A recent Irish Supreme Court case shows the potentially ever-expanding scope of "rights of custody" under the Hague Abduction Convention and EC Regulation 2201/2003, a.k.a., Brussels IIbis.
In J. McB. v. L.E., the Irish Supreme Court referred a question to the Court of Justice of the European Union ("Court of Justice" or "CJ"):
[Does the European Conventon on Human Rights] preclude a Member State from requiring by its law that the father of a child who is not married to the mother shall have obtained an order of a court of competent jurisdiction granting him custody in order to qualify as having “custody rights" [as defined by Brussels IIbis]?
This question underlies what is, I think, the substantive issue in the case.
You see, Irish law provides unmarried fathers the right to apply for guardianship over their children. However, the father in this case did not apply before the mother removed the child to England. The father sought the child's return to Ireland from an English court, but the English court, under Brussels IIbis Article 15, asked the Irish court whether the removal violated the father's rights of custody.
Though he had no rights of custody at the time of the removal, the father argued that his right to apply for guardianship was an inchoate custody right--like a ne exeat provision--that would trigger the child's immediate return under Brussels IIbis.
While the Irish Supreme Court's referral focused on the fundamental right to family life that the father claimed under the ECHR, the CJ may find a way to rule on the scope of "rights of custody"--namely whether the right to apply for guardianship is an inchoate custody right.
We--and the family--will have to wait and see how the Court of Justice responds.