Custody case referred to European court
THE European Court of Justice (ECJ) is to be asked to decide an important issue concerning the custody rights of unmarried fathers in child removal or abduction cases.
A five-judge Supreme Court referred the matter to the ECJ yesterday.
The issue relates to an appeal by a man against a High Court decision. It rejected his challenge to his former partner's removal of their three children to England to live three years ago. The couple had a 10-year relationship and the mother went to England last July with the children, all aged under 10, just weeks after she ended the relationship.
The High Court found the children's habitual residence, when removed by their mother in July 2009, was Ireland. When the man brought his proceedings here in December 2009, the habitual residence was England, it ruled.
The Supreme Court yesterday said that, while it agreed with the High Court the removal was not unlawful because the man had not applied for custody rights here, it would refer a question to the ECJ, which is expected to determine the issue within three months.
The issue relates to the interpretation of the notion of "rights of custody" within the meaning of a November 2003 EC Regulation on the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility.
The ECJ has to decide whether the Brussels regulation, as interpreted under the EU Charter of Fundamental Rights or otherwise, precludes a member state from requiring an unmarried father to have a court order granting him custody before he can have custody rights rendering the children's removal wrongful.
The Supreme Court said it was its own view the answer to that question should be "no", but it was referring the matter to the ECJ.