Processing of applications in child abduction matters
The Child Abduction and Enforcement of Custody Orders Act 1991 gives the force of law to the Hague Convention and the Luxembourg Convention. The Conventions contain administrative and judicial measures designed to secure the return of children who are removed to any contracting State in defiance of a court order made in another contracting State or against the wishes of a parent with custody rights. They apply to children under 16 years of age.
Under the Convention each State has a “Central Authority” for the purpose of transmitting incoming and outgoing applications for the return of children who have been abducted to any contracting State. In Ireland, the Minister for Justice and Equality has been designated as the Central Authority.
Where a child is abducted into the State, the Central Authority, on receipt of an application, will take or cause to be taken the following actions:-
- initiate steps to trace the child;
- seek the child’s return or secure access to the child; and/or
- arrange, if necessary, for court proceedings to return the child.
We are required to treat these applications as urgent. The convention requires that we seek the “prompt return” of children who are abducted to this jurisdiction when requested to do so. EU law also affects these applications. Article 11(2) Council Regulation (EU) 2201/2003 requires the Court to make its decision using the “most expeditious procedures available” and no later than 6 weeks after the application is lodged.
The Central Authority also has obligations to assist in relation to certain access applications.
When a referral is received by the Board from the Central Authority, it is treated as an application for legal services. Legal Services will nominate a law centre and the Central Authority will provide all the relevant documents directly to the law centre. A legal aid certificate will be issued by Legal Services.
The Central Authority has an obligation to keep other central authorities informed of the progress of applications made under the conventions. Solicitors should, therefore, regularly keep the Central Authority informed of the progress of a case. The Central Authority may make contact with Civil Operations in cases where it is not receiving updates from a solicitor and Civil Operations may follow up with law centres/solicitors in such cases. Depending on the nature of the communication, Civil Operations may decided to treat such a contact from the Central Authority as a complaint on the applicant’s behalf.
Where outgoing applications arise i.e. where a child is removed from this State, the Irish Central Authority will transmit an application to the central authority of the country to which the child has been taken which will, in turn, set in train the procedures necessary to take action in that matter.
A general point about these cases is that even though they involve children the court is usually limited to determine whether it or the requesting country has jurisdiction to decide issues relating to the welfare of the children. The issues are much narrower than a full custody/access dispute.