An increasing problem in Ireland is that of child abduction. There are a growing number of marriages and relationships where one or more of the parents are non-nationals and the issue of the removal of a child without the other parent’s consent is a growing problem.
The Non-Fatal Offences against the Person Act, 1997 deals with the crime of international child abduction. Unfortunately this Act cannot be relied upon by the unmarried father, if he does not have a guardianship order.
In all child abduction cases, the general principle is that the child should be returned to his/her habitual residence as soon as possible and any legal issues should be dealt with in the country of habitual residence.
All disputes to do with access, custody and maintenance will therefore have to be dealt with in the country where the child is habitually resident.
As far as the EU is concerned, our internal EU regulations are aimed at ensuring that decisions made in one country can be implemented in another.
- If you have custody of a child and the child is abducted to another EU state, you can immediately apply to that other state for your child to be returned to you. The court will always order the return of the child unless there is a very real danger of serious harm if the child is returned.
- If the child is abducted to a country outside the EU, the provisions are less rigid and under the Hague Convention, which is the international convention governing the return of abducted children, a child will not be returned if the child is likely to be exposed to physical or psychological harm or if the child would be placed in an intolerable situation. The position within the EU is much more rigid.
- If you would like to read further detailed information on this you can click the following link Practice Guide for The Application of Council Regular (EC) 2201/2003 (PDF).
Procedure if Child is abducted outside the EU:
- In these cases the Hague Convention applies. It should be noted that while very many countries are signatories to this Convention, the main exception are Muslim countries such as Syria, Egypt, Algeria. For a full list of countries who will enforce the Hague Convention you can click here, or the visit the Hague Convention on Private International Law website.
- If the country is not a party to the Hague Contention then the normal rules of private international law come into play and you will have to take legal advice in the country where the child is then resident.
- The general principle both in relation to the Hague Convention and the EU equivalent is that even if there is no court order, a child should be returned to its home if that child has been removed without the other parent’s consent. This applies even if there is no court order in place.
- If a child has been abducted to Ireland then the Legal Aid Board will generally be asked by the Department of Justice & Equality to issue proceedings in the High Court.
- If you believe that your child is about to be removed from the State then the gardai have the power to detain the child if there is a custody order in place or if there are any legal proceedings in relation to custody in place.
What can I do if an abduction has taken place?
- If your child has been abducted from Ireland or has been abducted to Ireland then your first step should be to either contact an experienced solicitor or go directly to the Department of Justice, Equality & Law Reform and contact their Child Abduction Section. You can email them and get all relevant documentation from firstname.lastname@example.org
- We can assist in relation to all matters concerning child abduction, or, if you are eligible, you can apply to have all matters dealt with by the Central Authority and in Ireland this generally means through the Legal Aid Board, who can be contacted at email@example.com
- If you have a concern that abduction may become an issue, then if appropriate you should obtain a court order for custody or joint custody or access but with a specific order restraining removal of the child from Ireland without your consent. If you are not married then you should obtain an order for guardianship if you are the father, together with an access order.
- On a practical basis, if the child has a passport then you should make sure that the passport is secure and if the child has dual citizenship then you are quite entitled to write to the non-Irish embassy requesting that a passport not be issued without notification to you.
Q. If my child is taken out of the country with my consent and I subsequently want the child returned and the child is not returned, will the court make an order compelling the return of the child?
A. Generally speaking, if one parent acquiesces in the child remaining out of the country, this may prevent a subsequent order being made.
Q. Are there any time limits within which I have to make my application?
A. Yes, if the application is made within a year of the wrongful removal or retention then generally speaking the court will order the return of the child to the country of habitual residence. Even if the application is made beyond the period of one year then an order may be made unless it can be shown that the child is now settled in its new environment. It is rare however that applications will made after such a period of time and generally they are made immediately the parent becomes aware of the wrongful removal or retention.
Q. How long will it take and how much will it cost?
A. Because of the nature of child abduction, the applications are generally dealt with very quickly and receive priority in the courts. Even where appeals are involved, they are generally fast tracked. The costs depend on whether the State are involved on your side, in which case the costs are relatively low. If a private firm are retained then the costs can be high and could exceed €8,000 plus VAT and outlay.