Rights of Access – Art. 21
Under different Italian court orders the father had sole custody in respect of the child. Consequently he did not have any order conferring him with access rights. Having failed in his return application he sought to argue that his custody order was the equivalent of an order providing for rights of access. He submitted that the class of access orders could be said to be subsumed within the class of custody orders. The court rejected this argument. Examining Article 5 of the Convention the court held that the two were entirely separate categories. The court held that it did not have jurisdiction to define the rights the father might have and then enforce them.
The court found that the Central Authority had asserted powers and functions outside the scope of what was necessary or appropriate to give effect to the Convention and consequently it was ordered to pay the mother’s costs.