Nicholas Anderson and Anna Sutcliffe, 1 King's Bench Walk
A prerequisite to any successful application for the summary return of an abducted child under the 1980 Hague Convention is that the applicant parent holds and exercises ‘rights of custody’.
Nicholas Anderson and Anna Sutcliffe, barristers from 1 King’s Bench Walk, consider what ‘rights of custody’ means and consider whether an applicant need hold an order for the physical custody of a child or even live with the child before they enjoy ‘rights of custody’.
The article sets out the circumstances in which rights of custody can exist and how the courts will determine the issue.
The article also considers recent case law on ‘inchoate rights of custody’ which may be held by a carer of a child who has no other legal rights and the circumstances in which rights of custody can be held by the court as the basis for an application by a parent for the summary return of a child under the Hague Convention 1980.
Finally, Nick and Anna deal with the circumstances where the courts may find that rights of custody are being ‘exercised’, including by applicants who have very little physical contact with the child.
The full article will be published in the May issue of Family Law.
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