Rights of custody

by | Jun 3, 2022

Article 3 and 5 of the Hague Convention state when the removal of a child is to be considered wrongful.

Article 3

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; and
b)   at the time of removal or retention those rights were actually 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.

Article 5

For the purposes of this Convention –

a)   “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;
b)   “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.

Courts have considered the meaning and effect of art 3, when read in conjunction with art 5. For instance:

In Re H (A Minor) (Abduction) [1990] 2 FLR 439 the UK court decided that in a case where the custody order in favour of the mother expressly prohibited removal of the child from Ontario without the leave of the court, the subsequent removal of the child without such leave was a breach of the rights of
custody attributed to her under the law of Ontario. The judge found that there was nothing in the Convention to say that the breach of the rights of custody had to be a breach of the rights belonging to any other person or institution.

In Re C (A Minor)(Abduction) [1989] 1 FLR 403 the UK Court of Appeal decided the effect of art 5, and concluded that the definition of ‘custody’ had a wider meaning than the domestic concept. In that case, the father and mother had a consent order in the Sydney court, whereby the mother was granted custody, and by cl 2 ‘neither the father nor the mother shall remove the child from Australia without the consent of the other’. When the mother removed the child to England without such consent, it was held that the father’s right amounted to a right of custody within art 5, enabling him to decide whether, at the request of the mother, the child should live inside or outside Australia. This decision demonstrates the wide extent of the meaning of ‘rights of custody’.