J. McB. -v- L.E. [2010] IESC 48 (30 July 2010)

J. McB. -v- L.E. [2010] IESC 48 (30 July 2010)

As a matter of Irish law, an unmarried father does not have rights of custody in the absence of a court order, and nothing in Regulation No 2201/2003 or Article 7 of the Charter of Fundamental Rights requires recognition of such rights without a court order or legal agreement. Therefore, the removal of the children was not wrongful under the Hague Convention or Regulation No 2201/2003.

Citation
[2010] IESC 48
Parties
Applicant/appellant: J. McB.; Respondent: L. E.
Jurisdiction
Ireland
Judgment Date
30 July 2010
Procedural Posture
Appeal / Order for Preliminary Reference to the Court of Justice of the European Union
Outcome
Order for preliminary reference to the Court of Justice of the European Union under Article 267 TFEU.
Legal Topics
Child Abduction, Custody Rights, Guardianship, Interpretation of EU Regulations, Preliminary Reference
Family Law International Law European Union Law Child Abduction Custody Rights Guardianship Interpretation of EU Regulations Preliminary Reference

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Parties

J. McB.

Applicant/appellant

L. E.

Respondent

Procedural Posture

Appeal / Order for Preliminary Reference to the Court of Justice of the European Union

Legal Issues

  1. 1 Whether an unmarried father has 'rights of custody' under Irish law and EU Regulation No 2201/2003 for the purposes of the Hague Convention on wrongful removal of children
  2. 2 Whether Regulation No 2201/2003 or Article 7 of the Charter of Fundamental Rights of the European Union precludes a Member State from requiring a court order for custody rights

Ratio Decidendi

As a matter of Irish law, an unmarried father does not have rights of custody in the absence of a court order, and nothing in Regulation No 2201/2003 or Article 7 of the Charter of Fundamental Rights requires recognition of such rights without a court order or legal agreement. Therefore, the removal of the children was not wrongful under the Hague Convention or Regulation No 2201/2003.

Court Disposition

Order for preliminary reference to the Court of Justice of the European Union under Article 267 TFEU.

Orders

  • Question referred to the Court of Justice of the European Union for a preliminary ruling on the interpretation of 'rights of custody' under Regulation No 2201/2003 and the Charter of Fundamental Rights.