When a child is removed from the person who has the legal right to custody of the child without that person’s consent it is called child abduction. When the child is taken out of the country or is kept in another country where he or she is visiting it is called international child abduction. There are two main aspects to international child abduction as follows:
•International child abduction is a criminal offence in Ireland. A parent or anyone else who unlawfully abducts a child may be convicted of the offence. (See “Criminal offence” below)
•The question of arranging for the return of a child who has been abducted internationally is governed by international law. There are international Conventions and a European Union (EU) Regulation which set out the rules that apply. The EU Regulation applies to an abduction from one EU member state to another. An international Convention applies to cases to which the EU Regulation does not apply. (See “Return of the child” below)
What is child abduction?
Child abduction is the term used to describe a situation where a child is removed from the person who has the legal right to custody without that person’s consent. International child abduction occurs when a child is:
•Taken out of the country in which the child and the person who has the legal right to custody normally live (the child is unlawfully removed from a country).
•Kept in another country where the child is visiting (the child is unlawfully retained in a country).
The abductor may be any person but frequently it is one of the child’s parents.
For example, a child who is in the custody of his mother in Ireland and who is visited here by his father may be abducted from here and unlawfully removed by his father. A child who is in the custody of his father in Ireland may go to visit his mother in the USA and, if she keeps him there beyond the agreed visiting time, he has been abducted and is unlawfully retained by his mother. So, an abduction may involve the wrongful removal or the wrongful retention of a child.
The Non-Fatal Offences against the Person Act 1997 deals with the crime of international child abduction.
Section 16 of the Act applies if you are a parent, guardian or a person to whom custody of the child has been granted by a court. It does not apply to you if you are a parent who is not a guardian of the child. It applies if you unlawfully send or keep a child under the age of 16 out of the State or if you cause a child to be unlawfully taken, sent or kept. Unlawfully means in defiance of a court order or without the consent of the other parent or guardian.
Section 17 applies to people who are not covered by Section 16 and who unlawfully detain a child or cause a child to be detained.
Return of the child
The main concern in international child abduction cases is the return of the child. The international conventions and the EU Regulation which govern the return of the child are all based on similar principles. They are:
•The child should be returned to his/her habitual residence as soon as possible.
•The courts of the jurisdiction in which the child is habitually resident are the appropriate courts to decide what is in the best interests of the child. So, if there are any disputes about, for example, access, custody, maintenance, these disputes should be decided in the country where the child is habitually resident.
There is a Central Authority in each country to facilitate the return of abducted children.
EU Regulation on international abduction of children
The EU has a limited role in family law matters. Each individual member state has its own rules about separation, divorce, maintenance of spouses and children, custody and guardianship and other family law matters. The role of the EU is mainly concerned with ensuring that decisions made in one country can be implemented in another. It also has a role in trying to establish which country has jurisdiction to hear a particular case. You can find out more about EU legislation on family law in our document, EU and family law.
The Council Regulation (EC) No 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility came into effect in March 2005. The Regulation covers the following aspects of parental responsibility:
•Jurisdiction – what country should hear the case, whose laws should apply
•Recognition and enforcement – how decisions made in one country are to be recognised and enforced in another
•Co-operation between Central Authorities
•Specific rules on child abduction and access rights
The regulation does not set an age limit – that is for the individual country to decide. In general, the age limit is 18.
It applies only to civil proceedings, not criminal cases.
The court in the member state of the child’s habitual residence before the abduction retains jurisdiction to deal with the case except in certain limited circumstances, for example, where all concerned have acquiesced in the abduction.
Co-operation between Central Authorities
The Regulation creates a system of co-operation between Central Authorities of the member states. These authorities are obliged to facilitate communications between the courts of the relevant countries and must facilitate agreements between parents through mediation or other means.
Recognition and enforcement
Judgements given in one member state must be recognised and enforced in another member state. The court in the other member state may refuse to recognise the order only on certain grounds.
In the cases of child abduction, it is not necessary to go through the court procedure for recognition. If you have custody of a child and your child is abducted to another member state, you may apply to that state for the return of the child. The court of the member state to which the child has been abducted can only refuse return of the child in limited circumstances – for example, if there are not adequate safeguards to ensure that there is no serious risk of harm to the child should the child return.
In general, the court must order the immediate return of the child.
Under the Hague Convention (see below), the court is not obliged to order the return if it would expose the child to physical or psychological harm, or put him/her in an intolerable situation. The EU Regulation requires the return of the child where that could expose the child to such harm, provided the authorities in the member state of origin have made or are prepared to make adequate arrangements to insure the protection of the child after the return.
The Regulation provides for the right of the child to be heard during the procedure unless the judge considers it inappropriate due to the child’s age and degree of maturity. The court cannot refuse to return the child without first giving the person who requested the return the opportunity to be heard.
In general, the decision must be made within 6 weeks.
Further information on the EU Regulation is available in the Practice Guide for the Application of Council Regulation (EC) No. 2201/2003 (pdf).
The Hague Convention of 25 October 1980 on the civil aspects of international child abduction (the 1980 Hague Convention) and the Hague Convention (1996) on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children continue to apply in cases where the EU Regulation does not.
The EU Regulation prevails over the Convention in relation to those aspects covered by the Regulation. The Convention and the Regulation are generally similar in scope and in rules.
The European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children (the Luxembourg Convention) was signed in 1980 and applies to a number of European countries. It is now of limited relevance because the EU Regulation or the Hague Convention covers the relevant countries.
Both the Hague and Luxembourg Conventions deal with children under the age of 16 and provide that the paramountcy principle applies – that means the welfare of the child is of paramount importance.
The list of countries who are enforcing the Hague Convention are available on the Hague Conference on Private International Law website.
Countries who have not agreed to the conventions
In the case of countries which are not party to any of the international Conventions, decisions are made on the basis of private international law. This means that, in general, the Irish courts recognise court orders made in jurisdictions with similar legal systems. The courts also take into account the requirements of the Guardianship of Infants Acts that the child’s welfare and best interests are assessed. On occasions, the Irish courts have refused to return a child to a jurisdiction where this might involve a breach of rights under the Constitution of Ireland.
Irish law on child abduction
The Child Abduction and Enforcement of Court Orders Act 1991 came into force in Ireland in October 1991. It brought into Irish law the Hague Convention and the Luxembourg Convention.
Both Conventions aim to return the child who has been abducted. The Hague Convention can operate even if there is no court order if the child is taken without the consent of one parent. The Luxembourg Convention operates if there is a court order determining custody and it provides for the mutual recognition and enforcement of such orders in the countries which are parties to the Convention.
The countries which are parties to the Conventions agree to be bound by certain procedures in cases where children are removed from one country to another:
•If a child (aged under 16) is taken to or from a country which is a party to the Cconventions in defiance of a court order or against the wishes of a parent who has been granted custody, the Central Authority in that country may help to have the child returned. For Ireland, the Central Authority is the Department of Justice and Equality.
•If a child is abducted into a country which is a party to the Conventions, the Central Authority will take steps to trace the child, try to return the child or get access to the child and if necessary, take court proceedings to achieve that.
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. Legal aid will be available. Under the Hague Convention, it is possible to negotiate a voluntary settlement of the issues.
If a child has been abducted from the State, the Central Authority will help the parent in seeking the return of the child and liaise with other Central Authorities to that end.
The Act also outlines the circumstances in which a child need not be returned and the various procedures involved in enforcement.
It also gives power to the Gardaí to detain a child if they suspect that the child is being removed from the State in breach of any custody order or while proceedings in relation to custody are in train.
If your child has been internationally abducted, you should contact the Central Authority in order to set in motion the procedures required in the country to which the child has been abducted.
The European Parliament Mediator for International Parental Child Abduction
The post of the European Parliament Mediator for International Parental Child Abduction was created in 1987. It has no statutory basis. It aims to help children who have been abducted by one parent in circumstances where the parents are of different nationality and the marriage has broken down.
Either parent may ask the Mediator to get involved. The Mediator tries to find a voluntary agreement between the parents. This is done by providing information and advice and arranging suitable mediators for the particular case. The Mediator tries to ensure that there is the following combination of mediators: one woman – one man, one lawyer – one non-lawyer, both speaking both languages of the parties in the dispute. The Mediator is concerned to ensure the best interests of the child.
There is no requirement for either parent to co-operate with the Mediator. If they do co-operate and reach an agreement, that agreement may be turned into a legally enforceable agreement. This is the case for any agreement reached after mediation.
What should I do if my child is at risk of abduction?
If you believe your child is at risk of abduction you should get legal advice or contact the Gardaí. The Irish Centre for Parentally Abducted Children (ICPAC) publish an ICPAC Prevention Pack which provides information on the steps you should take if your child is at risk of abduction. This includes advice on gathering important information relating to your child, which will be required if your child is abducted, as well as on other steps you can take to reduce the risk. Reunite International, a UK charity, also provides child abduction prevention guides on its website