UK Dad Can Fight for Custody of Baby Brought to India, Judge Recommends

Filed less than six weeks before Brexit, the case may be one of the last involving the United Kingdom that the EU court considers. 

The European Court of Justice in Luxembourg. (Courthouse News photo/Molly Quell)

LUXEMBOURG (CN) — An EU magistrate held Tuesday that the United Kingdom has the right to rule on a custody case involving a child brought by her mother to India. 

If the child was taken outside the EU illegally, member states retain an indefinite right to adjudicate custody cases, regardless of where the child is living, according to the opinion for the European Court of Justice by Advocate General Athanasios Rantos.

“When a child is abducted and removed to a non-Member State, the courts of the Member State in which that child was habitually resident immediately before the wrongful removal or retention retain their jurisdiction, for an unlimited period of time, including where the child acquires its habitual residence in that non-Member State,” Rantos wrote. 

Opinions from advocates general like Rantos are not binding but the Court of Justice follows their reasoning in about 80% of cases.

Rantos weighed in this morning on a case involving a child of Indian nationals who are residents of the United Kingdom. All of the parties’ names are identified as initials in the court record.

The mother, MCP, contends that she fled with her child to India to escape abuse by the child’s father, SS. The couple were never married. It took several tries for the move to stick. They fled first in November 2017 for four months and again for six months in October 2018. MCP had to bring the child back to the United Kingdom for less than two weeks in April 2019 because of Indian immigration rules.

Since then, “the child has remained continuously in India,” according to the Rantos opinion, which says the child, P, is age 3 1/2 today.

MCP has since returned to the United Kingdom, leaving the child with her maternal grandmother. In 2019 she asked the Family Court at Chelmsford for an order “to change jurisdiction of the child.” P’s father, who is now married and raising another child, brought the underlying custody action before the High Court of Justice for England and Wales in August 2020.

That court referred the matter to the Luxembourg-based tribunal in November 2020, and the United Kingdom formally left the political and economic union on December 31, making this one of the last U.K.-based matters the European Court of Justice will consider. For disputes that occurred while the U.K. was still subject to EU law, though, the court will retain jurisdiction.

The EU regulation on parental rights and responsibilities, known as Brussels II, generally gives the member state where the child “habitually resides” jurisdiction in custody-dispute cases.

“I find it difficult to imagine that the objective of deterring child abductions vanishes solely because a child is removed to a non-Member State,” Rantos wrote. “If that were not the case, the parent abducting the child would simply have to go to a non-Member State, which may — incidentally — be in close proximity to a Member State.”

Rantos began his term in October 2020 to fill the vacancy left by the United Kingdom when the country withdrew from the European Union. 

The magistrate said all children residing in the EU have the right to the protections offered by Brussels II. “[Wrongful removal] cannot deprive such a child of the genuine enjoyment of the right to have parental responsibility examined in his or her regard by a court of a Member State,” Rantos wrote.

According to the European Federation for Missing and Sexually Exploited Children, around 1,000 children are the victims of parental abduction in the EU every year, and only around half involving a country outside of the EU. 

The court is expected to issue its final decision later this year. 

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