Brussels, 06/10/2010 (Agence Europe) - Through its judgment in Case C-400/10 PPU delivered on 5 October, the Court of Justice of the EU ruled that removal of a child by a parent to another member state is wrongful only if it is in breach of custody rights granted by national law. This interpretation of the relevant Community law is in line with the articles of the Charter of Fundamental Rights on respect for private and family life (Art. 7) and protection of the rights of the child (Art. 24), the Court stated.
In Ireland, the natural father of three children, removed by their mother to the United Kingdom, opened proceedings to oppose the removal, but his request was turned down by the High Court of Ireland on the grounds that, at the time of the removal, he had not been granted custody. Under Irish law, when an unmarried couple separate, the mother is automatically awarded custody of any children. The natural father can only have custody rights through an agreement entered into by the parents or by a court judgment. The Supreme Court of Ireland, to whom the father then appealed, asked the Court of Justice if, in the light of the Charter of Fundamental Rights, Irish law complied with Regulation 2201/2003 (jurisdiction and recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility).
The Court of Justice, building on a previous European Court of Human Rights ruling, found that Irish law complied with the above-mentioned European regulation and the Charter of Fundamental Rights, which itself complies with the European Human Rights Convention. It stated that, in the case in point, removal of the children by the mother to the United Kingdom and their non-return to Ireland would only have been illegal if the father had obtained a judgment from a national court with jurisdiction, awarding him custody rights before the children were removed. The Court states that the Community regulation does not stipulate who should have custody rights that would make the removal of a child/children illegal, but leaves it to the law of the member states where the usual place of residence of the child/children was immediately prior to the removal to determine who holds such rights. It is, then, the law of that member state which determines the conditions under which the natural father is awarded custody of his child/children. (F.G./transl.rt)