Rights of Custody – Art. 3
The Court noted that the concept of ‘rights of custody’ was defined in Article 2(9) of Council Regulation 2201/2003 and so was an autonomous concept, independent of the law of Member States. However, pursuant to Article 2(11), the wrongfulness of a removal or retention was entirely dependent on the existence of rights of custody, conferred by the law of the Member State where the child was habitually resident immediately before the removal or retention, in breach of which the removal or retention had taken place.
It was the father’s case that this approach could lead to a situation which would not be compatible either with his right to respect for private and family life, established in Article 7 of the Charter and in Article 8 of the ECHR, or indeed with the rights of the children, as set out in Article 24 of the Charter. He submitted that for the purposes of Council Regulation No 2201/2003, “rights of custody” should be interpreted as meaning that such rights were acquired by a natural father by operation of law in a situation where he and his children had a family life which was the same as that of a family based on marriage.
If that interpretation were to be rejected, the “inchoate” right of the father, enabling him to submit an application to the national court with jurisdiction and, where appropriate, obtain rights of custody, could be deprived of all effect by acts carried out by the mother unilaterally and without the knowledge of the father. Therefore the effectiveness of the right to submit such an application should be adequately protected.
The Court held that it had to consider whether respect for the fundamental rights of the natural father and children precluded the interpretation of Council Regulation No 2201/2003 advocated by the Supreme Court and set out above. The Court recalled that its powers were limited and that the Charter was to be taken into consideration solely for the purposes of interpreting the Regulation and not national law. Moreover, given the identical construction of Article 7 of the Charter and in Article 8 of the ECHR, the former was to be interpreted in accordance with the case law of the ECrtHR on the latter.
A decision had been rendered in a comparable case (Guichard v. France, ECHR 2003-X 714 [INCADAT Reference: HC/E/ 861]; see also Balbontin v. United Kingdom, No 39067/97,  1 FLR 1 [INCADAT Reference: HC/E/ 480]) in which it was held that national legislation granting, by operation of law, parental responsibility solely to the child’s mother was not contrary to Article 8 of the ECHR, interpreted in the light of the 1980 Hague Convention, provided that it permitted the child’s father, not vested with parental responsibility, to ask the national court with jurisdiction to vary the award of that responsibility.
The Court held that the fact a natural father was not a person who automatically possessed rights of custody in respect of his child within the meaning of Article 2 of Regulation No 2201/2003 did not affect the essence of his right to private and family life, provided he had the right to apply to the national court with jurisdiction, before the removal, in order to request that rights of custody in respect of his child be awarded to him. This interpretation was not invalidated in circumstances where the father did not act in good time to obtain rights of custody.
A mother removing a child before a natural father had acquired custodial rights was held by the Court to be exercising, quite legitimately, her own right of freedom of movement, as established in Article 20(2)(a) TFEU and Article 21(1) TFEU, and of her right to determine the child’s place of residence. Furthermore this did not deprive the natural father of the possibility of exercising his right to submit an application to obtain rights of custody thereafter in respect of that child or rights of access to the child.
The Court clarified that “to admit the possibility that a natural father has rights of custody in respect of his child, under Article 2(11) of Regulation No 2201/2003, notwithstanding that no such rights are accorded to him under national law, would be incompatible with the requirements of legal certainty and with the need to protect the rights and freedoms of others, within the meaning of Article 52(1) of the Charter, in this case those of the mother. Such an outcome might, moreover, infringe Article 51(2) of the Charter”.
Finally, the Court noted that the provisions of the Regulation could not be interpreted in a manner which would disregard the fundamental rights (best interests) of the children as set out in Article 24 of the Charter. In this the Court held: “Article 24 of the Charter must be interpreted as not precluding a situation where, for the purposes of applying Regulation No 2201/2003, rights of custody are granted, as a general rule, exclusively to the mother and a natural father possesses rights of custody only as the result of a court judgment. Such a requirement enables the national court with jurisdiction to take a decision on custody of the child, and on rights of access to that child, while taking into account all the relevant facts, […]”.
The European Commission and the German Government argued that the reference was not admissible since the dispute in the main proceedings did not concern the return of children pursuant to Article 11 of Regulation 2201/2003, but an Article 15 declaration as to wrongfulness under the Hague Convention. The Court held however that the presumption of relevance could be rebutted only in exceptional cases, in particular where it was quite obvious the interpretation which was sought bore no relation to the actual facts of the main action or to its purpose.
It noted that insofar as intra-EU abductions were concerned, Regulation 2201/2003 took precedence over the 1980 Hague Convention where the instruments overlapped. As both bodies of rules applied to intra-EU abductions, it was not obvious that the interpretation sought by the Irish Supreme Court was of no relevance to the decision which that court was called upon to make.
Author of the summary: Peter McEleavy