Applying for the Return of a Child/Access to a Child taken abroad
Can I apply for the return of a child?
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (the 1980 Hague Convention) applies if all the following criteria are met:
- The removal or retention was in breach of the applicant's 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.
What applications can be made under the 1996 Hague Convention on Jurisdiction, 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 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.
Under this Convention, there is provision for proceedings regarding the recognition, enforcement or non-recognition of measures taken in another Contracting State as well as proceedings in relation to access.
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 jurisdiction 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.
Council Regulation (EC) No. 2201/2003
The European Council Regulation (2201/2003) concerning Jurisdiction and Recognition and Enforcement of Judgements in Matrimonial Matters and Matters of Parental Responsibility (Brussels II bis)
This Regulation reflects to a large extent the provisions of the 1996 Hague Convention and covers the following issues:-
- Jurisdiction – what country should hear a case, whose laws should apply;
- How decisions made in one country are to be recognised and enforced in another;
- Specific rules on child abduction and access rights.
The EU Commission has produced a practical guide to this Regulation. See also: Practice Guide for the Application of Council Regulation (EC) No. 2201/2003
Can I apply for the return of a child under the Luxembourg Convention?
The Luxembourg Convention was signed in 1980 and is now of limited relevance since Council Regulation (EC) No. 2201/2003 came into effect. The Luxembourg Convention applies if all of the following criteria are met:-
- There is in place a decision relating to custody, for example a court order granting custody of a child to one or more parties;
- The removal or retention is in breach of a court order which was in force at the time of removal or retention, or a subsequent court order has been obtained declaring the removal or retention to be unlawful;
- The child must be under sixteen;
- The child was abducted to a Luxembourg Convention country.
Can the return of a child be refused under the various instruments?
The courts of a contracting state can refuse to return a child in certain exceptional circumstances set out in the various instruments. 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.
What does the Central Authority do?
The Conventions and the Regulation relating to the abduction and custody of children provide for the establishment of a Central Authority in a "contracting state" that is a party to them, including Ireland, to administer the various procedures involved. The Central Authority assists persons to avail of the provisions of these international and EU instruments by:-
- Assisting with the completion of an application form;
- Arranging for a translation if necessary;
- Transmitting the application to the corresponding foreign central authority;
- Monitoring the progress of the application;
- Attempting to discover the whereabouts of the child where appropriate.
What about children abducted from other contracting states to Ireland?
The Irish Central Authority provides similar assistance to an applicant abroad whose child has been removed to the State. The services of lawyers, if required, are provided by the Legal Aid Board. The Garda Síochána (Irish police force) provides assistance to the Central Authority in locating missing children.
What will it cost?
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. 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.
How do I make an application?
Where a child has been removed from Ireland to a Convention country, an application may be made to the Irish Central Authority or to the central authority in the state to which the child has been removed. An application form for submission to the Irish Central Authority is available.
Where a child is removed from a Convention country to Ireland, an application may be made to the central authority in the state from which the child has been removed or to the Irish Central Authority.
Where is the Central Authority for Child Abduction?
Department of Justice and Equality
Phone: + 353 1 479-0200
Fax: + 353 1 479-0201
E-mail: firstname.lastname@example.org (Queries/applications under the 1980 Hague Convention and Council Regulation 2201/2003 (Brussels II bis)
E-mail: email@example.com (Queries/applications under the 1996 Hague Convention)