International Child Abduction

AWith effect from 1 October 1991, the Child Abduction and Enforcement of Custody Orders Act 1991 incorporated both the Hague and Luxembourg Conventions on International Child Abduction into Irish law. The revised Brussels IIbis Regulation also applies to the Republic of Ireland with regard to international child abduction. While the Convention continues to apply, the Regulation provides that its provisions take precedence in cases of abductions between member states. As with the Hague Convention, the Regulation aims to prevent parental child abduction between member states and, where such abduction takes place, establishes a system to ensure the prompt return of the child to their member state of habitual residence. Child abduction cases in Ireland are heard in the High Court and legal aid is available to applicants in these cases. The Irish courts adopt a consistent approach and endeavour to return the child speedily to the country of habitual residence. Refusal to return is considered where a grave risk defence is mounted. The courts do not generally hear direct evidence from children in these proceedings, although child specialists and/or guardian ad litems may give evidence in certain circumstances. Again, there is no panel of child specialists available to the court in these cases.

Unmarried fathers who do not have any automatic rights of custody and guardianship are somewhat vulnerable in the Irish context. Recent case law held that the removal of a child in the absence of the consent of an unmarried father (who had not been appointed guardian) is not a wrongful removal as a breach of ‘rights of custody’ had not occurred. Another case found that where the unmarried father had applied to the courts for guardianship and/or access, the court itself has ‘rights of custody’. See CM v Delegacion de Malaga [1999] 21R 363; In re J (A Minor) (Abduction) [1990] 2AC 562; In re H (Abduction: Custody Rights) [1991] 2AC 476; R v R [2006] IESC 7 and AS v MS (child abduction) [2008] IR 341; A.BU v J.BE [2010] IEHC 77; AU v TNU [2011] IESC 39 which refers to Baroness Hale’s decision in Re D (A Child) (Abduction: Rights of Custody) [2007] IAC 619, ‘there is now a growing understanding of the importance of listening to the children involved in children’s cases’. Also see MN and RN [2008] IEHC 382 where Finlay Geoghegan J. states: ‘A mandatory positive obligation is placed on a court by Article 11(2) to provide a child with an opportunity to be heard, subject only to the exception where this appears inappropriate having regard to his or her age or degree of maturity’. (Follows Re F [2007] EWCA Civ 468). Also see JMcB and LE [2010] IEHC 123.