The U.K. Supreme Court has just issued a significant decision on the definition of the all-important term “right of custody” as used in the Hague Abduction Convention. In the Matter of K (A Child) (Northern Ireland)  UKSC 29. The Court has now ruled that that term may include certain informal rights (termed “inchoate rights”), but only if specified and limited conditions are fulfilled.
The child in question lived with his maternal grandparents in Lithuania, with the express written agreement of the child's mother. The father was always uninvolved. When the child was 7 years old the mother unilaterally removed from Lithuania to Northern Ireland against the grandparents' wishes. When the child was an infant a Lithuanian court order had placed the child in the temporary care of the grandparents but that order terminated upon the application of the child's mother shortly before she removed the child from Lithuania.
The grandparents brought a Hague proceeding claiming that the child had been removed from his habitual residence in Lithuania in violation of their “rights of custody” over the child. They had no custody order in their favor and there was no evidence that grandparents had any rights in respect of the child under Lithuanian law. Nonetheless, if they had applied for a custody order in Lithuania they presumably would have had a good chance to have secured one.
Article 3 of the Convention provides that:
“The removal or 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; and (b) at the time of removal or retention those rights were actually being exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State."
Rights of custody are further defined in Article 5(a), which provides that, for the purposes of the Convention, "'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence"; while rights of access are further defined in article 5(b), which provides that " 'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence". Rights of custody are respected by the obligation in Article 12 to order the return of the child "forthwith" where he has been wrongfully removed or retained in terms of article 3, unless one of the limited exceptions provided for in Articles 12 and 13 apply.
The attribution of "rights of custody" is to be determined according to the law of the country where the child was habitually resident immediately before his removal or retention.
The Court considered foreign authorities on “inchoate” rights. It did not unearth any helpful United States authority on this issue. It found that New Zealand has recognized such rights under the Convention for outgoing (requesting) cases; Canada has recognized it for an incoming (requested) case; Australia has recognized it for an incoming (requested) case from the USA but failed even to consider it in an incoming (requested) case from New Zealand; and Ireland has expressly refused to recognize it in an incoming (requested) case from the United States.
The Court concluded that a “strictly limited category” of inchoate rights should be permitted to form the basis for a Hague return application in order to fulfill the purpose of the treaty.
Lady Hale, speaking for the majority of the Court, stated that the applicability of inchoate rights of custody should be limited to situations in which (a) the applicant was undertaking the responsibilities and enjoying the powers entailed in the primary care of the child; (b) the applicant person was not sharing them with the person who had a legally recognized right to determine where the child should live and how he should be brought up; (c) that person had abandoned the child or delegated his primary care to them; (d) there was some form of legal or official recognition of the applicant's position in the country of habitual residence (to distinguish those whose care of the child is lawful and those whose care is not); and (e) there is every reason to believe that, were the applicant to seek the protection of the courts of that country, the status quo would be preserved for the time being while the long term future of the child could be determined in those courts in accordance with his best interests.
Applying that standard to the pending case, the Court ruled that the grandparents did indeed have a Hague Convention right of custody and accordingly the Court ordered the return of the child to Lithuania forthwith. A final comment in the judgment is also noteworthy. Lady Hale noted that the English court possess an “inherent jurisdiction to order the immediate return of a child who has been removed from his country of habitual residence.” Such jurisdiction is entirely independent of the Hague Convention and should have been exercised in the pending case.