There has been a marked increase in the abduction of children across international boundaries in recent times. In Ireland figures have reached the highest recorded to date. Ireland dealt with 142 child-abduction cases involving 198 children last year, up from 72 cases involving 112 children in 2002. These statistics do not include children taken to countries outside the remit of both The Hague and Luxembourg conventions. Polish children are involved in the second-highest number of cases, 7%, after the UK on 61%.
Child abduction refers to circumstances whereby a child is removed from the person who has the legal right to custody without that person’s consent. It can occur in two ways –
- A child is unlawfully removed from a country
- A child is unlawfully detained in another country
Such incidences are governed in Europe and Ireland by Council Regulation 2201/2003. The Hague Convention (1980) which deals with the civil aspects of international Child Abduction and the Hague Convention (1996) which has as its aim the protection of children, continue to apply in cases where the Regulation does not. In the case of countries which are not party to the international Conventions, decisions are made on the basis of private international law.
The Child Abduction and Enforcement of Court Orders Act 1991 brought the Luxembourg and Hague Conventions into Irish law. The Hague Convention can operate if there is no Court Order in place and the child is taken without consent. The Luxembourg Convention operates where there is a valid Court Order determining custody and it provides for the recognition and enforcement of such Orders.
The immediate aim in all cases of child abduction is the return of the child to his/her habitual residence as soon as possible. The Courts of the member state where the child is habitually resident are the appropriate Courts to decide on what is in the child’s best interest.
Article 11 of the Regulations applies to situations where the parent with custody remaining in the home member state requests the return of the child. Such a person may apply to the member state to return the child who has been wrongfully removed/retained. The child must be given the opportunity to be heard during the proceedings, unless, having regard to his or her age or maturity this is deemed inappropriate. Guidelines adopted for determining same are explored in the case of MN v RN. A member state must issue its judgment within six weeks of the filing of the application to have the child returned.
A Court may refuse to return a child on the basis of the Hague convention unless it is established that adequate arrangements have been made to secure the protection of the child after his or her return. However despite such a judgment of non-return, any subsequent judgment requiring the return of the child issued by the Court having jurisdiction under the Regulations shall be enforceable.
A Court cannot refuse to return a child unless the person requesting the return has had the opportunity to be heard. When a Court has ordered that a child not be returned the Court must transmit a copy of the non-return order to the Court of the jurisdiction or the central authority where the child had habitual residency. All parties must be invited to make submissions within three months.
If a child is abducted into Ireland, the Department of Justice and Equality may ask the Legal Aid Board to take proceedings in the High Court. It is possible to negotiate a voluntary settlement of such issues. If a child has been abducted out of Ireland, the Central Authority will assist the parent in returning the child by liaising with the Central Authorities of other States. This firm was recently involved in a case, in which we acted on behalf of the Guardian ad Litem for a child in the care of the HSE, where after liaisons between Central Authorities and child protection services, the child was retuned voluntarily.
The abduction of a child is a criminal offence in Ireland. The sentencing by His Honour Judge McCartan in the case of the DPP-v-Moustafa Ismaeil in July 2011 displays the serious view adopted by the criminal courts with such offences. Mr Ismaeil was sentenced to a 6year sentence for removing his nephew from the State. This sentence was subsequently upheld by the Court of Criminal Appeal.
If you fear your child may be removed from Ireland it is recommended that you seek to obtain a Court Order for custody or joint custody and an Order restraining the removal of the child from Ireland without your consent or the consent of the Court. If you are unmarried an application for Guardianship of your child should be made. In cases of child abduction, private family law lawyers can be instructed where parents do not seek to avail of or do not qualify for Legal Aid.
For more information, please contact any of the following from our Child Care Law Department:
18 November 2012