Pump Court Chambers

Child abduction and the PR Problem

Blog 21st July 2015

Considering the subject matter, the 2014 Supreme Court judgment in Re K (a child) (Northern Ireland) [2014] UKSC 29 caused few ripples in the general consciousness of the family bar. What practitioners need to take away from this judgment is that they should be advising clients without PR for their children to obtain the same without delay, especially where the Mother is a foreign national or has ties abroad.

The Hague Convention & Brussels II (revised) provide comfort to us family lawyers. We know, even if we’re not experts in the field, that children can be swiftly brought back from Hague/Brussels countries and so often we use that mantra to pacify our clients who have nebulous (or otherwise) concerns about abduction.

The protection offered by these international instruments is significant. If a person has been exercising custody rights the Court has to return the child (subject to a few exceptions) to their country of habitual residence if the abduction took place less than 12 months prior to the application. Rights of custody are distinct from rights of access; the latter doesn’t afford you the same protection in respect of mandatory orders for return.

So, ‘rights of custody’. What does this mean? If you have PR then that’s you sorted, you have custody rights. However, for Father’s without PR the water can become murky. It has always been argued that these Fathers had ‘inchoate rights’, and that by the fact of fulfilling a parental role a person could avail himself of the protection offered by the convention. Post Re K here are the requirements the SC says applicants need to fulfil to be exercising rights of custody;

  • They must be undertaking the responsibilities, and thus enjoying the concomitant rights and powers entailed in the primary care of the child’.
  • ‘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’.
  • ‘That person or persons must have either have abandoned the child or delegate his primary care to them’. So effectively the Father must be caring for the child on a full time basis, not as a shared care arrangement with the Mother (or someone else with PR)’
  • ‘There must be some form of legal or official recognition of their position in the country of habitual residence (to distinguish those whose care of the child is lawful and those whose care is not)’.
  • ‘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’.

So there we have it, readers. Rights of custody for Father’s without PR explained in a few, easy steps.

Better make that PR application now, hey?

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