What is Child Abduction?
Child Abduction is a term used to describe the situation where a child is removed from the State where the child usually lives by a parent/guardian without the consent of the other parent/guardian.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) is a Treaty between States that was set up to protect children who have been subject to international child abduction.
The Convention has been agreed by over 90 countries including Ireland.
The aim of the Treaty is to return children to the State where they usually lived prior to their removal and any legal issues arising from the child abduction should be dealt with in the State where the child usually lives.
If the country has not agreed to be bound by the Convention then the legal procedure in relation to the child abduction will be bound by normal rules of private international law.
Will the law recognise that my child has been abducted?
- The person seeking the return of the child must have a right to custody under the law of the State in which the child usually lived prior to the removal.
- Rights of custody must have been exercised prior to the removal.
- The child in question must be younger than 16 years of age
- The child was habitually resident in the State where the person is seeking the child to be returned to.
The main issue that the Courts determine is what State the child is habitually resident in.
Will the Child be returned?
The Courts will usually order the return of the child. However, the Convention provides for exceptional circumstances where a court may refuse the return of the child, including:
- Where there is a grave risk that the return of the child would subject him/her to danger of physical/psychological harm or otherwise place him/her in an intolerable situation;
- Where the child has attained an age and degree of maturity at which it is appropriate to take his/her views into account and the child objects to the return;
- Where the return would amount to a violation of a person’s fundamental human rights.
Other issues which can arise in Child Abduction Proceedings
- Access between the parties and their child(ren) including Skype access;
- Travel costs to facilitate access between States;
- Renewal of Passports and Passport Applications.
Will Brexit affect Child Abduction?
There has been much concern that the area of International Child Abduction as between the UK and the EU will be affected by Brexit. This concern stems from the fact that the key legal provision, Brussels II Revised will no longer be applicable to the UK as it is a European Union Regulation. Brexit should not cause significant change in practical terms of how it will impact on people seeking legal advice, as the Convention will still be applicable to the UK. The Convention is very similar to Brussels II Revised but has simply not been utilised greatly by the UK up until now.
18 January 2017