Irishman loses custody case in Luxembourg

Klingon Hamlet

Article here:

Irishman loses custody case in Luxembourg
Tuesday, 5 October 2010 18:00

An unmarried Irish father whose partner took their three children to the UK without his consent has lost a case in Europe's highest court over his custody rights.

In a landmark ruling, the European Court of Justice decided the man's rights under the EU Charter of Fundamental Rights were not breached when his partner removed the children to England, simply because he did not have time to secure custody rights through the Irish courts.

Although unmarried fathers are not automatically granted custody rights in Ireland, the court ruled, their rights under EU law were not infringed because they still had the right to go to court to secure custody.
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The court ruled that a key article of the Charter of Fundamental Rights was not therefore infringed since Irish custody laws did not infringe the father's rights.

Furthermore, the woman's right to take her children to another member state was enshrined in the EU's freedom of movement laws.

The father, an Irish national, was named as J McB while his British partner was referred to as LE.

The couple had lived together for more than 10 years and from November 2008 lived with their three children in Ireland.

The children were born in 2000, 2002 and 2007.

The court heard that the mother had left the family home with the children to live in a women's refuge on 11 July 2009, before flying with them to the UK two weeks later.

Ten days before she left Ireland, the father attempted to gain custody through an Irish court, but since the application had not been served on the mother before her departure he was, under Irish law, unable to secure custody.

In November 2009 Mr McB sought the return of his children through an English court order, but was told he needed a declaration from the Irish courts that their removal was wrongful.

In December Mr McB made that application to the High Court, but the application was dismissed in April 2010 on the basis that he had no rights of custody when the children left Ireland, so their removal was not considered 'wrongful.'

The father then brought the case to the Irish Supreme Court, which in turn asked the European Court of Justice in Luxembourg to ascertain if the removal of the children breached Article 7 of the EU Charter of Fundamental Rights, which deals with respect for private and family life.

The Luxembourg court decided that the question of custody rights - which might determine whether a removal was wrongful - was decided by national courts.

Under an EU regulation, which addresses cases where children are removed from one member state to another, the question of whether such a removal is wrongful is governed by the custody laws where the child or children resided before their removal.

The court referred to a similar case taken by a French father to the European Court of Human Rights in Strasbourg.

On that occasion the Strasbourg court found that the man's human rights had not been infringed.

In today's ruling the Court of Justice in Luxembourg also acknowledged that the scope of the European Convention on Human Rights extended to how the EU Charter of Fundamental Rights be applied.

The EU Charter of Fundamental Rights was enshrined in EU law in the recently passed Lisbon Treaty, and this was the first challenge involving the charter at the Court of Justice.

The Charter is only applied where EU law is concerned - on this occasion the EU regulation on the parental removal of children from one member state to another.

The European Convention on Human Rights came into force in 1953 after it was established by the Council of Europe, a democracy and human rights organisation made up of 47 members and established in 1949.

It is a separate organisation from the EU, but under EU law the Charter of Fundamental Rights derives much of its legal weight from the European Convention on Human Rights.

Absolutely tragic:(:(

rugbyman

i am very much pro family, but in what way is this tragic? do you think a mother who settles in a foreign country should have to live there for years because her estranged partner lives there?

rugbyman

rolly1

The Children lived in Ireland for 10 years with both mother and father. Ireland was their home, the home from which they were snatched by their mother. If that guy had guardianship she would have been guilty of child abduction.

Because of this backward s***hole of a country's barbaric laws against unmarried fathers we end up ina situation where effective child stealing is now legally possible by unmarried mothers. The flood gates have been opened up.

On top of the absolute disgusting treatment of this man and his children this ruling now opens up this same terrifying prospect for all unmarried fathers in this country who do not have gaurdianship of their children.

So Yeah I think that certainly qualifies as tragic in my books anyway

jimmycrackcorm

Well I would assume that the interests of the children be paramount and therefore they should be kept in the country they were growing up in. Why should the wife be allowed to remove them to a foreign country denying the father access by proxy of travel?

Bottle_of_Smoke

rugbyman wrote: »

i am very much pro family, but in what way is this tragic? do you think a mother who settles in a foreign country should have to live there for years because her estranged partner lives there?

rugbyman

He's their father. If she didn't want to stay she could have left by herself.

mdebets

rolly1 wrote: »

The Children lived in Ireland for 10 years with both mother and father. Ireland was their home, the home from which they were snatched by their mother. If that guy had guardianship she would have been guilty of child abduction.

The children were only living in Ireland for 7 months, not 10 years.
The oldest child was 9 years old at the time, so the father had 9 years time to get joint custody. Why did he only did it 10 days before she left. So it was basically his fault for not bothering with it for 9 years.

View

rolly1 wrote: »

The Children lived in Ireland for 10 years with both mother and father.

They didn't. The article states they lived in Ireland from November 2008. They left end of July 2009.

The couple had lived together for more than 10 years and from November 2008 lived with their three children in Ireland.

The court heard that the mother had left the family home with the children to live in a women's refuge on 11 July 2009, before flying with them to the UK two weeks later.

sligopark

Fhave no rights other than payments. Sorry situation but understood by many father's in the country who wave their children goodbye when its not the father's fault the marriage has broken down.

View

The important points here are:

The Luxembourg court decided that the question of custody rights - which might determine whether a removal was wrongful - was decided by national courts.

Under an EU regulation, which addresses cases where children are removed from one member state to another, the question of whether such a removal is wrongful is governed by the custody laws where the child or children resided before their removal.

In other words, the ECJ said it was up to the Irish courts to make a decision in this case, and previously they had decided:

In December Mr McB made that application to the High Court, but the application was dismissed in April 2010 on the basis that he had no rights of custody when the children left Ireland, so their removal was not considered 'wrongful.'

There may be a case that the laws here aren't up to the job but that is a domestic - rather than EU - issue.

rolly1

mdebets wrote: »

The children were only living in Ireland for 7 months, not 10 years.
The oldest child was 9 years old at the time, so the father had 9 years time to get joint custody. Why did he only did it 10 days before she left. So it was basically his fault for not bothering with it for 9 years.

O sorry, the kids lived with him for 10 years, but that wasn't all in Ireland. Yeah I can see how that's a really important difference to the kids alright; now that they don't have their father in their lives as they used to...

It wasn't custody it was guardianship.Did the mother have to get guardianship?

Heartening to see the support for effective child stealing round here.

Easy to see disturbing cases of child removals from the state skyrocketing after all this; at the mother's whim.

What a disgusting country.

rolly1

View wrote: »

The important points here are:



In other words, the ECJ said it was up to the Irish courts to make a decision in this case, and previously they had decided:



There may be a case that the laws here aren't up to the job but that is a domestic - rather than EU - issue.

No, the important point here is that it's now fine for unmarried mothers to f**k off out of the country with the children at the drop of a hat ,regardless of the father's wishes, if he is not a guardian.

All the rest is mere legal detail

Rented Mule

rolly1 wrote: »

No, the important point here is that it's now fine for unmarried mothers to f**k off out of the country with the children at the drop of a hat ,regardless of the father's wishes, if he is not a guardian.

All the rest is mere legal detail

Do you know the exact details of their relationship ?

My wife was in an abusive relationship back in the early 90s while living with her then BF in Holland.

They had a child (my step-son). She tried to make it work, but decided to leave for her own safety.

He fought tooth and nail to get them back. She went back and nothing changed. She had to again leave the country in the middle of the night to get away from him.

So do you think what she did was wrong ?

hucklebuck

That is pure pants, you can be sure if he refuses to pay child support on the back of this decision he would get the full whack of the law.:mad:

oscarBravo

OP, if you are interested in having a discussion rather than using this forum as a noticeboard, PM me and I'll re-open this.