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Family Law

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27 MAR 2009

ABDUCTION: AAA v ASH [2009] EWHC 636 (Fam)

(Family Division; Sir Christopher Sumner; 27 March 2009)

The British father and the Dutch mother went through an Islamic wedding in England; both were aware at the time of the ceremony that it would not be recognised as a valid marriage under English law. Subsequently the father went alone to register the child's birth, showing his Moslem marriage certificate as proof that he was married to the mother; the father was duly named as the father on the birth certificate. About 7 months later, the mother removed the child to the Netherlands without the father's knowledge or approval, and refused to return. The father sought the child's summary return. The mother claimed that the removal had not been wrongful, because the father had not in fact held rights of custody. The father relied on the fact that his name appeared on the birth certificate, and also upon provisions legitimising children of a void marriage. The Netherlands requested a determination under Art 15 of the Hague Convention on Abduction from the English court as to whether the mother's removal of the child from England had been wrongful.

The father had not had parental responsibility or rights of custody and the child's removal to the Netherlands had therefore not been wrongful. For a valid registration granting an unmarried father parental responsibility under English law, the unmarried parents had to attend together at the registry, the father was required to state that he was the father of the child, both parents had to ask for the father to be named as the father of the child, and both had to sign the register. As these conditions had not been satisfied, and in particular the mother had not signed the register, there had been no means by which the father could lawfully have been named in the birth certificate as the father. Parental responsibility could only be obtained by an unmarried father if the statutory provisions were complied with. The entry on the birth register was not valid until corrected; the entry had never had any validity. There would have to be clear statutory wording before an incorrect or false document could be held to grant a parent rights that he did not have, and could not have obtained by the means in fact used. The parties' religious marriage had been neither void nor voidable, but a non-marriage, which was simply not recognised in English law. Section 1 of the Legitimacy Act 1976 applied only to void marriages, and not to voidable marriages or to non-marriages. Guidance on s 1 of the 1976 Act issued by the General Register Office was wrong, in that it should refer only to a form of marriage which was bigamous or void, and not also to a form of marriage 'otherwise not recognised by English law'. The couple's relationship had not been long enough to give rise to a presumption of marriage following a marriage ceremony. Neither estoppel nor legitimate expectation was a means by which rights of custody could be acquired, other than by extension to inchoate rights of custody, and there were no inchoate rights of custody. The father had not believed that he had entered into a valid marriage in terms of English law; the child was not the child of a void marriage, and the mother had not attended with him and signed the register, therefore the father had not acquired parental responsibility under Births and Deaths Registration Act 1953, s 10.

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