(European Court of Justice; 5 October 2010)
The Irish father and British mother cohabited for more than 10 years and had three children. The family had lived in the UK but were resident in the Republic of Ireland when the mother left home with the children and moved to a women's refuge. The father applied to the Irish court seeking rights of custody but before the court case, the mother flew to England. The father sought summary return of the children under the Hague Convention. The English court sought determination by the Irish authorities as to whether the removal of the children was wrongful. The Irish court held that the father had no rights of custody and that the removal had not been wrongful. On the father's appeal, the Irish court asked the ECJ for a preliminary ruling as to whether Brussels II precluded a member state from requiring an unmarried father to obtain a custody order in order to qualify as having custody rights.
The ECJ confirmed that a member state is not precluded from making the acquisition of rights of custody by an unmarried father dependent on obtaining a court order. This was not inconsistent with the Charter or the ECHR. ‘Rights of custody' is an autonomous concept independent of the law of member states, but it is for the member state to determine who has rights of custody at the relevant time.
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