International child abduction is not a new problem, however, the incidence of such abductions continue to grow with the ease of international travel, the increase in bi-cultural marriages and the rise in the divorce rate.
International child abductions have serious consequences for both the child and the left-behind parent - the child is removed, not only from contact with the other parent, but also from his/her home environment and transplanted to a culture with which he/she may have had no prior ties. International abductors move the child to another state with a different legal system, social structure, culture and often, language.
These differences, plus the physical difference generally involved, can make locating, recovering and returning internationally abducted children complex and problematic.
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 these 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.
Ireland also comes under Council Regulation (EEC) No. 2201 – 2003 of the 27th November 2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility. This Regulation enhances the provisions of the 1980 Hague Convention and relates to children under the age of 18.
The objects of the convention are clearly set out in Article 1 - which states:
'(a) To secure the prompt return of children wrongfully removed or retained in any contracting state; and (b) to ensure that rights of custody and access under the law of one contracting state are effectively respected in other contracting states.
The Hague Convention seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return.
This is based on the principle that the court of the child's habitual residence is best-placed to decide any custody disputes.
The Convention is based on the presumption that wrongful removal or retention of the child across international boundaries is not in the interests of the child and that the return of the child to the state of habitual residence will promote his/her best interests by vindicating the right of the child to have contact to both parents and by supporting continuity in the child's life.
Where a child has been removed from Ireland without the parent’s/guardian’s consent to a country that has signed the Hague Convention, you can 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 to have the child returned to you.
Article 6 provides for each Contracting State to designate a 'Central Authority' to discharge the duties which are imposed by the Convention upon such authorities.
In this jurisdiction the Central Authority is the responsibility of the Department of Justice and Equality.
The Central Authority will help in the following ways:
- Completing the application forms
- Arranging for a translation if necessary
- Sending the application to the Central Authority in a different country
- Monitoring the progress of the application and keep the applicant informed
- Making inquiries to assist in locating a child/children removed to Ireland
The cost of actually sending or bringing the child back to the left-behind parent is not covered by the Central Authority.
The restore order is designed to restore the status quo which existed before the wrongful removal or protection and to deprive the wrongful parent of any advantage that might otherwise be gained by the abduction.
The requirements to be met by an applicant for a return order are strict. He/she must establish:
- The child was habitually residing in the other state
- That the removal/retention of the child constituted a breach of custody rights attributed by the law of that state or these rights are the subject of pending proceedings or an application for one of these orders is about to be made
- That the applicant was actually exercising those rights at the time of the wrongful removal or retention
Where a child has been removed or retained to a country that has not signed up to any of the International Treaties, one must contact the Department of Foreign Affairs.
Under The Hague Convention the court will generally order the return of the child unless in situations where one of the exceptions contained in Article 13 of the Convention applies. These include where it can be shown that the child would be at risk and appropriate steps have not been taken to remove this risk. If the court is of the opinion that the child is mature enough, they will consult the child before making a decision.
In these matters the deliberations of the court are subject to the principle that the welfare of the child is paramount. The court has discretion to consider any objections which may be raised in relation to the return of the child. The evidence of the child may be heard and the court may consider reports on the child’s position - for example, welfare reports.
RMM v MD  (Supreme Court) –
'The Convention also provides that the child’s views concerning the essential question of its return or retention may be conclusive, provided it has, according to the competent authorities attained an age and degree of maturity sufficient for its views to be taken into account. In this way, the Convention gives children the possibility of interpreting their own interests.'
However, the court noted that this could be 'dangerous' if it were applied to young people who 'have a clear grasp of the situation but could be suffering from psychological harm if they think they are being forced to choose between two parents.'
They further acknowledged that, given the fact that the Convention applies to all children under 16, it would be unfair to force a child of 15 to return against their will. However, they were unable to determine 'a minimum age at which the views of the child should be taken into account.' The Supreme Court went on to state that this aspect of Article 13 is a separate ground and that the child’s views alone are a sufficient basis on which to refuse a return.
The court concluded that the Hague Convention is quite clear on its face that a child who objects to being returned and who has attained the an age and a degree of maturity is entitled to have his or her view taken into account and that the trial judge was entitled to rely on the child’s view in such a way as to make it clear that the child’s view accorded with other determinations which the trail judge had made in the case as to protect the child’s long term psychology. Thus, it was made clear that it must always be the case that a decision not to return a child to its habitual residence is a decision of the court and that care should be taken that it is not, nor does it appear to be, the decision of the child.
The Central Authority for Child Abduction processed a total of 233 cases in 2010. (Statistics for 2011 are available at www.justice.ie). Of these, 140 were new cases (four more than in 2009), while 93 were ongoing cases carried over from 2009.
Of the 140 new cases involving 193 children, 64 concerned abductions into the State (incoming) from other countries while 76 concerned abductions from the state (outgoing) to other countries. Of the 93 cases still active from the previous year, 53 were incoming and 40 outgoing.
During 2010, a total of 117 incoming cases and 116 outgoing cases were being processed by the Irish Central Authority in liaison with the other national Central Authorities involved.
Of the 140 new applications received by the Irish Central Authority in 2010, 39% (54) involved the United Kingdom; 11% (15) involved Latvia; 9% (13) involved Poland, 24% (34) involved other European countries and 17% (24) other contracting states (i.e. USA Canada; Australia; S. Africa).
The combined total of 233 applications (140 new, 93 ongoing from previous year) being dealt with by the Irish Central Authority in 2010 were made under the relevant international instruments as follows:
117 were made under the Hague Convention;
30 under the Brussels II bis Regulation;
46 under the Hague Convention and the Brussels II bis Regulation;
1 under the Luxembourg Convention and the Brussels II bis Regulation;
3 under the Hague Convention and the Luxembourg Convention;
36 under the Hague Convention, the Brussels II bis Regulation and the Luxembourg Convention.
Incoming cases, i.e. abductions into the state from other countries (117): In 10 of the 117 incoming cases the High Court ordered the return of the children, in four cases the court refused the return of the children and in 14 cases the children were either returned voluntarily or the parties reached an agreement. At the end of the year, 50 cases were awaiting resolution.
Outgoing cases, i.e. abductions from the State to other countries (116): In 15 of the 116 outgoing cases foreign courts ordered the return of the children, in six cases the foreign court refused the return of the child and in nine cases the children were either returned voluntarily or the parties reached an agreement. At the end of the year, 50 cases were awaiting resolution.