A nine year-old boy taken from Lithuania by his mother must be returned, the Supreme Court has ruled.
In the matter of K (A Child) concerned the legal rights of the boy’s grandparents. Referred to as ‘K’ in the judgement, he was born in March 2005. The following year, his mother, a single parent, moved to Northern Ireland, leaving him the care of her parents. She has lived in the province ever since.
Before her departure, K’s mother gave her own mother legal permission to handle medical matters relating to her son. Later she provided full notarised consent for the grandmother to deal with all matters relating to K on her behalf. A subsequent court order officially placed K in the care of his grandmother, albeit on a temporary basis.
However, in February of 2012, K’s mother returned to Lithuania, seeking custody. The court order was automatically cancelled and she tried to withdraw the notarised consent she had given to her mother.
K’s mother was granted weekly contact, but was advised that legal proceedings to regain custody of her son could be lengthy and expensive. She therefore seized K by force while he was walking home from school with his grandmother and immediately travelled back to Northern Ireland with him.
After initial discouragement from the Lithuanian authorities, the grandparents launched proceedings in the Northern Irish courts. They applied for a declaration that the K had been wrongfully detained in the country, and that their rights of custody had been breached. This was refused and a subsequent appeal was also unsuccessful.
But the Supreme Court has now reversed the earlier decisions in a majority ruling. Delivering the judgement, Lady Hale said the grandparents did have ‘rights of custody’ as set out in Article 3 of the Hague Convention on the Civil Aspects of international Child Abduction,. This states that:
“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”.
Lady Hale drew a distinction between formally recognised legal rights and ‘inchoate’ rights: informal rights which have not yet been legally recognised.
“The grandparents had for many years undertaken the responsibilities entailed in the primary care of the child. They had exercised all the decision-making rights and powers associated with that. Until days before the abduction they had done so with the benefit of some specific authorisations granted by the mother. The mother had undoubtedly delegated the care of her son to them. For most of that period the grandmother’s status had been officially recognised. Had it not been for what appears to have been the automatic cancellation of that status on the mother’s notification of her return, there would have been no problem at all in ascribing rights of custody to the grandmother. There would have been no need to involve any concept of inchoate rights. But it seems to me that her position did still have some legal content after that order was revoked.”
The English Courts should continue to recognise inchoate rights to custody, the Supreme Court concluded, provided the parties claiming them meet certain criteria, namely:
“(a) They must be undertaking the responsibilities, and thus enjoying the concomitant rights and powers, entailed in the primary care of the child. Thus, for example, our law recognises the obvious truth that people who are actually looking after a child, even if they do not have parental responsibility, may “do what is reasonable in all the circumstances of the case for the purpose of safeguarding and promoting the child’s welfare” (Children Act 1989, s 3(5)). (b) 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. (c) That person or persons must have either abandoned the child or delegated his primary care to them. (d) There must be some form of legal or official recognition of their position in the country of habitual residence.”
All those conditions applied to the grandparents, said the court, and therefore the removal of K had breached their rights of custody as defined by the Convention.
Lady Hale describe the mother’s seizing of K as “a classic example of the sort of conduct which the Convention was designed to prevent and to remedy.”
“Looked at from his point of view, he was wrested away from the person he regarded as his mother, who had looked after him for the whole of his life, by one person whom he scarcely knew, if he recognised her at all, and another whom he did not know at all; he was taken away from his familiar home, his clothes and his toys, his school and his country; he was taken over land and sea to a place which he did not know, where they speak a language which he did not know, to live with people whom he did not know, and to go to a new school. Small wonder that his behaviour in the first few weeks there was deeply disturbed.”
In a dissenting judgement, Lord Wilson of Culworth argued that the grandparents had lost their rights of custody when the mother returned to Lithuania.
Read the full judgement here.