Inchoate Rights of Custody: Supreme Court considers the rights of carers

RE K [2014] UKSC 29 The key issue in the case was whether at the time Karl was removed from Lithuania and taken to Northern Ireland his grand mother had ‘rights of custody’ over him so as to make the kidnapping (for that is what it was) of him wrongful (i.e. a breach of the grandmother’s legal rights of custody over him). It is clear that underpinning the analysis was both a moral and philosophical rationale that ‘real world effects’ should take priority over strict legal rights. The decision is, unsurprisingly given that Baronness Hale wrote the judgment, firmly rooted in child welfare and pragmatism. The decision is a majority of 4-1. The majority concluded that where the care of a child is wholly delegated to a third party another by the holder/s of parental responsibility that the third party will acquire rights of custody over the child. They identified 5 criteria which would be required to confer such rights. (a) They must be undertaking the responsibilities, and thus enjoying the concomitant rights and powers, entailed in the primary care of the child. (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. 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. (e) 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. The justices reached this conclusion by asserting that a distinction is to be drawn between the ‘domestic’ question (namely what rights did the Applicant have under the laws of the country of habitual residence at the time of removal) and the ‘Convention’ question of whether the factual situation resulted in inchoate rights which amounted to ‘right of custody’ for the purposes of the Hague Convention. The 1980 Hague Convention covers rights of custody acquired by operation of law, by court order or by agreement having legal effect under the laws of the country where the child was habitually resident immediately before removal. The justices concluded that ‘inchoate’ rights might fall into the category of an agreement having legal effect. The answer is both yes and no. It has long been a feature of English law (both domestic and Convention) that ‘rights of custody’ can be acquired by a person to whom exclusive care of a child has been delegated by the holder/s of PR. It has long been clear that those sharing the care of a child with the holder/s of PR do NOT acquire inchoate rights. So in that sense this decision does not add much , save to set out some criteria by which the court can evaluate whether inchoate rights have been acquired. The answer is also no because the decision was reached in the face of evidence from Lithuania which made it clear that the Lithuanian authorities did not regard the grandmother as having any rights of custody under Lithuanian law. The decision does place England is head-on conflict with many other jurisdictions who delineate far more clearly between legal and moral rights. The civil law jurisdictions in the EU will find it hard to understand, still less accept the sort of approach the Supreme Court took. Lord Wilson took an approach and delivered a judgment which lawyers will find far easier to understand and accept; based as it was, so firmly in black letter law. The decision of the majority is consistent with the approach the English courts have taken over many years but is difficult to square with the previous appellate decisions in Hunter-v-Murrow (CA) and Re D (HL). The critical difficulty and where the Supreme Court decision may have a dangerous side effect is that it may lull lawyers and others into a false sense of security in thinking that a client has ‘rights of custody’ when for the majority of Hague countries, in particular the EU, they won’t be so viewed. EU countries struggle to accept that a prohibited steps order amounts to a right of custody and still less are they likely to accept that ‘inchoate’ rights of custody are acquired by caring for a child. If this decision results in lawyers or carers delaying an application to court for PR or a CAP it could have lasting consequences for the child. A local authority to whom a parent has delegated care under section 20 CA 1989 will almost certainly not have rights of custody for most other countries, ditto grand-parents with sole and exclusive care. The advice MUST be to apply to court as soon as possible to secure an order which actually gives PR under the Children Act 1989. If there is a threat of sudden removal the MIAM’s exemption should be applied and an immediate application made.