In the matter of K (A Child) (Northern Ireland)  UKSC 29
Judgment Handed Down: 15th May 2014
In K (A Child) (Northern Ireland)  UKSC 29, the Supreme Court were asked to determine the scope of the term ‘rights of custody’ in relation to wrongful removal of a child from a country. Under Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction:
“The removal or the retention of a child is to be considered wrongful where –
a) It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in
which the child was habitually resident immediately before the removal or retention”.
This is complemented by the Brussels II Revised Regulation (EC) No 2201/2003 which is binding between EU member states. The question to be answered in K (A Child) (Northern Ireland)  UKSC 29 was whether rights of custody included informal rights, which Lady Hale referred to an inchoate rights, or whether they must be already recognised and enforceable rights, such as parental responsibility in the UK.
The facts of the case concerned a Lithuanian boy (K) born in 2005. His mother moved to the UK in 2006 leaving K in the care of his grandparents. When the mother subsequently wished to bring K to the UK to live with her, she notified the authorities which set in motion the legal process. As this would be quite lengthy, the mother and her partner snatched K in Lithuania, bundled him into a vehicle and ultimately brought him back to the UK forcibly. Lady Hale commented that this was exactly the type of situation that the Hague Convention on the Civil Aspects of International Child Abduction was designed to remedy.
Was the removal unlawful according to the Convention and the Brussels II Revised Regulation (EC) No 2201/2003? To be unlawful, it would need to be in breach of custody rights, but did the grandparents have custody rights within the scope of the Convention and Regulations?
Lady Hale gave the leading judgment after reviewing the authorities on so called inchoate rights in this context (Re B (A Minor)(Abduction)  2 FLR 249; Re O (Child Abduction: Custody Rights)  2 FLR 702; Re G (Abduction: Rights of Custody) 2 FLR 703). It was pronounced that the de facto custody rights can be demonstrated by those exercising primary care of the child and who have responsibilities and powers. This was qualified so that:
- They must not be sharing those responsibilities with the person or persons having a legally recognised right to determine where the child shall live and how he shall be brought up. They would not then have the rights normally associated with looking after the child.
- That person or persons must have either abandoned the child or delegated his primary care to them.
- There must be some form of legal or official recognition of their position in the country of habitual residence. This is to distinguish those whose care of the child is lawful from those whose care is not lawful. Examples might be the payment of state child-related benefits or parental maintenance for the child, and
- There must be every reason to believe that, were they to seek the protection of the courts of that country, the status quo would be preserved for the time being, so that the long term future of the child could be determined in those courts in accordance with his best interests, and not by the pre-emptive strike of abduction (Paragraph 59).
To summarise, Lady Hale judgment sets out that where parental rights and powers are being exercised in an unofficial capacity, those rights and powers are not being shared with the mother, the mother has previously abandoned the child, there some level of recognition of their primary care responsibilities, such as benefits receipts for example, and the legal process would keep the child in their custody pending the outcome.
Interestingly, Lord Wilson took a different view in his dissenting judgment of the mother revocation of the grandparent’s custody rights. Lord Wilson maintained that just because the Lithuanian courts would have maintained K’s residence with the grandparents, this is not the same as recognising the grandparents as having rights of custody for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction.
Full judgment of K (A Child) (Northern Ireland)  UKSC 29 is available at: http://supremecourt.uk/decided-cases/docs/UKSC_2014_0093_Judgment.pdf
Press Summary from the Supreme Court available at: http://supremecourt.uk/decided-cases/docs/UKSC_2014_0093_PressSummary.pdf