Child Abduction occurs when one parent seeks to resolve a dispute over children by removing them, without the consent of the other parent, or in the absence of court order, from the country. Abduction is quite a strong word to use when dealing with these types of cases, as generally one thinks of a stranger “abducting” a child, while in fact with such cases, it is commonly the mother or father. It is perhaps more correct to think of this type of act as the “wrongful removal” of a child to a different country.
Most often, this will occur when a parent, not having custody, refuses to return a child to Ireland, following a period of access abroad. Or, in certain situations, a parent may wish to relocate with the child to a different country for personal reasons, and the result is the restriction of access by the other parent with the child.
Because the problem needs to be tackled on an international level, a number of international and EU conventions now operate to restrict the practice of child “abduction” – these are commonly known as the Hague Convention and the Luxembourg Convention, and both were brought into Law in Ireland by the Child Abduction Act 1991. They operate to ensure prompt return of children to the jurisdiction, unless it would be contrary to the child’s welfare to direct such return.
The Civil Law Reform Division acts as the Central Authority in Ireland on international child abduction. You can apply for the return of a child under the Hague Convention if all the following criteria are met:
- The removal or retention was in breach of your rights of custody which were being exercised at that time. Rights of custody under the 1980 Hague Convention include rights relating to the care of a child and, in particular, the right to determine a child’s place of residence. Under Irish law, these rights are vested in the guardians of a child unless a court has ordered otherwise;
- The child is under sixteen;
- The child was habitually resident in Ireland immediately prior to the abduction;
- The child was abducted to or retained in a Hague Convention country at a time when the Convention was in force between Ireland and that country.
Any parent either suspecting an intention to abduct, or believing an abduction has taken place, must act swiftly in obtaining legal advice. These are really tough cases, and take a massive toll on the parent seeking the return of the child. Sometimes long periods of no contact result. Sometimes it can take a long time to locate the child. It is important that the parent obtains good support and advice throughout the process.
In the middle is a child who has an entitlement to contact with both parents, unless it is clearly contrary to their welfare.