Sir Christopher Sumner :
- This is a request by The Hague District Court of 6 October 2008. It is brought under Article 15 of The Hague Convention, which came into force pursuant to the Child Abduction and Custody Act 1985. The request was addressed to the Central Authority in the UK which was to submit:
"a decision or other determination, which establishes that the removal was wrongful within the meaning of Article 3 of the Convention from the authorities of the United Kingdom, as referred to in Article 15 of the Convention."
- It concerns M, a child born in London on 11 August 2007. His parents are Muslim. The father, A, is a British national, the mother, H, is from The Netherlands. They went through an Islamic wedding 3 days after the mother came to England in August 2006. On 31 March 2008 the mother, without notice to the father, took M to The Netherlands where they have both remained.
- The father started Hague Convention proceedings in June 2008 in The Netherlands. It led to the present request. The issue it raises is whether the father had, in March 2008, "rights of custody" as defined under the Convention, an essential prerequisite to his Hague Convention application. If he did, the removal was wrongful under the Convention.
- The legal difficulties that resulted have led to a delay of 6 months before determination. They have involved the appointment of an Advocate to the Court and representation on behalf of the Registrar General of Births and Deaths and the Secretary of State for Justice as Interveners. The hearing, with evidence and a reading day, lasted 4 days, with numerous authorities before the court. Even then argument was not concluded, with further submissions in writing being forwarded a week later. I have endeavoured to answer those which are essential, whilst mindful that this will not be comprehensive.
- The result is that, a year after M was removed and 9 months after Hague Convention proceedings started in The Netherlands, a date for a final hearing has not been fixed. It awaits an answer to the request. A review of the delay on behalf of the father has not shown any obvious lessons to be learned. It is the problem of advocates advancing a full range of arguments and the difficulty for the court in predetermining points before they are fully addressed in what are bound to be complex situations. I am fortunate to have had experienced counsel to address me.
The background
- The Applicant father is 36 years old. He is a college lecturer living in East London. The Defendant mother is 27 years old. She lives at an address which has not been disclosed in The Netherlands where she was born and brought up. She is a convert to Islam. The parties met through the internet.
- The father had been previously married to S by way of a Muslim wedding. They had 2 sons, H and SA, born in May 2001 and January 2004. They live with their mother. There have been proceedings concerning the father's contact.
- The mother came to England on 21 August 2006. On 24 August she met the father and went through an Islamic ceremony of marriage (Nikah) with him at a mosque. They both knew it was not recognised as a valid marriage under English law. The father subsequently divorced S by pronouncing a talaq.
- M was born on 11 August 2007. On 15 August 2007 the father registered M's birth and he is named as the father on the birth certificate. The mother was not present. It will be necessary to consider both the ceremony of marriage and the registration in due course to determine their effect.
- The parties cohabited in East London. In March 2008, without the father's knowledge or approval, the mother took M to the Netherlands where they have remained. There was a subsequent e-mail communication between them. The mother would not return with M.
- On 27 June 2008 the father applied to the Central Authority in the UK for the return of M under the Hague Convention. There were hearings in The Hague District Court leading to the request of 6 October 2008. In the course of those proceedings the mother denied that the father had rights of custody in respect of M. The father in answer relied on the fact that his name appeared on M's birth certificate. He also claimed that he had rights of custody pursuant to s.1 of the Legitimacy Act 1976. The mother said that the father's name should not have appeared on the birth certificate and denied his claim. It is as a result of those rival contentions that the present request was made.
Representation
- Mr Setright QC with Mr Gupta appeared on behalf of the father, and Mr Scott-Manderson QC with Miss Wood appeared for the mother. The Registrar General was represented by Miss Mountfield and the Secretary of State for Justice by Miss Fatima, both parties appearing as Interveners. Miss Gallagher was Advocate to the Court.
The issues
- In addition to the issue of rights of custody, the mother seeks rectification of M's birth certificate. It may be helpful at this stage to list the route by which it is said the father had parental responsibility or otherwise acquired rights of custody. There is also a claim by the father that he had inchoate rights of custody in the particular circumstances which arose here. It is common ground that if parental responsibility or inchoate rights of custody are established, then the father has rights of custody within the Hague Convention.
- The mother's position has been clear from the beginning of proceedings in The Netherlands. The father does not have parental responsibility. There were means by which he could have sought to acquire it, but not by registering M's birth in the manner that he did. He did not acquire rights of custody whether by this or any other means.
- In his later written submissions, Mr Setright raises the question whether inchoate rights should be considered within domestic law or within the autonomous jurisdiction of the Hague Convention. I am satisfied that firstly I have to determine the father's rights in English law. If they do not include parental responsibility, that may not be a complete answer. There could be instances where an unmarried father had rights of custody, whether inchoate or otherwise, without having parental responsibility. This is because of the international aspect and autonomous nature of the Hague Convention.
- The list is as follows:
i) The father's name appears on M's birth certificate as the father. That gives him parental responsibility. Whether that should have happened does not matter. The mother took no steps to correct it. It remains a valid application by the father of which the birth certificate is evidence.
ii) The Muslim marriage, the parent's belief in it, the cohabitation, and the birth certificate with the father named are, with other factors, capable of giving rise to rights of custody. Alternatively the mother should not be permitted to resile from her acceptance of those matters and the rights which arise from them.
iii) The state led the father to believe he had acquired parental authority. It would be unfair and perverse to permit it now to resile from that.
iv) The facts looked at cumulatively come within the well recognised concept of inchoate rights of custody as presently defined. Alternatively inchoate rights, as a flexible concept, is well able to encompass those facts.
v) The father and M's human rights, under Article 8 of the European Convention on Human Rights ("ECHR") and other Articles, require a purposive construction. This must lead to the father being granted rights of custody to meet both his and M's rights to respect for their family life.
vi) Finally if a declaration is made against the father on the basis that he does not have parental responsibility under s. 4 of the Children Act 1989 and/or s.10 of The Births and Deaths Registration Act 1953 ("BDRA"), or he cannot otherwise claim rights of custody under the Hague Convention, those sections should be declared to violate the father's and M's Convention rights and are therefore incompatible with the Convention.
- Before coming to my conclusions on each of these interesting points, it will be helpful to have in mind both the legal frame work and my findings of fact set out. I shall therefore set out:
- The essential provisions of the Hague Convention in relation to its description of rights of custody and the jurisdiction for making requests as here.
- The circumstances in which parental authority arises in domestic law under the Children Act 1989, and the BDRA.
- The position of children of void marriages under the Legitimacy Act.
- My findings on the relevant facts here.
- The court's approach to deciding rights of custody.
The Hague Convention
- It covers the position when a child is taken unlawfully by a parent from one Convention country to another without the consent of the other parent. An application can be brought provided that, at the time of removal, the child was habitually resident in the first Convention country (as is accepted) and the parent bringing the proceedings had rights of custody.
- If that is satisfied, the courts of the country to which the child is taken must, pursuant to a summary procedure, return the child to its country of origin. There are limited grounds upon which the abducting parent can rely to counter the application. In this instance the mother relies on Article 13 in the proceedings before The Hague District Court. She seeks to prove that to return M would expose him to a grave risk of physical or psychological harm. If she succeeds, the Court has a discretion whether to order M's return or not.
- I now set out the relevant Articles in relation to rights of custody and the request.
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 subparagraph 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."
Article 15
"The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision on a determination may be obtained in that state. The Central Authority of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination."
- In summary, rights of custody are those attributed to the father under English law provided he was exercising them when M was removed. Those rights include the care of the child and in particular the right to determine where the child shall live. A Convention country to which a child is taken can ask an applicant to obtain from the Convention country where the child was habitually resident a decision on whether the removal was wrongful within Article 3. Convention countries are to assist applicants as far as possible to obtain a decision.
Parental responsibility
- It is common ground that, if the father had parental responsibility for M in March 2008, he had rights of custody within the Hague Convention. This is because, under s.3 (1) of the Children Act 1989:
"In this Act "parental responsibility" means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property."
I mention for completeness s.2 (1) of the Act which provides:
"Where a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility."
- For an unmarried father to acquire parental responsibility, he had only three means of doing so before December 2003. Under s.4 of the Children Act, they were by entering into a parental responsibility agreement with the mother, applying to court for a parental responsibility order, or by obtaining a residence order which automatically included a grant of parental responsibility.
- By s.111 of the Adoption and Children Act 2002, it was provided that, as from 1 December 2003, there was an additional way. It was for the unmarried father of a child to apply to be named on the birth certificate. The means by which this could be achieved are set out in s.10 of the BDRA. They number 7 in all. Only the first is relevant here.
"10. - (1) Notwithstanding anything in the foregoing provisions of this Act, in the case of a child whose father and mother were not married to each other at the time of his birth, no person shall as a father of the child be required to give information concerning the birth of the child, and the registrar shall not enter in the register the name of any person as father of the child, except:
at the joint request of the mother and person stating himself to be the father of the child (in which case that person shall sign the register together with the mother); or …"
- I summarise sub s. (b) to (g). Registration can also be achieved at the request of the mother or the father provided they produced declarations in prescribed form by each of them confirming the father as the father of the child. Also the mother or the father could produce a parental responsibility agreement, a certificated court order giving parental responsibility, certain court orders requiring the father to make financial provision for the child, or certified copies of specified court orders set out in the section. In each case there has to be a prescribed declaration as well.
- Thus, for a valid registration, what was required in this instance, under s.10 (1)(a) above, was for the father and mother to attend together at the registry, and for both to ask for the father to be named as the father of the child. In addition the father had to state that he was the father of the child. Finally both of them had to sign the register. These details show that the registrar's task is to record details of the father on the birth certificate based just on the information that is given.
Legitimacy of children of a void marriage
- There was already in existence in 2003 quite separate provision for children of void marriages. It covered the limited circumstances under which they could be declared legitimate. Under s.1 (1) of the Legitimacy Act 1976:
"The child of a void marriage, whenever born, shall, subject to subsection (2) below and Schedule 1 to this Act, be treated as the legitimate child of his parents if at a time of the insemination, resulting in the birth … both or either of the parties reasonably believed that the marriage was valid."
- The effect of that section is not in dispute. It is to treat the child of a void marriage as if the marriage was valid provided one or both parents reasonably believed the marriage was valid when the child was conceived. The child is therefore legitimate and the father has parental responsibility as a result. However the belief has to be that the marriage was valid in English law (see the Court of Appeal decision in Misha Azad v Dhaka (2001) Imm AR 318 at para 13). It follows that a belief that the marriage was valid by reason of a ceremony not recognised as constituting a valid marriage is not sufficient.
- Miss Harris, head of Births Deaths and Adoptions at the General Register Office, filed a statement, gave evidence and produced the Guidance to Registrars. Under para 30, the Guidance states:
"When it comes to light that the parents of the child have been through a form of marriage which was bigamous, void or otherwise not recognised in English law, the registrars should explain that under Section 1 of the Legitimacy Act 1976 the child should be regarded as a child of that marriage, and registered as such, provided either parent reasonably believed that marriage ceremony to have been valid, either when the child was conceived or at the time of the marriage, if that took place between conception and birth. If the registrar is in any doubt as to how the birth should be registered … he/she should seek advice from the General Register Office (General Section)."
- This guidance is unfortunately wrong in one particular as is now agreed. A void marriage is described under s.10 (1) of the Matrimonial Causes Act 1973 as a marriage not being voidable only. S.11 sets out the only circumstances in which a marriage can be void.
- In summary that is when it does not comply with the essential requirements under the Marriage Acts, the parties are within the prohibited degree of relationship, either of the parties is under 16, the parties have intermarried in disregard of certain requirements, one of the parties was already lawfully married, the parties are not male and female, and finally either party to a foreign polygamous marriage was domiciled here. There is a clear distinction drawn between void and voidable marriages.
- In this instance it is accepted that the parent's Islamic marriage is neither a void nor a voidable marriage. It is a non-marriage (see Ghandi v Patel (2002) 1 FLR 603, para 37-48). As such by itself, whatever its significance to the parents, it gives rise to no rights nor is it recognised in English law. It is thus apparent that, for the Guidance to be accurate, it should have the words "… or otherwise not recognised in English law …" in the first sentence deleted.
Findings in relation to sole registration
- The essential areas where I should make findings are the circumstances in which the father went alone to register M's birth on 15 August 2008, and the events which led to him being registered as the father. The registrar, I am informed, is experienced. She has not been called to give evidence as she is away on long-term sick leave. It is in any event unlikely that she would have recalled this particular registration amongst all those that she conducted, 500,000 births are registered in the UK each year.
- Having heard the evidence of the parents, I am satisfied that the mother knew nothing about the significance potentially attaching to the registration of a father's name on a child's birth certificate in this country. She was aware that in Dutch law registration was a formality, as it was here until 2003. It did not affect the parties' rights in relation to the child. She reasonably expected English law to be similar. She only learned of the difference after she had left with M.
- The father wanted to register M's birth very shortly after he was born. He sought an early date for this. He said he would sort it out and told the mother that she did not need to come. She did offer to go with him but he refused. He did not then or later explain to her the significance of his being named as the father on the birth certificate. The birth certificate itself provides no information about how the father came to be registered in that capacity. It does not say that an application by an unmarried father resulting in him being named on the birth certificate can confer parental responsibility on him.
- I do not accept that the mother was not up to going with the father on 15 August nor that she asked him to go on his own, as the father says. He stated what he was going to do. He expected the mother to do as he said, and at this time she did so.
- It is instructive to see how the issue of belief arose in the proceedings in The Netherlands and here. Before The Hague District Court the father relied on his name being on the birth certificate to give him parental responsibility and thus rights of custody. He accepted that his Islamic marriage to the mother was not acknowledged under English law. But he also said that he was registered as the father because when he registered the birth he reasonably believed he was married to the mother.
- The father's continued conviction that the Legitimacy Act assisted him when the Islamic marriage was plainly not a void marriage is to be seen in the father's position statement of 4 February. It is also in the Advocate to the Court's position statement of 1 February 2009. It was exposed in the mother's position statement also of 4 February, and the contrary arguments have not been further relied upon.
- At the registration of M's birth, the father says he explained his marriage was by way of Nikah. He had a Nikah certificate confirming the celebration of their Islamic marriage. He showed the Registrar his and the mother's passports and the Nikah certificate. It was the only marriage that mattered to him. It was exactly the same procedure as he had done for his 2 older sons, though on those 2 earlier occasions he had no Nikah certificate to show on registration.
- In evidence he said that he was asked whether he considered himself to be married. He said that that he did and produced the certificate. He added that his belief that registration by him alone was sufficient arose from a hearing in the Bow County Court on 6 October 2006 in relation to contact with his 2 older sons. On that occasion he was granted parental responsibility for his eldest son H but not of his second son SA born in January 2004. He says this was because he was told it was not necessary. He already had it by virtue of registration as he was informed by his solicitor and the Recorder.
- I have not seen the 2 earlier birth certificates nor the papers relating to the hearing in October 2006. As I mentioned during the hearing, without them it is difficult to reach any conclusions about that hearing save as is set out in a court order produced by the father. In particular the information the father says he was given, without more information, I find improbable.
- The parents are both Muslims. The father has a passionate belief in his faith. The mother's may be as strong but it was less evident from her evidence. His Islamic marriages were the only ones that mattered to him and in his mind justified him calling himself married.
- Miss Harris said in the evidence said that the registrar had to satisfy himself whether the father was married. Everything was based on what was said. If he said he was the father, the registrar would continue. If he said it was an Islamic marriage, the father would be asked whether he regarded it as valid. If there was doubt, more questions would be asked.
- I have been concerned about the father's evidence. His zeal has on occasions led him to exaggerate or persuade himself incorrectly that events happened when they did not. If the father is right that the process at the Registry was the same on all 3 occasions, he cannot have been registered as the father unless he said he was married, or reasonably believed he was if the guidance was followed. Yet though the Islamic ceremony of marriage may have been crucial to the father, both he and the mother knew that it was not one that was recognised in English law. He was being asked this for the purposes of registration which he knew potentially gave rise to rights in English law.
- It follows that there was no means by which the father could lawfully have been named in the birth certificate as M's father on 15 August 2007. The mother did not sign the register nor were the other conditions in s.10 of the BDRA satisfied. His name appeared because either the father said he was married to the mother or, if he referred to the Islamic marriage, he said he reasonably believed he was married.
- Determining what happened before the registrar, following my reservations about the father's evidence, has been difficult. Given his zeal, well illustrated in his evidence, it is likely that the father said he was married. It is possible but less likely that he said he was validly married. I accept that he took the Nikah, or evidence of his Muslim marriage, with him. I do not consider that the registrar looked at it nor does the father say that she did.
- My findings are therefore that it was the father who was anxious to register M's birth at an early date. He rejected the mother's offer to come too. I do not accept his account of why she did not accompany him. He took their 2 passports and the Nikah certificate with him. In answer to questions, he said he was married as he regarded himself in conscience. He may have mentioned the certificate but the registrar did not look at it nor the passports.
- If, as is less likely, he was asked about his belief in the validity of the marriage and confirmed it, it was a misrepresentation by the father. He is a college lecturer who has lived all his life in this country. He has been involved in court proceedings concerning his 2 older sons. In August 2007 he knew full well the difference between a marriage valid in English law and his own Muslim marriage.
- I entirely accept that the Muslim marriage was the only form of marriage which would have meaning for him. When he thought its significance to him was being questioned, he reacted in an unusually excited manner, asking if he was being called a fornicator. I do not criticise his strong beliefs. But he allowed them to give answers which were not accurate.
- To a man of his experience and intelligence, it was obvious that he was being asked if he was married in a manner which was recognised not by him but the civil authorities. Equally, if asked whether he considered it valid, he knew it did not mean on his conscience but in law. If he was not to mislead the registrar, he had to make clear that, as he knew, the Muslim marriage though binding on him was not recognised in law. This he did not do and he cannot take advantage of what resulted from answers which were at best not frank.
The court's approach
- That has been clearly set out by the Court of Appeal. In Re P (Abduction: Consent) (2004) 2 FLR1057 Ward LJ said:
"Accordingly on this aspect of the case we conclude that:
i) The Hague Convention requires the court to give the expression "rights of' custody" an autonomous interpretation;
ii) the reference in Art 3 to "rights of custody attributed to a person under the law" of the child's habitual residence is not a choice of law of that State in the sense that if the domestic law (still less the conflict-of- laws rule) does not characterise the right as a right of custody, then it will not be such a right for Hague Convention purposes;
iii) the task of the court is to establish the rights of the parents under the law of that state, and then to consider whether those rights are rights of custody for Hague Convention purposes;
iv) in considering whether those rights are rights of custody, the court is entitled and bound to give a purposive and effective interpretation to the Hague Convention…….."
- In the case of Hunter v Murrow (Abduction: Rights of Custody) (2005) 2 FLR 1119, Thorpe LJ cited the passage above. In relation to the second part of the exercise, and Mr Setright's argument that the court should adopt the more liberal construction of the New Zealand Court of Appeal, he said:
"Turning to Mr Setright's second submission, it is fairly said that in determining whether or not the father exercised rights of custody immediately prior to X's removal this court applies not English law but the English perception of the autonomous law of the Hague Convention."
- Finally in Re F (Children) (Abduction: Custody Rights) (2008) 3FLR 527, Sir Mark Potter P quoted the speech of Baroness Hale In Re D (A Child) Abduction: Rights of Custody) (2007) 1 AC 619 where she said:
"In other words, if all that the other parent has is the right to go to court and asked for an order about some aspect of the child's upbringing, including relocation abroad, this should not amount to 'rights of custody'. To hold otherwise would be to remove the distinction between 'rights of custody' and 'rights of access' altogether.
- The President added:
"In so holding, Baroness Hale made clear that her in interpretation not only coincided with the understanding of English and Scottish courts hitherto and what appeared to be the majority of the common a world, it was the appropriate solution within the autonomous jurisprudence of the Convention."
The father's submissions
- It is against that background, my findings and the statutory framework that I consider Mr Setright's points, advanced with his customary persuasiveness. I shall make additional findings as I proceed.
- The mother accepts that she took no steps to correct the birth certificate before leaving with M. She did not know it was wrong nor that, contrary to Dutch law, the application by the father gave him parental responsibility. Otherwise she disputes all the father's points. In this she is joined by the Registrar General and the Ministry of Justice, but not by the Advocate to the Court.
The father's name on the birth certificate
- I have firstly to determine the position in English law. It is accepted that because the mother did not attend and could therefore not sign the register, and because M is not the child of a void marriage, the father's name should not have appeared on the birth certificate. The father could not obtain parental responsibility by attending alone at the registry, that is unless he also had with him the prescribed documents including a declaration signed by the mother.
- Mr Setright is not deterred. He argues that the father prima facie enjoyed such rights by reason of the certificate. Any difficulties are ameliorated because he was the father, the register cannot be altered to insert anyone else's name, nor can the father's name be removed.
- The position about the correction of an entry of birth is set out in s.29 of the Births and Deaths Registration Act 1953. It gives the registrar rights to correct the register in prescribed circumstances. As Miss Harris explains, the correction does not replace the original entry but is added by means of a marginal note. In her statement she says, in my view correctly:
"However, a correction is retrospective in the sense that it can only be made so as more accurately to reflect the facts which were in the existence at the time of registration. In that sense a correction is always retrospective because it is changing or removing information which should not have recorded at the time of registration."
- Mr Setright continues that, to interpret s.4 of the Children Act 1989 in a way that does not confer rights of custody, would be contrary to a purposive approach necessary when considering it in Convention terms. It would violate the father's and M's human rights. He also prays in aid that if the father had asked the mother to come with him, and he had asked her to sign the register, she would have had done so. He relies upon her answers that she had to do what the father said, which she explained by saying that there would be adverse consequences for her if she did not.
- I have reached a clear conclusion about this aspect of the case. Parental responsibility for an unmarried father can only be obtained by complying with the statutory provisions. The father did not believe that he had entered into a valid marriage in terms of English law. M was not the child of a void marriage. The father therefore has to bring himself within the provisions of s.10 of the BDRA. This he cannot do as the mother did not attend with him and sign the register, nor did he have any of the other prescribed documents with him.
- It is of no help for him to say that the mother would have attended if asked by him, that she raised no objection, and that she took no steps to rectify the register afterwards. She did not attend. Furthermore, as Mr Scott-Manderson pointed out in his robust defence of the mother's position, there are major difficulties in relying on what the mother might have done. She was under the influence of the father to such an extent that the necessary "joint request" might well have been open to question if its validity was subsequently challenged.
- What is clear is that the father makes no suggestion that he told the mother that he had acquired or believed he had acquired parental responsibility for M. She had no reason to believe his application did or might give rise to rights if properly performed, either from what he said or on reading the birth certificate.
- Equally it is not a case where the wrongful description in the birth certificate gives the father rights which, if the correct information had been given, he would have had. He could not on 11 August be named as the father of M once he had decided to go alone. The entry is not valid until corrected because it never had any validity. There would have to be clear statutory wording before an incorrect or false document could be held to grant a parent rights which he did not and could not have obtained by the means in fact used. It is not to be found here.
The Muslim marriage and the registration of M's birth
- This arises in part from the speech of Baroness Hale in Re D (Abduction: Rights of Custody) (2007) 1 FLR 961 where she said at para 44:
"Given, however, that the Convention terms have an autonomous meaning, it is possible to contemplate the possibility that the foreign court's characterisation of the effect of its domestic law in Convention terms is mistaken. We are here concerned, not which domestic law, but with the effect given domestically to autonomous terms in an international treaty which are meant to be applied consistently by all member states."
- Put simply the argument is that in the circumstances which occurred here, even if they do not in domestic law give rise to parental responsibility, are still capable of amounting to rights of custody when considered in Convention terms. Article 3 is not exhaustive of how rights of custody may arise. It must be given a purposive construction.
- Mr Setright lists 8 factors the combination of which he says give rise to rights of custody. These are in summary the religious marriage and the rights conferred on the father under a Muslim law, the subsequent cohabitation, the registration of birth, the mother's knowledge of it and her failure to revoke it, the representation by the registrar that the father could register his name on an agreed basis, and the opportunity for the father to have obtained parental responsibility had he not been misled.
- I have not followed how any representation was made about an agreed basis. On the father's account, no mention was made of the mother and whether she agreed to his name being registered. On my findings the father was not misled.
- Amongst the difficulties facing this argument are that both parents were aware that the Muslim ceremony of marriage did not give them the same rights which a ceremony complying with English law would do. A valid marriage could have been performed in a mosque. They chose not to pursue a marriage in this form. It was well known to the father as one of his brothers had had what, in a legal sense, I describe as a valid marriage under English law.
- Their cohabitation was brief. It was not long enough to give rise to a presumption of marriage and thus legitimacy by that route. This can arise after cohabitation for a significant period, a marriage ceremony, and evidence that the parties and others regarded them as man and wife (see A-M v A-M (Divorce: Jurisdiction: Validity of Marriage) (2001) 2 FLR 6 and Chief Adjudication Officer v Bath (2000) 1 FLR 8 at para 31).
- I shall return to the question of the right to determine where the child lives under Article 5. It is sufficient to note that it is not an indicative factor to a parent's claim to rights of custody. Rights of custody "shall include in particular the right to determine the child's place of residence" (for a discussion on the meaning of this see Re: W; Re: B (Child Abduction: Unmarried Father) [1998] 2 FLR at p.153). It is not enough for the parents to have de facto rights of custody, if just the mother had the right to determine where M was to reside (see Re J (A Minor) (Abduction: Custody Rights) (1990) AC 562). It is the clearest distinction between rights of custody and rights of access in Convention terms.
- Neither the level of commitment nor the binding nature of any religious ceremony to the parties can compensate for the brevity of the relationship. It does not convert a short relationship, whatever its significance to the parties, into one that gives rise to rights of custody. The wrongly issued birth certificate cannot assist the father. It cannot found rights.
- It is said that the registration was an act by a public body which gave the appearance of creating rights. The issue of the birth certificate was an act of a public authority. It was however no more than notification publicly of what had been said privately. It does mean that the notification is valid if the information is wrong or if it is misapplied in law.
- I accept that the father may have believed he had parental responsibility. The father says he took no further action as a result. The answer to that can be put shortly. There was no representation to the father. He took no further action because he mistakenly thought that he alone could ensure he was named as the father on the birth certificate. That could never happen and it was the father's mistaken view which led to his belief.
- The father also has to take a significant measure of responsibility for the incorrect issue of the birth certificate in the first place on my findings. He cannot rely on his own failure to give accurate information.
- There is no guarantee that, had he taken other steps, it would necessarily have resulted in the grant of parental responsibility which was not open to challenge later as I have mentioned. As I have said, the degree of control exercised by the father meant that any consent from the mother either by signing the register or the appropriate form would have been open to question.
Even if the father's belief arose from the registrar following incorrect guidance, I do not see that that is of assistance to him. A mistake of this nature however unfortunate cannot create rights when the correct procedure would not have done so. The registrar made no representation to the father that he had parental responsibility, nor that his marriage was void. It was an assumption made by the father on the basis that, as his name was on the birth certificate, this would follow. But his name had to be correctly there and it was not, and the fault was his.
- It is said to be unfair on the father. I do not see that. To create unfairness in this situation means that it is either all on one side, or that any countervailing unfairness on the mother does not exist or is to a much lesser degree. That is not so here. I find that the father alone knew that, if his name appeared on M's birth certificate, he would acquire parental responsibility. That is I am satisfied why he hurried to register the birth and excluded the mother. He told her nothing of this then or later.
- Had he been successful, whether misled or not, the mother would have been deceived. What she understandably and reasonably believed was no more than a formality would have given rights to the father unknown to her. There was nothing to alert her to what had happened. The father kept her in ignorance and nothing is to be learned from the birth certificate. It is difficult to see that, if there was unfairness to the father which I do not accept, it was not at least equalled by this unfairness to the mother at the time. I should make clear that, whatever the unfairness to the mother, it does not justify her in taking M to the Netherlands in March 2008.
Estoppel
- The concept is well known if not in family law. In Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd (1982) 1 QB 84, Lord Denning gave a classical definition:
"When the parties to a transaction proceed on the basis of an underlying assumption – either of fact or law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them - neither of them will be allowed to go back on that assumption when it would be unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands."
- This is used by Mr Setright as the basis for arguing that the action of the registrar meant that the father did not seek agreements or orders that would have given him parental responsibility. It is said to be unfair and perverse for public authorities including the court to resile from recognising his rights as a named father. They have created representations and a factual situation from which neither they nor the mother should be permitted to go back.
- In the course of argument, Mr Setright emphasised the unfairness on the father and how he would otherwise have had rights of which the state firstly and then the mother sought wrongfully to deprive him. Faced with the difficulties raised by using estoppel in accordance with its strict definition, he sought to use estoppel as a concept to help shape the court's purposive approach. Put in this way that can be helpful. It highlights the argument that rights of custody remain a flexible concept able to meet different situations and not to be defined by any fixed approach.
- I have to reject that approach in this case. On the facts of this case, there is no way the father could acquire parental responsibility other than by statutory provision. Rights of custody can arise only by this route or through inchoate rights. Estoppel and, as I shall come to, legitimate expectation are not concepts which enlarge the scope of either category. They are a means of highlighting factors which may provide a route to the acquisition of rights of custody, either because they are within those rights as presently defined or within a legitimate extension.
- Assuming that the Registrar-General and/or the mother are both the party making the representation and are the party seeking to go back on it, I do not see that there was a representation here. It was an assumption by the father for which he had responsibility. A court cannot be in any event be estopped if that is suggested. I have already considered the question of fairness which, as with this argument in general, does not assist the father.
Inchoate rights of custody
- In argument Mr Setright put his case in this way. Where a de facto position exists in which the father was eligible to receive particular rights, and did not make an application because he was led to believe he had them, he is entitled to say he had inchoate rights. This is supported by the father and M's human rights and a purposive approach. It is the opposition which produces the rights not the error. It is not a challenge to the distinction between married and unmarried fathers.
- The description of those rights at their widest is in Re B (A Minor) (Abduction) (1994) 2 FLT 249. The case concerned unmarried parents living in Australia. The mother became addicted to heroin and led a chaotic life style before returning to Britain in 1992 leaving their 4 year old son with the father. A year later the father agreed for the child go the mother for six months in Britain. He was not returned. The question was whether the father had rights of custody.
- Waite LJ said:
"The difficulty lies in fixing the limits of the concept of 'rights'. Is it to be confined to what lawyers would instantly recognised as established rights – that is to say those which are propounded by law or conferred by court: or is it capable of being applied in a Convention context to describe the inchoate rights of those who are caring out duties and enjoying privileges of a custodial or parental character which, though not yet formally recognised or granted by law, a court would nevertheless be likely to upholding the interests of the child concerned? The answer to that question must, in my judgment, depend upon the circumstances of each case. If, before the child's abduction, the aggrieved parent was exercising functions in the requesting State of a parental or custodial nature without the benefit of any court order or official custodial status, it must in every case be a question for the courts of the requested State to determine whether those functions fall to be regarded as 'rights of custody' within the terms of the Convention. At one end of the scale is (for example) a transient cohabitee of the sole legal custodian whose status and functions would be unlikely to be regarded as qualifying for recognition as carrying Convention rights. The opposite would be true, at the other end of the scale, of a relative or friend who has assumed the role of a substitute parent in place of the legal custodian."
- In Re C (Child Abduction) (Unmarried Father: Rights of Custody) (2003) 1 FLR 252, Munby J sought to reconcile that decision with the earlier House of Lords decision in Re J (A Minor) (Abduction: Custody Rights) (1990) 2 AC 562 quoting a series of decisions, one of them mine, which had followed both decisions. The common thread he found was that in each instance the mother abandoned the care of the child to someone else. After a valuable review of the authorities, he concluded at para 44 that, apart from those cases of abandonment:
"An unmarried father who, as Hale J put it, shares the care of his child in the way that mothers and fathers living under the same roof commonly do, does not, in my judgment, have rights of custody within the meaning of the Hague Convention."
- I agree entirely with his analysis. I would venture to suggest that the reconciliation may be easier when it is appreciated that in Re J, whilst both parties had de facto rights of custody, the mother alone had legal rights of custody and the right to decide where the child should reside. In Re B it was held that the father was the primary carer of his son which the mother had expressly approved.
- Another way of putting the concept of abandonment is to consider Article 3 (b). In a number of the decided cases, the parent who had the right to say where the child should reside would have found it difficult to say "at the time of removal or retention those rights were actually exercised". The effect of abandonment is for those rights no longer to be exercised.
- The position was further explained and confined in the case of Re F (Abduction: Unmarried Father: Sole Carer) (2003) 1 FLR 839. There the father with sole care was held to have inchoate rights of custody. Dame Elizabeth Butler-Sloss P said:
"I do not believe that those principles (in Re B above) should be extended beyond the situation which I have raised today."
- I should also mention a later decision of Re H (Child Abduction) (Unmarried Father: Rights of Custody) (2003) 2 FLR 153. The case concerned an unmarried father without parental responsibility where the mother left for Spain the day before the father applied to stop her. His solicitors had earlier said that if they did not have confirmation that he mother was not removing the child they would apply to court.
- The mother's solicitors responded that the mother was not making arrangements to move to Spain. Holman J held that the giving of that confirmation was recognition by the mother that the father "already had some right, or at least an inchoate right, to determine the child's place of residence." Furthermore the letter involved a determination of the child's place residence and, un-withdrawn, gave the father a right of custody within the Convention.
- With great respect to a most experienced judge, I have not found the decision altogether easy to follow in the light of the decisions above. It may be that the right acknowledged was no more than the father's right to go to court. It is however a move towards greater recognition of the rights of unmarried fathers which may well come in domestic law as I set out below. I do not see in any event that I can make the same recognition on the facts before me.
- In this context Mr Setright referred me to a White Paper published by the Government in June 2008. It referred to unnecessary obstacles placed in the way of unmarried fathers who wanted to take responsibility for their children. It recommended requiring unmarried fathers to be recorded in the birth register, unless it would be impossible, impractical or unreasonable to do so. In this way, unmarried fathers would acquire parental responsibility automatically unless one of the exceptions applied. Such provision would make the difficulties presented by this case no longer a problem.
- In his reply, Mr Setright points to remarks of Hale J as she then was in Re W: Re B to which I have referred, where she indicated, in relation to the differences between married and unmarried father:
"There may come a time when the Parliament in this country, having considered the policy matters further, decides to eliminate those differences. Or there may come a time when so many of the Contracting States decide to do so that the currently wide margin of appreciation allowed in this area narrows so far as to oblige us to do so. But in my view that time has not yet come."
- I share that view. It now appears very much closer. But it would be wrong for me to anticipate and put into practise changes in the law that may or may not come about, whatever my own views are.
- I find that the father did not acquire rights of custody by sharing the care of M with the mother prior to her departure or as a result of any of the other factors relied upon. There was no abandonment of care to him nor did he have the right to determine where M lived. The mother had not recognised any rights of the father as in Re H above. This father does not have inchoate rights of custody.
- I am reinforced in those conclusions by other observations by Hale J in Re W; Re B above. At p.158 she said:
"There appears to be a consensus amongst most Contracting States, which would stretch 'rights of custody' to include a right to veto leaving the country but there is no evidence before me of a consensus taking it further than that. To do so would entail serious inroads into those rights of custody which it was the principal object of the Convention to protect. It could lead to considerable confusion and uncertainty, for example if a person claiming such a wider right was tempted to snatch a child back, even though the person who had taken the child away was perfectly entitled to do so."
- I have not been referred to any decision throwing doubt upon those observations. Baroness Hale did not do so in Re D above, nor did she seek to comment adversely on the House of Lords decision in Re J above. Inchoate rights of custody may yet develop to include cohabiting couples sharing the care of a child with or without a religious ceremony or other commitment binding in conscience upon them. It may also include those who believe they have rights which they do not have. But on the authorities binding on me, those are not propositions that I can accept at this time.
The impact of human rights on the father and M
- Under Article 8:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
- In B v United Kingdom (2000) 1 FLR 1 there was a claim of unfair discrimination against unmarried fathers. It was dismissed by the European Court of Human Rights ("ECtHR"). The head note summarises the conclusion as follows:
"…….the complaint was declared to be inadmissible because there was an objective and reasonable justification for the difference in treatment between married and unmarried fathers with regard to the automatic acquisition of parental rights, which related to the range of possible relationships between unmarried fathers and their children."
- It is unlawful for a court as a public authority to act in a way which is incompatible with a person's Convention rights (s.6 of the Human Rights Act 1998 and Re D: (2007) 1 AC 619). It is said that misleading the father and thus depriving him of participation in Hague Convention proceedings is in breach of Article 6, right to a fair trial. I accept Miss Fatima's response. This is not procedural unfairness but the result of legislation. Article 6 is not engaged.
Articles 9, 12, and 14
- An argument is also raised that a failure to recognise the Muslim marriage breaches Article 9 (rights to freedom of religion) and Article 12 (rights to marry and found a family), in the event that the father is held not to have rights of custody It is said to be disproportionate and outside the margin of appreciation. It is also said to breach Article 14, discrimination on grounds of religion. It deprives M of the father's ability to stop him from being abducted or retrieved if he is.
- As Miss Fatima points out, there is no interference with the father's right to practice as a Muslim nor marry in accordance with a Muslim ceremony. English law does require him to comply with certain formalities if he wishes to have additional rights, though it is at the expense of other rights he presently has, for instance to have more than one wife. This does not breach any of these Articles.
- This is clearly stated in X v Federal Republic of Germany (1975) 1 D&R 64 (applied here in Dennis v Dennis (2000) 3 FLR 1443) where it was held:
"In the present case the applicant was not denied the right to marry. He was only requested to marry under the forms prescribed by German law. There is consequently no appearance of a violation of the Convention, especially of Articles 9(1) and 12."
- English law recognises differences in the rights of married and unmarried fathers. Unmarried fathers do not enjoy all the rights of married fathers. The difference has been upheld by the ECtHR as human rights compliant (see Marckx v Belgium (1979) 2 EHRR 330 and Johnston v Ireland (1985) 9 EHRR 203).
- Equally Article 8 rights have to be considered in context. M does have a right not to be abducted. But his and the father's right to be reunited are not rights at large. In Iglesias Gil and AUI v Spain (2005) 40 EHRR 3 it was held that:
"With specific regard to the positive obligations that Art. 8 of the Convention imposes on the Contracting States, with regard to reuniting parents with their children, they must be interpreted in the light of the Hague Convention."
- The case of Guichard v France ( App. No. 56838/00 of 2.9.03), to which Miss Fatima referred is instructive. There unmarried parents signed a joint declaration of birth in respect of their son before the mother took the child to Canada. The father complained of the administrative authorities' refusal to intervene on his behalf because he did not have parental authority. It was held by the ECtHR that there had been no infringement of Article 8 by reason of a lack of adequate measures to secure the child's return.
"The Court notes firstly that the applicant complained of the administrative authority's refusal to intercede on his behalf under the Hague Convention on the grounds that he did not have parental responsibility for his son."
- The Court reiterated that the essential object of Article 8 was to protect individuals against arbitrary action by the public authorities. There are in addition positive obligations inherent in effective "respect" for family life.
- After citing a number of earlier decisions, the Court continued:
"There was therefore no doubt that the Hague Convention was applicable to the facts of those cases and the question arose as to whether Article 8 had been infringed on account of a possible lack of adequate measures by the authorities to secure the child's return…...
The Court considers that under the provisions of the Hague Convention, the central authorities must take all appropriate measures to secure the prompt return of wrongfully removed children…… on the date when the child was removed from France to Canada, the relevant provisions of the Civil Code vested the exercise of parental responsibility (which includes rights of custody) in the mother by operation of law, both the father and mother having recognised their "illegitimate" child. In these conditions, the removal could not be regarded as wrongful within the meaning of the Hague Convention. Accordingly, the applicant, who did not have "rights of custody" within the Hague Convention, could not rely on the protection afforded by that convention.
In view of those considerations, the Court finds that in the present case Article 8 of the Convention, interpreted in the light of the Hague Convention, did not impose positive obligations on the French authorities to secure the return of the child.
The Court accepts, however, that the applicant might challenge the domestic authorities' refusal to recognise that he had parental responsibility for his child.
The Court reiterates that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law……. It observes further that, as the Conseil d'Etat did not find any incompatibility between the applicable provisions of domestic law and those of an international convention, it is not its function to review that court's assessment unless the procedure followed in the French courts appear to be contrary to the rules laid down by the Convention or arbitrary."
- I do not see the need to treat that decision with the caution Mr Setright urges. That it was a decision on admissibility and the father was unrepresented does not assist. It follows a line of ECtHR decisions to the same effect of which more than 10 are referred to. Its significance is that both parents attended to register their child's birth. It gave the father in that case no additional rights by itself. The sole attendance of this father without the mother's written consent in proper form likewise does not do so either.
- One earlier case was McMichael v UK (1995) 20 EHRR 205, which was followed in B v United Kingdom (2000) 1FLR 1. It has not been overruled. There the ECtHR upheld the aim of legislation to identify 'meritorious' unmarried fathers who might be awarded parental responsibility, as compared with an automatic award to married fathers.
"In the court's view, this aim is legitimate and the conditions imposed on natural fathers for obtaining recognition of their parental role respect the principle of proportionality. The court therefore agrees with the commission that there was an objective and reasonable justification for the difference of treatment complained of."
- That decision is of course binding on me. The facts, save for the Muslim ceremony of marriage and the father's name on the birth certificate, are similar. It means the legislation is not incompatible with the father's rights. It is not contrary to the rules laid down by the ECHR nor is it arbitrary. A significant feature was that the father in that case was able to apply to obtain parental authority as this father could have done. But he needed the mother's knowledge and approval or a court order.
- M also has Convention rights as is accepted. They include the right not to be abducted. There was discussion at earlier hearings about whether he should be separately represented. It was felt rightly that this was not needed. I am not persuaded that his rights add to those of the father.
The father's claim for breach of his and M's right to a fair trial under Article 6
- Miss Fatima reminded me that it does not control the content of domestic law. In Roche v UK (2006) 42 EHRR 623, the ECtHR held:
"Article 6 (right to a fair trial) does not guarantee any particular content for those (civil) "rights" in the substantive law of the Contracting States: the Court may not create through the interpretation of Article 6 rights which have no legal basis in the state concerned."
- To recognise that the father had parental rights here would be to create such a right. Different considerations arise under Article 8. It is for the father to show that there has been an interference with his right to respect for his family life by a public authority. As Miss Fatima pointed out, it is argued that the first interference was by the registrar and the second was the whole statutory scheme. It is difficult to see what interference there was by the registrar.
- They do not have the power to grant or refuse rights. Their task is to record accurately what they are told. They do not make representations. If they misapply the law to the facts they are told, they do not wrongfully interfere with the father's rights if, as a result, he does not then seek other means of achieving the status he seeks. He was not told he was married nor had parental responsibility. It was a wrongful inference by the father.
- For him to say he was or reasonably believed he was married, was itself misleading. He knew he was not being asked about his religious belief but his married status in English law. He may not have wished to mislead but he allowed his own deeply held convictions to express themselves. That led to his name appearing on the birth certificate. In those circumstances, if the registrar wrongly applied the law, that cannot be a wrongful interference by the state when it was the father's conduct that was responsible. Still less is it an "arbitrary action by the public authorities" (Guichard's case above).
- On the authorities, I have found no possible way of saying that the statutory scheme I have set out in any way interferes with the father or M's human rights or is incompatible with them. But for the mistaken issue of the birth certificate, the statutory framework has been considered without adverse comment by the ECtHR on the grounds that it is justifiable. It would be astonishing if that whole scheme were now to be declared to be incompatible when the only different feature relates to the wrongful issue of the birth certificate with the father's name on it.
- I remain unclear about what aspect of the father's or M's human rights it is said are being interfered with other than a failure to grant parental responsibility to the father and the failure to secure a means where by an abducted child can be returned. That is a reflection on the terms of the Hague Convention. It is not a grievance which this court can remedy.
- The parents had the right to be married in a form recognisable by the state or one which was not. Aware of the differences where there was no recognition, they made a choice which was fully open to them. It does not mean that, when that differences lead to difficulties, the court should be assiduous to develop new concepts to bridge the gap. That goes beyond the purposive approach I have tried to adopt.
- Miss Mountfield for the Registrar General pointed that the responsibility to ensure that any particular entry is correct is on the person providing the information. It is an offence knowingly to provide a false answer under the Perjury Act 1911. Parental responsibility flows not from being named but from a valid application.
- Miss Gallagher as the Advocate to the Court claims that because of the policy of the Registrar General, that the father's name on the register means he remains registered as M's father, and the 'marriage' was sufficient to give parental responsibility. Also inchoate rights give rise to an 'attractive argument' when looking at the unusual facts in this case.
- The cumulative effect of them provides the court with a basis on which to hold that he has inchoate rights. Human rights, though forming a persuasive basis, may be unnecessary in the circumstances. A positive answer is sought. For the reasons set out above, I have not found this a persuasive argument.
- Perhaps surprisingly she agreed with most of Miss Fatima's submissions. She said the father did not choose not to obtain parental responsibility. The registrar misapplied the law, the father relied on it, and thus gave rise to a legitimate expectation that his marriage was accepted and/or he had parental responsibility.
- Mr Setright, following this up in his reply takes the point that the acts of the Registrar gave rise to an legitimate expectation that his name was rightly on the register with the rights and responsibilities that flow from it. It is a situation which may arise more widely.
- It is unfortunate that this argument arose in reply and not earlier when it could have had a full consideration. I propose to deal with it shortly. Administrative law concepts in the same way as estoppel have a place in family law as elsewhere. Within the confines of this case, it is unlikely that they add to the father's case over and above the other points that have been taken on his behalf.
- More fundamentally neither concepts have a proper foundation where the representation relied on emanates from the father. Any additional weight given by a mistake of law might have force if the route take by the father could have been valid in the first place. It could not. Nothing the registrar might do could give rise to an expectation that rights could result, when he never has such a jurisdiction. The duty of the registrar was to record facts given to him, not to pronounce or adjudicate.
- It follows that I have not accepted the main thrust of Mr Setright's arguments when balanced against those of Mr Scott-Manderson and Miss Fatima which I accept. My conclusions are that the father does not have parental responsibility nor rights of custody. The request should be so answered. I am minded to make a declaration about the father's name on the birth certificate. I am conscious that I have not done full justice to the full range of submissions which I have heard. I leave counsel to draft the appropriate wording. I express my gratitude for all their assistance.
