International Child Abduction
If a child is removed from their current home and brought to a different country without the consent of their other parent, it is termed an international parental abduction, and it is illegal. International abduction occurs in instances where a child is:-
- Taken out of the country in which the child and the person who has the legal right to custody normally live.
- Kept in another country where the child is visiting.
An abduction may involve the wrongful removal or the wrongful retention of a child. Section 16 of the Non-Fatal Offences Against the Person Act 1997 establishes the offence in Irish legislation. Under Section 16, it is an offence for any person, including a parent or guardian, to take or send a child under 16 years out of the state:-
- In defiance of a Court Order
- Without the consent of each person who is a guardian, or without the consent of a person to whom custody of the child has been granted by a court, unless the consent was first obtained.
Prevalence of Child Abduction
The problem of child abduction has become more prevalent in recent years due to ease of travel, a larger number of marriages between persons of different nationalities, and a greater incidence of marriage breakdown. In November 2022, the Department of Justice were working to bring home 78 children who had been abducted and taken out of the country. The most common scenario is where one parents takes a child to their country of origin in defiance of the wishes of the other parent. So, what can a parent do to have their child returned?
The Hague Convention
If your child has been removed to another country without your consent to a country which has signed up to the Hague Convention, you can apply to the Irish Central Authority for Child Abduction to have your child returned.
The 1980 ‘Hague Convention of the Civil Aspects of International Child Abduction’ is an agreement which was entered into between various countries which aims to ensure the return of an abducted child to the country where they normally reside so that the issues of access and custody can be determined. It is based on the principle that the Court in the country of the child’s habitual residence is best placed to decide any custody disputes.
Will a Court order the return of my child?
The paramount consideration for a Court is the welfare of the child. Generally, a Court will order the return of your child. However, the court in the country where the child was abducted to can refuse to direct the child’s return on the following basis:-
- If there was no wrongful removal or retention (Article 3 of the 1980 Hague Convention);
- if the left-behind parent was not actually exercising his/her rights of custody at the time of the abduction (Article 13(1)(a) of the 1980 Hague Convention);
- if there is a serious risk that the return would expose the child to physical or psychological harm (Article 13(1)(b) of the 1980 Hague Convention). However, the return cannot be prevented if adequate arrangements have been made to protect the child. If a court finds that the child should not be returned, it must contact the court in the country where the child was abducted from (Article 27(3) of the Brussels IIb Regulation).
- if the child objects to the return (Article 13(2) of the 1980 Hague Convention);
- if the return would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms (Article 20 of the 1980 Hague Convention).
What if the views of my child are unclear?
If your child has found his or herself tied between two parents, Irish case law has illustrated that a child’s opinion must be substantial and clearly considered. For example, in LF v. SC [2022] IEHC 424 Ms Justice Gearty concluded that two children had been wrongfully abducted from England at a time when there were ongoing childcare proceedings in the family Courts in England. In this case, the views of the children lent towards remaining in Ireland, but only one of the children’s views were sufficiently clear. Judge Gearty felt that a child’s objection would have to be more substantial and more clearly considered before it could be considered weighty enough to override the countervailing considerations in favour of return.
Issue of Delay
The enemy of this application is delay. If your child resides in a different country for a period of time, he or she may lose her habitual residency in Ireland, and any future child proceedings will be dealt with in the place where the child now resides. Accordingly, Whelan J in Hampshire Council v Ce and NE concluded ‘In evaluating whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up and assess the degree of connection which the child had with the state in which she resided before the move’.
If your child is now considered a resident in the new state, this will make determining custody and access in your favour difficult. For instance, you will be required to obtain a legal representative in a foreign country, there may be a language barrier, and you will incur the expenses associated with travel. Ultimately, it is in your interests to lessen the time in which your child has to integrate his or herself into a new society.
Who has the final say?
Assuming that the child is returned, then the Court in the country where the child was abducted from will decide on the final outcome as to whether the child can be relocated, taking the evidence and reasoning of the other court into account. The Judge must also hear from the child and both parties. The final ruling by the Court in the country of origin is automatically recognised and enforceable in the other EU country without the need for a declaration of enforceability.
Legal Advice
Please contact our Family Law Team on 01 296 0666 as soon as possible if you are worried that:
- Your child has been abducted from Ireland to overseas;
- Your child has been abducted from overseas and taken to Ireland;
- You are being accused of abducting your child
