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I. (H.) v. G. (M.) [1998] IEHC 159; [1999] 2 ILRM 1 (5th November, 1998)

THE HIGH COURT

1997 10 M

1IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991

AND IN THE MATTER OF H. I. (A MINOR)

BETWEEN

H. I.

PLAINTIFF

AND

M. G.

DEFENDANT

Judgment of Ms. Justice Laffoy delivered on 5th November, 1998

THE FACTS

1. In 1989 the Plaintiff, who was originally from Egypt but at the time was living and carrying on a business in partnership in New York, met the Defendant in New York. At the time the Defendant was in the United States of America on a visitor's visa, her home being in this jurisdiction. A relationship developed between the Plaintiff and the Defendant which ultimately led to the Plaintiff and the Defendant going through a ceremony of marriage under Islamic law in New York on 5th March, 1991. It is common case that marriage is not recognised as a valid marriage in accordance with the civil law of the State of New York or the law of the United States of America.

2. On 13th July, 1991 the Defendant gave birth to a son in New York whose birth was registered in New York under the name H. I., his mother's name being shown on the birth certificate as M. J. G. and his father's name being given as H. I. The Defendant has averred in an affidavit sworn by her in these proceedings that it has always been her intention to register the birth of her son under the name of G., but the Plaintiff, without her consent, proceeded to register the birth in the name of H. I. However, in these proceedings the Defendant has acknowledged that the Plaintiff is the natural father of her son, who has always been known as S.

3. For the first five and half years of S.'s life, he and his parents lived as a family unit in the State of New York. It is common case that S., who is a United States citizen, was habitually resident in the State of New York at all times prior to 3rd February, 1997.

4. At the end of December, 1996 the Defendant left the home at Long Island, New York, in which she and the Plaintiff had previously resided with S. She took S. with her and took up residence elsewhere in the State of New York. On 3rd February, 1997 she left New York, taking S. with her, and returned to Ireland where she took up residence in the home of her parents in Dublin. In these proceedings the Defendant has averred that she finally entered the United States of America via Canada on a two day visitor's visa on 19th January, 1991 and that between that date and 3rd February, 1997 her status was that of an illegal alien living and working in the United States of America.

5. After she left the home in Long Island at the end of December 1996 the Defendant invoked the jurisdiction of the Family Court of the State of New York, County of Nassau. On 31st December, 1996 a protection order was made in her favour on foot of an ex parte application in proceedings entitled "M. G., Petitioner v. H. I., Respondent" (docket no. 096.3415). In that order it was ordered that temporary custody of S. should be awarded to the Defendant. Subsequently, at some time after 7th January, 1997 the Defendant initiated further proceedings in the family court in the State of New York, County of Nassau entitled "M. G., Petitioner v. H. I., Respondent" (Index no. V97/46). This was a petition for custody in which the Plaintiff, who was a respondent, was stated to be the putative father of S. Paragraph 10 of the pro forma petition was in the following terms:-

"(An Order of Filiation) (A Paternity acknowledgement) is being filed by the Family Court of Nassau County on , docket no. , concerning the Petitioner and the Respondent and the child who is the subject of this proceeding. A true copy is annexed hereto."

6. The words to which I have added emphasis were added in manuscript to the standard form paragraph 10. There was no copy document annexed to the exhibited copy of the petition. Paragraph 4, which had earlier named the Plaintiff in these proceedings as the putative father, had also contained the following words in manuscript:-

"Paternity being filed 1-9-97".

7. The petition was verified by affidavit sworn by the Defendant on 7th January, 1997.

8. The Plaintiff also instituted proceedings in the Family Court in the State of New York, County of Nassau. He brought a petition for visitation against the Defendant (docket no. 97/18), which was verified by an affidavit sworn by him on 3rd January, 1997. In the petition, he described himself as the father of S. and he stated that he was married to the Defendant and that the marriage was a "Muslim religious ceremony". As regards paragraph 10 of this pro forma petition, which was in turn similar to paragraph 10 of the Defendant's custody petition, the Plaintiff qua petitioner indicated that it was not applicable. The existence of the temporary custody order was disclosed.

9. On 26th February, 1997 an order was made by Judge Pudalov to whom, apparently, the custody petition and the visitation petition had been assigned, directing that Sam should be produced before Judge Pudalov on 26th March, 1997. There was an attendance by the Defendant's attorney before Judge Pudalov when this order was made and the order was expressed to be made "upon the consent of all parties". However, in these proceedings the Defendant has averred that she had no notice of the application before Judge Pudalov on 26th February, 1997 and that she had not instructed her attorney to appear for her or to consent to the order on her behalf. The Defendant had left the jurisdiction of Judge Pudalov's court with S. three weeks previously and the only reasonable inference is that the order was sought and made because it had become apparent that she had left the jurisdiction of the Family Court of the State of New York.

10. There is one further document which has been handed into court which it is necessary to refer to. That document is a photocopy of a document entitled "Paternity Petition (Mother)" in a proceeding apparently intended to be entitled "M. J. G., Petitioner v. H. A. I., Respondent". It would appear to be a copy of a petition signed by the Defendant qua petitioner on 9th January, 1997 and verified by affidavit of the Defendant on the same day. However, this document is not authenticated in any way as being a document emanating from the Family Court of the State of New York nor has it been exhibited in any affidavit filed in the proceedings. I accept the submission of Ms. Stewart on behalf of the Defendant that there is no evidence that, even if it is authentic, it was ever filed and that it is of no evidential value.

THE ISSUE

11. In these proceedings, which were initiated by special summons which issued on 20th March, 1997, the Plaintiff, inter alia, seeks an Order pursuant to Article 12 of the Convention on the Civil Aspects on International Child Abduction (the Hague Convention) directing the return forthwith of S. to the jurisdiction of the courts of the State of New York. The Defendant contends that the Plaintiff does not have any cause of action under the Hague Convention and the parties have agreed that whether this contention is well founded should be determined as a preliminary issue. This judgment is concerned with that issue.

PROVISIONS OF THE HAGUE CONVENTION

12. Article 8 of the Hague Convention provides as follows:-

"Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child."

13. In this case, the Plaintiff did not follow the more usual course and channel his application through the Central Authority in Washington D.C. He came to this jurisdiction in March 1997 and applied to the Central Authority in this jurisdiction for assistance in securing the return of S.

14. The Defendant's contention that the Plaintiff does not have a cause of action under the Hague Convention is based on the assertion that S. was not removed from New York "in breach of custody rights".

15. Article 3 of the Hague Convention provides as follows:-

"The removal or 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."

16. Article 5 of the Hague Convention defines the expressions "rights of custody" and "rights of access" and provides:-

"For the purposes of this Convention:-

(a) 'Rights of Custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

(b) 'Rights of Access' shall include the right to take a child for a period of time to a place other than the child's habitual residence."

17. The issue to be determined is whether the removal of S. from the State of New York on 3rd February, 1997 was "in breach of rights of custody attributed to a person, an institution or any other body" under the law of the State of New York.

EVIDENCE OF FOREIGN LAW

18. Three affidavits, the purpose of which ostensibly is to set out the law of the State of New York pertinent to the issue to be determined by the court, have been filed in these proceedings. One would have thought it would be a relatively simple matter to set out the status under the law of the State of New York of a person in the Plaintiff's position as regards custody of and access to a child in the position of S. - in short, the legal position of a natural father in relation to custody of a child where paternity is not disputed and, indeed, is acknowledged by both the mother and the natural father, who are not and never has been married to each other in a manner recognised by the civil law of that State. Unfortunately, it is difficult to extrapolate a clear cut exposition of the Plaintiff's position in relation to custody of S. on 3rd February, 1997 from the three affidavits filed and they disclose a welter of conflict.

19. An affidavit sworn on 11th May, 1998 by Timothy J. Horgan, an attorney duly admitted to practice before the courts of the State of New York, has been filed on behalf of the Plaintiff. Two affidavits sworn respectively on 25th February, 1998 and 29th June, 1998 by Paul O'Dwyer, a lawyer admitted to practice law in New York and Ireland, have been filed on behalf of the Defendant. There is no controversy as to the expertise of either Mr. Horgan and Mr. O'Dwyer to depose to the law of the State of New York.

20. In his affidavit Mr. Horgan averred as follows:-

"New York will recognise the agreement of parties to live in a certain manner, notwithstanding the parties have not sought civil confirmation of their living arrangement. In this case, the parties were married under Islamic law and issued an Islamic marriage certificate. While this does not mean that they were married in the eyes of New York State, they evidently did choose to live as husband and wife, father and mother, and no New York court will interfere with the relationship established......

Notwithstanding their disputes of late, the parties herein had a long-standing modus vivendi on all custodial decisions affecting the child. Certainly, it did not contemplate removing the child outside his home jurisdiction of New York. More particularly, the parties' oral agreement regarding custodial matters which is undisputed and endured for five years until December 1996, is an agreement given legal effect under New York law, creating 'rights of custody' under the Hague Convention with respect to the child."

21. Later in his affidavit Mr. Horgan averred as follows:-

"In the case at hand, it is clear that prior to the month of February 1997 the child lived at the marital residence located at...... New York and enjoyed a strong relationship with both parents. In January 1997 the parties filed custody claims against each other in Family Court, Nassau County, State of New York. While the mother was granted temporary custody pending a further hearing, she wilfully flouted the authority of the New York Family Court by fleeing New York and not appearing before the New York Family Court on March 26th, 1997. It is clear that the father had rights of custody at the time of the departure. The fact that the child was illegitimate and the parties were not wedded in a civil ceremony is irrelevant to the father's right of custody as the natural father..... It is equally clear under the laws of the State of New York that those rights are continuing....."

22. Mr. Horgan also averred that it is the undisputed law of New York State that in determining the issue of custody, the sole consideration is "what is in the best interests of the child". Furthermore, he averred that neither parent has a prima facie right to custody under New York law, citing Section 240 of the Domestic Relations Law. His conclusion was that the Plaintiff has a clear right under New York law "to apply for custody of his child".

23. In his first Affidavit sworn on 25th February, 1998, Mr. O'Dwyer averred as follows:-

"Without an adjudication of paternity, New York State Courts cannot award custody or visitation to an unmarried father, for the following reasons:-

With regard to custody, New York law provides that both parents have a prima facie right to custody, Domestic Relations Law Section 240. Any statutory provision favouring one parent over another by virtue of the parent's gender would violate the equal protection clause of the U.S. Constitution according to the U.S. Supreme Court in Stanley -v- Illinois , 405 U.S. 645 (1972).

..... Parents have a right to custody of their children superior to that of all others, and a parent cannot be deprived of that right to custody absent as showing of unfitness, Stanley -v- Illinois , supra....

Consequently, to grant custody of a child to an unmarried father without a prior adjudication of paternity would violate the principle that a parent may not be deprived of custody by a non-parent absent a showing of unfitness. Therefore, as a matter of practice, a New York State Court will not entertain a custody petition filed by an unmarried father unless a paternity petition is filed at the same time, as the Court could not grant the relief requested absent an adjudication of paternity.

..... As with petitions for custody, an unmarried father must not only plead but also prove that he is the father of a child in order for a Court to grant his visitation rights. Again, as a matter of practice, a New York State Court will not entertain an application for visitation by an unmarried father unless a petition for paternity is filed at the same time, absent a prior adjudication of paternity......

In New York a right of custody carries with it the right to determine the child's place of residence. Absent any adjudication of paternity and either established visitation or custodial rights, an unmarried father has no rights whatsoever to determine the child's place of residence.....".

24. Mr. O'Dwyer also averred that being named as a father on a child's birth certificate under the law of the State of New York does not confer a standing to commence a custody or visitation proceeding. His conclusion was that under New York law, the Plaintiff has no standing to seek either custody of or visitation with S., is a legal stranger to S. and has acquired no rights as a result of the New York proceedings.

25. Mr. O'Dwyer's second Affidavit sworn on 29th June, 1998 was deliberately framed in response to Mr. Horgan's Affidavit of 9th May, 1998. Mr. O'Dwyer averred in his second Affidavit that, contrary to the assertion by Mr. Horgan, New York Courts do not recognise private domestic arrangements among adults to live together as husband and wife, commonly known as common-law marriages. He specifically stated there is no legal opinion, decision or statutory provision to support the proposition of Mr. Horgan which I have first quoted above, which he characterised as a "blatantly false proposition". He asserted that the only rights of custody which the Plaintiff might possess would arise strictly by operation of statute, as they could not arise under common law. Mr. O'Dwyer reiterated that neither the provisions of the Domestic Relations Law, Section 240.1 nor the Family Court Act, Section 549(a) give the Plaintiff any rights of custody with regard to S. He then averred as follows:-

"Once the parties are married, or there has been a legal adjudication of paternity by the unmarried father, the only issue before the Court in a custody dispute is the best interests of the child. Prior to an adjudication of paternity, however, the custody dispute between the mother and a person not legally adjudicated as the child's father is essentially a dispute between the mother and a legal stranger to the child. Under such a situation, there must be a finding of extraordinary circumstances to allow such a legal stranger to seek custody of the child. To find otherwise and to grant immediate standing to any person to seek custody of a child would undermine the natural rights of the parent."

26. In his earlier Affidavit Mr. O'Dwyer had explained that there are two statutes in force in New York State dealing with custody issues in relation to children: the Domestic Relations Law and the Family Court Act. In his second Affidavit he explained the difference between the two statutes. The Domestic Relations Law is primarily, although not exclusively, addressed to the legal dissolution of a marriage, while the Family Court Act is primarily, although not exclusively, addressed to the concerns of children in need of protection. In his second Affidavit Mr. O'Dwyer quoted the provisions of Section 240.1 of the Domestic Relations Law and Section 549(a) of the Family Court Act, the latter being in the following terms:-

"If an order of filiation is made or if a paternity agreement or compromise is approved by the Court, in the absence of an order of custody or visitation entered by the Supreme Court, the Family Court may make an order of custody or visitation in accordance with sub-division (1) of section 240 of the Domestic Relations Law, requiring one parent to permit the other to visit the child or children at stated periods."

27. Mr. O'Dwyer went on to aver as follows:-

"Thus, in the absence of an order of filiation, a person not married to the child's mother is not in the position to exercise rights of custody, including a right to determine the child's place of residence."

28. Later, in his second Affidavit, Mr. O'Dwyer averred as follows:-

"As the Plaintiff in this action is not the child's father either as a result of being married to the mother or as a result of an order of filiation having been entered by the Family Court, the Plaintiff lacks standing to exercise any rights of custody or visitation, and has no rights to determine the child's place of residence. Any assertion to the contrary by Mr. Horgan is simply incorrect."

29. Mr. O'Dwyer reasserted that the Plaintiff has not even instituted a paternity proceeding to declare himself the father, which he described as "a necessary prerequisite to the institution by him of a custody or visitation proceeding". He concluded that, therefore, the Plaintiff simply did not have lawful rights of custody at the time the child was brought to this jurisdiction by the Defendant.

THE PLAINTIFF'S SUBMISSIONS

30. On behalf of the Plaintiff Ms. Whelan submitted that S.'s removal to Ireland by the Defendant on 3rd February, 1997 was "in breach of rights of custody attributed to a person, an institution or any other body" on three bases.

31. First, she argued that it was open to the Court to conclude, on the basis of the evidence of the law of the State of New York before the Court, that on 3rd February, 1997 the Plaintiff had rights of custody in relation to S. under that law. While she conceded that there is a conflict of evidence between the experts, Mr. Horgan and Mr. O'Dwyer, she argued that the Court could resolve that conflict. She referred to the decision of the Supreme Court in McNamara -v- Owners of SS "Hatteras" , (1933) I.R. 675 and in particular to the following passage from the judgment of Fitzgibbon J. at page 699:-

"But if the evidence of the experts is conflicting, either as to the text of the law, or as to its interpretation, or as to the way in which the question at issue would be decided by the foreign court which might have to administer the law, then the Court must make up its own mind as best it can, using the material at its disposal, and deciding between the experts as it would have to do if they were giving their opinion upon any scientific question."

32. Ms. Whelan submitted that the evidence as to the law of the State of New York does not establish that a declaration of paternity is a condition precedent to the existence of rights of custody in a natural father who is not married to the child's mother.

33. The second proposition advanced by Ms. Whelan related to the manner in which this Court should construe the expression "rights of custody" in the Hague Convention. She submitted that this Court should adopt the same approach as was adopted by the Court of Appeal in Re. B. (A Minor) (Abduction) , 1994 2 F.L.R. 249. In that case, Waite L.J. made the following observations on the meaning of "rights of custody" in the Hague Convention at page 260:-

"The purposes of the Hague Convention were, in part at least, humanitarian. The objective is to spare children already suffering the effects of breakdown in their parents' relationship the further disruption which is suffered when they are taken arbitrarily by one parent from their settled environment and moved to another country for the sake of finding there a supposedly more sympathetic forum or a more congenial base. The expression 'rights of custody' when used in the Convention therefore needs to be construed in the sense that will best accord with that objective. In most cases, that will involve giving the term the widest sense possible.

There is no difficulty about giving a broad connotation to the word 'custody'.....

34. The difficulty lies in fixing the limits of the concept of "rights". Is it to be confined to what lawyers would instantly recognise as established rights - that is to say those which are propounded by law or conferred by court order: or is it capable of being applied in a Convention context to describe the inchoate rights of those who are carrying out duties and enjoying privileges of a custodial or parental character which, though not yet formally recognised or granted by law, a court would nevertheless be likely to uphold in the interests of the child concerned.

35. The answer to that question must, in my judgment, depend upon the circumstances of each case. If before the child's abduction the aggrieved parent was exercising functions in the requesting State of a parental or custodial nature without the benefit of any court order or official custodial status, it must in every case be a question for the courts of the requested State to determine whether those functions fall to be regarded as 'rights of custody' within the terms of the Convention. At one end of the scale is (for example) a transient cohabitee of the sole legal custodian whose status and functions would be unlikely to be regarded as qualifying for recognition as carrying Convention rights. The opposite would be true, at the other end of the scale, of a relative or friend who has assumed the role of a substitute parent in place of the legal custodian."

36. Ms. Whelan submitted that even if the Plaintiff did not have "rights of custody" in the narrow sense under the law of the State of New York, he did have "rights of custody" within the terms of the Hague Convention. For the first five and a half years of S.'s life the Plaintiff was exercising functions in the State of New York of a parental or custodial nature jointly with the Defendant. The exercise of those functions was unilaterally terminated by the Defendant at a time when the U.S. Courts were seised of custody and access issues in relation to S. Given that the Defendant acknowledges that the Plaintiff is S.'s father and that he had assumed obligations and enjoyed privileges of a custodial or parental character, he had inchoate rights which, it was submitted, even if not formally recognised or granted by law on 3rd February, 1997, would nevertheless be likely to be upheld in the interests of S.

37. The third basis on which Ms. Whelan submitted that the case comes within the ambit of the Hague Convention is that the removal of S. from the State of New York on 3rd February, 1997 was in breach of custody rights vested in the Family Court of the State of New York. In support of this submission Ms. Whelan cited three decisions of the English Courts: the decision of the Family Division of the High Court in Re. H. (A minor) (Abduction) , (1990) 2 F.L.R. 439; the decision of the Court of Appeal in B. -v- B. (Abduction) , (1993) 1 F.L.R. 238; and the decision of the Family Division of the High Court in The Ontario Court -v- M. & M. (Abduction: Children's Objections) , (1997) 1 F.L.R. 475. In the second of the three cases there were divorce proceedings on the petition of the father pending in the Ontario Court when the child was removed from Canada to England by the mother. Prior to the removal of the child and pending the substantive hearing, interim custody had been granted to the mother with liberal interim access to the father. The mother had stated in an affidavit that she would not leave the jurisdiction without a Court Order and an Order had been made that the child was not to be removed from the jurisdiction of the Ontario Court without such an order. Ms. Whelan relied in particular on the following passage from the judgment of Sir Stephen Brown P. at page 243:-

"In my view this was the plainest example of an unlawful removal..... It seems to me that the Court itself had a right of custody at this time in the sense that it had the right to determine the child's place of residence, and it was in breach of that right that the mother removed the child from its place of habitual residence......"

THE DEFENDANT'S SUBMISSIONS

38. On behalf of the Defendant, Ms. Stewart submitted that the Plaintiff has not discharged the onus of establishing that he comes within the ambit of the Hague Convention.

39. First, she contended that, on the basis of the expert evidence, under the law of the State of New York, the Plaintiff, as the natural father of a non marital child, has no legal status and no rights of custody in respect of the child until such rights are conferred by a court. The establishment of paternity is a necessary technical proof before rights of custody can be conferred by a court in the State of New York on the natural father of a non marital child. The Plaintiff, not having established paternity and not having been conferred with rights of custody by the Family Court of the State of New York, under the law of that State he had and has no say as to the place of residence of S. She conceded, however, that in the instant case, the establishment of paternity by the Plaintiff would be a mere formality.

40. Secondly, Ms. Stewart submitted that the court should not adopt the approach adopted by the Court of Appeal in Re. B (A Minor) (Abduction) , which she argued was at variance with the approach adopted by the House of Lords in Re. J (A Minor) (Abduction: Custody Rights) (1990) 2 A.C. 562 . In each of those cases the law of the habitual residence of the child in question was the law of Western Australia and the governing statutory provision was Section 35 of the Family Court Act, 1975 (Western Australia), a non-federal statute. In the latter case, the issue of alleged wrongful removal was dealt with by Lord Brandon of Oakwood in the following terms:-

"It seems to me, however, that since Section 35 of the Family Law Act, 1975-1979 of Western Australia, as amended, gave the mother alone the custody and guardianship of J., and no order of a court to the contrary had been obtained by the father before the removal took place, the father had no custody rights relating to J. of which the removal of J. by the mother could be a breach. It is no doubt true that, while the mother and father were living together with J. in their jointly owned home in Western Australia, the de facto custody of J. was exercised by them jointly. So far as the legal rights of custody are concerned, however, these belonged to the mother alone, and included in those rights was the right to decide where J. should reside. It follows, in my opinion, that the removal of J. by the mother was not wrongful within the meaning of Article 3 of the Convention".

41. The foregoing passage from the speech of Lord Brandon was quoted in the judgment of Waite L. J. in Re. B (A Minor) (Abduction) . For her part Ms. Whelan was happy to adopt the following passage from the judgment of Waite L.J. in Re. B (A Minor) (Abduction) at page 262, in which Re. J. was distinguished, in reply to Ms. Stewart's submission:-

"It follows that I would reject the submission that the present case is indistinguishable on its facts from those of Re. J. Nor is there any principle to be deduced from the decision in that case which would require the father in the present case to be treated, notwithstanding his very different circumstances, as a party who had been merely exercising what Lord Brandon described as 'de facto custody".

42. Thirdly, Ms. Stewart submitted that the decisions of the English Courts in Re. H. (A Minor) (Abduction) and in Re. B. -v- B. (Abduction) are distinguishable. In each of those cases, the court in the requesting State, the Ontario court, had made an order that the child was not to be removed from Ontario without the leave of the Ontario court and the finding of wrongful removal was based on the breach of the restriction imposed by the Ontario court. In the instant case, it was submitted, on 3rd February, 1997, the Defendant had sole right of custody of S. under the temporary custody order and she was not inhibited in any way by the Family Court of Nassau County from changing S.'s place of residence. In particular, no significance should be attached, it was submitted, to the fact that the custody order embodied in the protection order of 31st December, 1996 was described as temporary.

CONCLUSIONS

43. Having considered the totality of the expert evidence on the applicable law of the State of New York, I cannot be satisfied that the Plaintiff has established that, as the natural father of a non marital child who had not obtained any order in his favour from the court of the habitual residence of the child, the court of the State of New York, he had on 3rd February, 1997 established rights of custody in respect of S. under that law. Making up my own mind as best I can on the basis of the evidence before me, it seems to me that the correct position is that under the law of the State of New York the mother of a non marital child has sole right of custody of the child until such time as an order of filiation is made or a paternity agreement or compromise is approved by the court. That paragraph 10 of the Plaintiff's petition for visitation and the same paragraph of the Defendant's petition for custody filed before the Family Court of the State of New York so nearly mirror the wording of Section 549(a) of the Family Court Act, as quoted by Mr. O'Dwyer in his second affidavit, strongly suggests that this is the correct interpretation of the evidence. The position appears to be that once paternity is established by a filiation order or by a court approved paternity acknowledgement or agreement, both parents have a prima facie right to custody, gender constituting neither an advantage nor a disadvantage, and, where an issue arises between the parents, the entitlement to custody is determined by the court applying the "best interests" test.

44. Although, on the basis of that finding as to the effect of the applicable law of the State of New York, I am not satisfied that on 3rd February, 1997 the Plaintiff had established rights of custody in the sense of rights which had crystallised by virtue of a finding or an approved acknowledgement of paternity by a court of competent jurisdiction, I consider that, in applying the Hague Convention, further considerations arise - the considerations adumbrated in the passage from the judgment of Waite LJ quoted above. Those considerations raise a number of questions in this case. Should I have regard to the fact that the Defendant has never disputed the Plaintiff's paternity and, as I have said, has acknowledged it at all material times and, in effect, acknowledged it in her submission to the jurisdiction of the Family Court of the State of New York? Moreover, should I have regard to the fact that, as has been conceded, obtaining judicial imprimatur of paternity from a New York Court would have been a mere formality had the Defendant not removed S. from New York, thereby halting the custody and access proceedings in the Family Court of the State of New York?

45. In my view, the significant factor in this case is that both the Plaintiff and the Defendant, in invoking the jurisdiction of the court of S.'s habitual residence, acknowledged the Plaintiff's paternity of S. It seems to me inconceivable that, had the proceedings in the Family Court of the State of New York not been interrupted by the Defendant leaving the jurisdiction of that court with S., approval would not have been given to the acknowledgement of paternity. Indeed, the New York Court entertained the Plaintiff's petition, at least to the extent of making the order of 26th February, 1997 on foot of it. Therefore, but for the Defendant's conduct in absenting herself from the State of New York, it seems almost inevitable that the Family Law Court would have approved the acknowledgement of paternity, whereupon under the law of that State both parents, the Plaintiff and the Defendant, would have a prima facie right to custody. The existence of the temporary custody order made on 31st December, 1996, which was made on foot of an ex parte application, does not affect that conclusion.

46. In the particular circumstances of this case, in my view, the Plaintiff is not merely relying on de facto custody of S. jointly with the Defendant for the first five and a half years of S.'s life. He acknowledges and the Defendant acknowledges that he is S.'s father and both parties have acknowledged that fact before the court of S.'s habitual residence in their respective petitions. In my view, the inchoate rights of the Plaintiff to custody which would almost inevitably have crystallised into established rights by court approval of the acknowledgements of paternity are "rights of custody" within the meaning of Article 3 of the Hague Convention. Accordingly, the Plaintiff is entitled to invoke the Hague Convention and pursue his claim under Article 12 thereof.

47. While it is not strictly speaking necessary to comment on the third proposition advanced by Ms. Whelan, that the removal of S. to this jurisdiction was in breach of rights of custody attributable to an institution, namely, the Family Court of the State of New York, for completeness, I should perhaps say that I do not accept this argument. At the time S. was removed from New York, that court had made no order, other than to grant temporary custody to the Defendant, and had not imposed any restriction whatever on the Defendant relocating outside the State of New York with S. Moreover, there is no evidence before this Court as to what the attitude of the New York Court is and, in this regard, in my view, is of particular significance that the Plaintiff's application did not come through the Central Authority of the United States of America.

DELAY

48. Finally, over twenty-one months have elapsed since S. was removed from his place of habitual residence to this jurisdiction. It is a matter of concern that a preliminary issue as to the entitlement of the Plaintiff to invoke the Hague Convention is only being determined at this juncture. However, delay does not go to the issue which I have been asked to determine, although it may be of importance in the determination of the Plaintiff's claim under Article 12.