Home > Family > England and Wales > 2009-03-27 - High Court of Justice, A v H, [2009] EWHC 636 (Fam)

2009-03-27 - High Court of Justice, A v H, [2009] EWHC 636 (Fam)

Family · England and Wales · Custody · Marriage

Whether father has right to custody under Hague Convention after Islamic marriage (nikah) without official registration

Key facts of the case - The English court received an application from The Hague District Court under the Hague Convention on the Civil Aspects of International Child Abduction 1980. The application concerned M, a child born in London on 11 August 2007. His parents were Muslim, the father, A, being a British national, and the mother, H, being from The Netherlands and a convert to Islam. They knew each other through internet contact and went through an Islamic wedding (nikah) three days after the mother came to England in August 2006, but did not register the marriage for the purposes of English law. On 31 March 2008, the mother, without notice to the father, took M to The Netherlands where they both remained. The mother refused to return with M to England. The father had entered his name on the birth certificate which, under section 111 of the Adoption and Children Act 2002 would have entitled the father to be recognised as having ‘parental responsibility’. If the parties were married to each other, they would both be recognised as having ‘parental responsibility’ (section 3(1) of the Children Act 1989). However, if the father and mother were not married at the time of birth, under section 10 of The Births and Deaths Registration Act 1953 (‘BDRA’), the father’s name could only be entered onto the birth certificate on the joint request of both the mother and the father. The Guidance to Registrars at the time mentioned that if the parents reasonably believed in the validity of their marriage, then the child should be registered. The father had gone alone to the registry and had produced his and the mother’s passports and their Muslim marriage certificate, after which the registrar had entered him as the father of the child. At issue was whether the father had either parental responsibility or an inchoate right of custody and, therefore, whether he would be recognised as having a right of custody for the purposes of art. 3 of the Hague Convention, so as to render M’s removal unlawful.

Main reasoning of the court - Much of the holding of the court turned on the quality of the evidence given by the father and mother. The judge felt that the mother had not known the consequences of the registration i.e. that it would confer parental responsibility upon the father. The judge held that the father’s belief in the validity of the marriage under Islamic law was not the issue. He had to have believed in the validity of their marriage as under English law. He knew that their marriage was not valid under English law. In fact, a nikah was a non-marriage under English law (Ghandi v Patel [2002] 1 FLR 603, [2002] Fam Law 262). The marriage was so short-lived that it did not qualify for the application of presumption of marriage (A-M v A-M (Divorce: Jurisdiction: Validity of Marriage) [2001] 2 FLR 6, [2001] Fam Law 495 and Chief Adjudication Officer v Bath [2000] 1 FCR 419, [2000] 1 FLR 8, [2000] Fam Law 91). The registration on the birth certificate had been made erroneously and against the provisions of the statute, which could not be corrected by the application of the principle of estoppel. The judge further held that the father did not enjoy any inchoate rights of custody either and non-recognition of his right of custody would not amount to a breach of the European Convention of Human Rights, arts. 6, 9, 12 and 14.

Comment - Consistent with other cases known to have been decided in English law, the court here refused to recognise the fact that a Muslim marriage or nikah led to any concrete rights under English law and, by extension, under the Hague Convention. For the remainder of the judgment the court treats the position of the father as commensurable to an unmarried father and evaluates his legal position as to custody in light of that status and not as a married father.