Hague Convention Child Abduction
This article deals with the complicated area of family law commonly known as Hague Convention child abduction. More specifically the Hague Convention helps to secure the return of abducted children who have been wrongfully removed to a foreign jurisdiction back to the country where there are habitually resident. The general policy of return is based upon the assumption that the courts of the Contracting States are all equally capable of fairly determining the issues between the parties and of protecting the welfare of children.
The objectives of the Convention are ‘to secure the prompt return of children wrongfully removed or retained in a ‘contracting state’ and ‘to ensure that rights of custody and of access under law of one Contracting State are effectively respected in the other Contracting States’.
The contracting states to the convention (eighty-four worldwide, including Ireland) commit themselves to take ‘all appropriate measures to secure within their territories to said objectives of the convention’.
The Hague Convention has regard for the rights of custody which arise by judicial or administrative decisions and rights of custody is defined as including rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.
The general policy is that the courts of all the countries who have signed the Hague Convention are capable of determining the issues between the parties and securing the best interests of the child.
The central principle of the Convention is that, the wrongful removal or wrongful retention of children is in breach of custody rights.
Application to the Court
Applications under the Hague/Luxembourg Conventions are taken in the High Court. However, if there is a threat of abduction of a child an application can be made to the District Court, Circuit Court or High Court for various orders such as sole custody, injunctions restraining removal out of the jurisdiction, orders regarding passports etc.
The legislation in relation to child abduction is complex and Healy O’Connor Solicitor can provide specialist advice in order to resolve these complex legal issues.
Defences to the Hague Convention
Defences are provided under the Hague Convention where;
- The abducting parent resists the application for the child’s return where there is a grave risk to the welfare of the child.
- Where the child does not want to be returned.
Brussels II BIS
Since 2005, the Brussels II bis governs the procedure for dealing with intra-Member State child abduction cases, even though The Hague Convention still continues to apply.