The legal definition of child abduction is to wrongfully remove or wrongfully retain, detain or conceal a child or baby. Abduction is taking away a person by persuasion, by fraud, or by open force or violence.
There are two types of child abduction: parental child abduction and abduction by a stranger. Parental child abduction occurs when one parent removes a child from the country, without a court order or the other parent’s consent. Often, this happens where there is a dispute over custody. However, it can also happen at any time after a court has ruled on custody.
International child abduction is a criminal offence in Ireland. A parent or anyone else who unlawfully abducts a child may be convicted of the offence.
Parental child abduction became so prevalent and caused such legal difficulty that it needed an international response. Now certain conventions operate to restrict the practice of child abduction. These are commonly known as the Hague Convention and the Luxembourg Convention. Both were brought into Law in Ireland by the Child Abduction Act 1991. They operate to ensure prompt return of children to the correct legal jurisdiction. That is, unless it would be contrary to the child’s welfare to direct such return.
In general, legal decisions about the child should be made in the country where the child lives – their habitual residence. So, if your child is taken from their home in Ireland, then Irish laws should apply. The difficulty can lie in securing the return of the child, even where a court order lies in your favour in Ireland. Such cases may still have to deal with the legal system in the country the child has been removed to.
Often, courts will hear complex legal arguments from competing sets of laws from different countries, as the dispute is unraveled. However, the internationally recognized principle of the best interest of the child prevails across most borders. The speed at which you respond and your vigilance in pursing the case are important factors.
Relocation is an issue which very often overlaps with child abduction. However, it can equally stand alone as an issue of dispute between parents. A separated parent may wish to move to a different country with the children. If so, they must generally apply to the court for permission to relocate, if the other parent objects to the move. Often a child abduction case will involve an ‘after the fact’ application to relocate.
In relocation cases, the court will want to know details about arrangements for the child’s future. These include where the child will live, go to school, and get medical treatment. It’s important also to show the court that you have a good support network and job opportunity. It’s also relevant to show you can maintain access to the children for the other parent. All this detailed information allows the court to decide in the best interest of the child.
If you suspect any intention to abduct, or believe an abduction has taken place, you must act swiftly in obtaining legal advice.
If you need advice or support on any of the issues raised above, please call Alan Finnerty on 01 637 6200 or email him at alan.finnerty@orpenfranks.ie
