International Child Abduction & the Hague Convention14th Jun 2016
International child abduction is not a fresh problem but the incidence of these abductions continue to grow with the ease of international travel, the increase in bi-cultural marriages and the rise in Ireland’s divorce rate.
There are very serious consequences for child abductors whom remove a child from where they are deemed to be habitually resident and cut contact from the parent left behind. The children are most often than not removed in order to transplant them into a different State with a new Culture and often a new language therefore protected by a new legal system. This move can become both problematic and complex.
The Hague Convention on the Civil Aspects of International Child Abduction (1980) is the main convention covering child abduction and has been signed by 81 countries, including Ireland.
Ireland is a signatory to both The Hague and Luxembourg Conventions and both conventions have been incorporated into Irish Domestic Law by the Child Abduction and Custody Orders Act 1991. Article 6 gives the Hague Convention the force of law here.
This Council Regulation (EEC) no. 2201 -2003 which concerns jurisdiction and the recognition along with enforcement of Judgments in parental responsibility matters alongside matrimonial matters, enhances the provisions of the 1980 Hague Convention and relates to children under the age of 18.
In Article 1 the objects of this Convention have been clearly set out as the following:
- To secure the prompt return of children wrongfully removed or retained in any contracting state
- To ensure that rights of custody and access under the law of one Contracting state are effectively respected in other contracting states.
The Convention is based on the principle that the Court of the child’s habitual residence is best placed to decide any custody disputes and also it is based on the presumption that wrongful removal or retention of the child across international boundaries is not in the interests of the child. It recommends the child be returned to their place of habitual residence in order to benefit contact with both parents and preventing unnecessary stress in the child’s life.
In situations where a child has been removed from Ireland without consent to another State whom has signed the Convention one must then apply to the Irish Central Authority for International Child Abduction or to the Central Authority for Child Abduction in the state to which the child has been removed – to request the Childs return promptly.
There are strict rules to be met in order to grant the return of a child under the Convention. One must provide strong evidence that the child was habitually resident in the State which they have been removed from. One must also prove that the removal of the child from the State was in breach of a custody agreement or court order be it pending or not and that the applicant was exercising those parental rights at the time of abduction.
Generally speaking the courts will order the return of the child unless there are issues such as risk in the return of the child to the State deemed habitually resident. In these instance falling under Article 13 the child will not be returned unless the risks have been eliminated or that there have been proven steps showing process of elimination.
Evidence from the Child may be heard and all objections must be considered in these sensitive cases. Children’s refusal to return is only taken into account when the courts can see a level of maturity is present and there is no evidence of psychological issues.
The Courts make decisions based on the Child’s welfare which is of paramount importance in these instances.
We here at Doherty Solicitors, Ennis have dealt with numerous cases under The Hague Convention and should you have any queries in relation to same please feel free to make an appointment to discuss the matter further.