BALBONTIN v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant is a British national, born in 1964 and living in London. He is represented before the Court by Ms. R. Karp, a lawyer practising in London. A. On 18 August 1994 a boy, J, was born to the applicant and Ms C.S., an Italian national. The child's parents were not married and separated towards the end of 1994. The applicant maintained regular contact with J but at no time had a parental responsibility order. J lived with and was cared for by C.S. On 17 February 1997 the applicant issued an application for a parental responsibility order in the Willesden County Court. He also requested a contact order, an order prohibiting C.S. from taking J to Italy and an order that J be known by his correct name. On 3 March 1997 C.S. took J to Italy. On 6 March 1997 the applicant applied to Willesden County Court for a direction that J be returned to the jurisdiction and that the matter be referred to the High Court. On the same date the County Court transferred the matter to the High Court. On 7 March 1997 there was an ex parte hearing before the High Court. The applicant requested the court to grant him parental responsibility. The court observed that his parental rights had not been breached when C.S. took the child to Italy because the applicant did not have parental responsibility. Even if the court were to grant the applicant parental responsibility at that stage, this would not make the removal of the child unlawful ex post facto. The applicant also requested the court under Article 8 of the Child Custody and Abduction Act 1985 to declare that J had been removed from the jurisdiction in breach of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction, because the applicant's custody rights had not been respected. He submitted in this connection that the notion of “custody” should be interpreted broadly by reference to Article 8 of the Convention on Human Rights. However, the court considered that the applicant did not have custody within the meaning of Article 3 of the Hague Convention. In particular, the court considered that the applicant did not have any formal rights of custody in English law and the European Convention on Human Rights had not been incorporated into domestic law. Finally, the applicant sought a declaration in wardship. This would have enabled the applicant to seek an order that J be returned to England and Wales. However, the court declined to make such a declaration on the ground that J had always lived with C.S. and it was inappropriate at that stage to demand that C.S. should return with him to England and Wales so that the applicant could visit him. The applicant was treated differently from married fathers because he did not have parental responsibility. The applicant could issue proceedings in wardship or under the Children Act 1989, serve them on the mother and promptly request the appropriate orders. However, the court stressed that, in the circumstances, it would not make any ex parte orders. The applicant sought leave to appeal. On 24 March 1997 the High Court refused his application. The applicant renewed his application before the Court of Appeal. On 18 April 1997 the Court of Appeal refused the applicant leave to appeal reasoning as follows: The purpose of the Hague Convention was to ensure the speedy return, without lengthy proceedings or inquiries, of children who had been wrongfully removed from the person having their care. However, J was not cared for by the applicant. The applicant simply had contact with him. The applicant's case could be also distinguished from cases where wards of court had been removed from the jurisdiction. In one such case the court had ordered the return to the jurisdiction of a child that had been made a ward of court on the day following its removal. Finally, the mere fact that the applicant had instituted proceedings before the English courts had not resulted in those courts acquiring custody powers over J. This could have happened only if the courts had made an interim custody order. As a matter of fact, the precedent relied on by the applicant in this connection concerned a case where the child had been removed by a mother in favour of whom the courts had previously made an interim custody order in contested proceedings. As a result of all the above, the Court of Appeal considered that the applicant's case was not an appropriate one for an ex parte order. However, the applicant had the possibility of making further applications in the context of contested proceedings. B. Relevant domestic law and practice Section 2 of the Children Act 1989 provides the following: “(1) 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 the child. (2) Where a child's father and mother were not married to each other at the time of his birth - (a) the mother shall have parental responsibility for the child; (b) the father shall not have parental responsibility for the child, unless he acquires it in accordance with the provisions of this Act.” It is within the inherent jurisdiction of the High Court to make children wards of court (wardship jurisdiction). Once a child has been made a ward of court, no important step in its life can be taken without the consent of the court. Section 8 of the Child Abduction and Custody Act 1985 provides the following: “The High Court or Court of Session may, on an application made for the purposes of Article 15 of the Convention by any person appearing to the court to have an interest in the matter, make a declaration or declarator that the removal of any child from, or his retention outside, the United Kingdom was wrongful within the meaning of Article 3 of the Convention.”  The Hague Convention on the Civil Aspects of International Child Abduction provides the following: 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 sub-paragraph (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 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 or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.”