custody rights under the Hague Convention. It nevertheless referred the question of whether Regulation 2201/2003, interpreted in light of the EU Charter or otherwise, precludes requiring such a father to obtain a court order. It considered that the answer should be no, but asked the EU court to rule. It also requested urgent procedure. The reference did not decide the father’s appeal or the outstanding Irish applications for guardianship and custody.