WHAT ARE HAGUE RIGHTS OF CUSTODY'?

Hague “Rights of Custody” are defined in Article 5 of the Convention

"Article 5

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 limited period of time to a place other than the child's habitual residence."

‘Rights of custody’ includes rights relating to the care of the person of the child, and, in particular, the right to determine the child's place of residence’. ‘Rights of custody’ is a term which is wider than the term ‘custody’ when that word is used alone. In practice the term has been given a wide interpretation, meaning some kind of ‘parental authority’. 

Different legal systems define who has ‘rights of custody’ over a particular child differently. In some countries, unmarried fathers do not automatically have rights of custody, ie. parental authority though they can get these rights by agreement or by court order. In Israel, unmarried biological fathers are automatically one of the child's two natural guardians, with parental authority.

As long as the ‘left behind’ (or 'non-removing') parent was, at the time of the wrongful removal or retention, exercising functions of a parental or custodial nature, in the state asking for the return, that parent is regarded as having ‘rights of custody’ without the need for any court order or official custodial status. 

Under the Convention Hague ‘rights of access’ are treated differently from Hague ‘rights of custody’. A mother with sole custody of the child does not act in breach of the father’s ‘rights of custody’ if he has no parental authority and the access order in his favour does not entitle him to prevent the mother taking the child out of the country. A right to be consulted on where the child should reside but without a power to veto does not amount to ‘rights of custody’ for the purposes of the Convention.

The power to veto the removal of a child from Israel is regarded as part of the right to determine a child’s place of residence – as in article 5 “Hague Rights of Custody”.

This “Ne Exeant” Right is recognized as a uniform threshold standard for allowing a non-custodial parent to bring action for the return of an abducted child under the Hague Convention  (Abbott v Abbott,  US Supreme Court -2010 ).

A  European Court of Justice Case from 2009 also confirmed that Israeli guardianship law includes the right to determine the place of a child’s residence and that a  non-custodial father who has guardianship rights under Israeli law has Article 5 “Hague Rights of Custody”. (Neulinger and Shuruk v. Switzerland (Application No 41615/07)

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