What applications can be made under the 1996 Hague Convention on State, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children?
The term International Child Abduction is generally used to describe situations where one parent (the abducting parent) removes a child from the state where the child usually lives to another state without the consent of the child’s other parent (left behind parent) or in breach of a court order.
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 are subjected to situations of international child abduction. It aims to return children to the state where they usually lived prior to their wrongful removal, so that the competent authorities in that state (i.e. courts) can make decisions in relations to matters of custody and/or access.
The Convention also allows left behind parents to seek to establish access rights to their children. This may be of benefit for parents who did not have rights of guardianship, custody, or access at the time their child was removed/retained.
The Convention has been agreed to by over 90 countries including Ireland, and it has been given the full force of law in Ireland by the introduction of the Child Abduction and Enforcement of Custody Orders Act 1991 (as amended).
If your child has been removed to or retained in another state without your consent, and that state is signed up to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, then you may be able to look for their return under the terms of the Convention.
Please note that the Convention sets outs conditions which must be satisfied if a removal or retention is to be considered “wrongful” within the meaning of the Convention. These conditions are set out in Articles 3 to 5 of the Convention and include the following:
1. A person must have a right to custody under the law of the state in which the child was living immediately before the removal or retention - Rights of custody under the Convention include rights relating to the care of a child and, in particular, the right to decide where a child lives. Under Irish law, these rights are with the guardians of a child unless a court has ordered otherwise. Custody and/or Access Orders may also be sufficient;
2. The rights to custody, as defined in the Convention, were actually being exercised prior to the removal or retention;
3. The child is under 16 years of age;
4. Immediately prior to the child’s removal, the child was habitually resident in the state to which return is being sought.
A return application may also be accepted from a person who was not a guardian at the time of the child’s removal if it can be shown that they had i) started Guardianship proceedings before the child’s removal/retention from Ireland and ii) the other party was served with the Notice of Application of such proceedings.
Please note that EC Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and matters of parental responsibility is the relevant law within the European Union and it includes and adds to the provisions and protections of the 1980 Hague Convention in relation to situations of international child abduction between EU Member States.
If you are unsure whether your situation meets the requirements of the Convention/Regulation please contact the Central Authority for further information (details below).
4. What is the Central Authority and how can you make an application under the Convention/Regulation?
Generally, a left behind parent submits an application for return or access to the Central Authority in the state where the child was usually living prior to the removal/retention i.e. the “requesting state”.
Each country that is participating in the Convention has a Central Authority. This network of Central Authorities transmits and receives applications on behalf of the left behind parents. They assist the left behind parents in bringing their application to the attention of the competent authorities (usually a court) in the “requested state”. i.e. country to which the child has been removed or retained.
The Irish Central Authority was set up under the Child Abduction and Enforcement of Custody Orders Act 1991 (as amended) and is located within the Civil Law Reform Division of the Department of Justice and Equality.
If your child has been removed from Ireland to another Convention country you can contact the Central Authority for an application form (details below)
If your child has been taken to Ireland, you should contact the relevant Central Authority where you are. Here is a full list of contact details for all Central Authorities.
The Central Authority assists left behind parents by:
• Collecting documentation and transmitting the application form to the foreign Central Authority;
• Arranging translations of all documentation, as necessary;
• Monitoring the progress of the application;
• Providing further documentation to the competent authority in the foreign state, as necessary;
• Providing regular updates to the left behind parent;
• Assisting, where appropriate, with an application for legal aid.
Please note that legal aid is not automatically provided by all foreign Central Authorities in relation to outgoing applications. You will be notified if you are required to submit an additional application for legal aid with your Hague Convention/Regulation application.
The Central Authority assists left-behind parents by:
• Arranging for the provision of free legal aid through the Legal Aid Board;
• Transmitting the application to the assigned Legal Aid Board solicitor;
• Requesting information from the foreign state;
• Providing regular updates throughout the application;
• where appropriate, assisting in locating the child within the State.
Please note that legal aid is not automatically provided in incoming Access applications. The Legal Aid Board will means test an applicant to assess whether they qualify for legal aid.
If a child has been abducted to a country that is not in the European Union or is not participating in the Convention then you should contact the Consular Services Section in the Department of Foreign Affairs to ascertain whether they can provide any additional assistance.
Contact information for the Consular Services Section can be found here.
The Convention/Regulation also provides left-behind parents with an opportunity to establish access arrangements with their child. This may be beneficial to parents who do not have rights of custody over their children within the meaning of the Convention.
A left-behind parent can seek to establish access arrangements with their child regardless of whether they had rights of custody within the meaning of the Convention/Regulation. The Convention allows the left-behind parent to make an application for access through the Central Authority network to the Courts in the foreign state.
You should contact the Central Authority if you require an access application form.
It is very important to note that the Central Authority does not have any authority to make decisions in relation to child abduction/access matters. It is a matter for the competent authority in each state (i.e. usually the Court system) to decide on the merits of each application.
Articles 12(2), 13 and 20 of the Convention set out the exceptional circumstances where a court or other competent decision making body can refuse to return a child. The main exceptions include:
• There is a grave risk the return would put the child in danger of physical or psychological harm or otherwise place the child in an intolerable situation;
• The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views;
• It would amount to a violation of a person’s fundamental human rights.
The Central Authority does not charge a fee for its services.
However, some countries will only cover legal costs to the extent of their legal aid system. You will be notified if you are required to make an additional application for legal aid once you submit your return/access application to this office.
In most parts of the USA there is no legal aid system. In such cases efforts are made by the US Central Authority to secure legal representation at a reduced rate or free of charge for persons of limited means.
Expenses incurred in returning a child (e.g. air fares) are not covered
|Address:||Department of Justice and Equality
|Phone:||+ 353 1 479-0200|
|Fax:||+ 353 1 479-0201|
(Queries/applications under the 1980 Hague Convention and Council Regulation 2201/2003 (Brussels II bis)
• The 1980 Hague Convention on the Civil Aspects of International Child Abduction. The full text of the Convention and further relevant information can be found here
• EC Regulation 2201/2003 concerning state and the recognition and enforcement of judgements in matrimonial matters and matters of parental responsibility – This Regulation further enhances and strengthens the provisions and protections of the 1980 Hague Convention in relation to situations of international child abduction between EU Member States. The full text of the Regulation and further relevant information can be found here
• The 1996 Hague Convention on State, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. The provisions of this Convention are similar to the provisions of Council Regulation 2201/2003. This Convention is broad in scope and provides for children up to the age of 18 years. The full text of the Convention and further relevant information can be found here
• The European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children (the Luxembourg Convention). This Convention has been superseded by EC Regulation 2201/2003 in relation to recognition and enforcement issues in respect of matters between EU member states.
13. What applications can be made under the 1996 Hague Convention on State, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children?
With regard to relations with this Convention, EC Regulation 2201/2003 is fully applicable if the child in question is habitually resident in an EU country. The rules on recognition and enforcement also apply if the competent court in an EU country issues a judgment, even if the child in question is habitually resident in a non-EU country that is a party to this convention. The main aims of the Convention are the following:-
• To determine what competent authorities can take measures to protect a child and/or its property;
• Which law is to be applied by these authorities in doing this;
• What law applies to parental responsibility;
• Recognition and enforcement of measures of protection in Contracting States.
The measures referred to may deal with amongst other things:
• Parental responsibility;
• Rights of custody and in particular the right to determine a child’s place of residence;
• The placement of a child in a foster family or in care;
• The supervision by a public authority of the care of a child;
• The administration of a child’s property.
The 1996 Convention does not relate to:
• The establishment or contesting of a parent-child relationship;
• Social security;
• Decisions on the right of asylum and immigration.
Requests under Articles 8, 9 and 33 of the Convention can be made through the Central Authority. Articles 8 and 9 relate to requests by Courts in one State made through a Central Authority to another Court in a Contracting State seeking to transfer proceedings if it is thought this would be in the best interests of the child. Article 33 requests are from competent authorities, usually a Court seeking a report on whether it is appropriate to place a child with, i.e. a foster family or in care.
PLEASE NOTE THAT THE CENTRAL AUTHORITY IS NOT A LEGAL OFFICE AND CAN NOT PROVIDE ANY LEGAL ADVICE. YOU SHOULD CONTACT A SUITABLY QUALIFIED LEGAL PROFFESSIONAL IF YOU REQUIRE LEGAL ADVICE.