Child Abduction and Enforcement of Custody Orders Act 1991
On the 27th March 1991 The Child Abduction and Enforcement of Custody Orders Act was enacted to give the force of law to the Convention on the Civil Aspects of International Child Abduction , signed at the Hague on the 25th October 1980 (The Hague Convention), and the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and Restoration of Custody of Children signed at Luxembourg on the 20th May 1980 (Luxembourg Convention).
The Child Abduction and Enforcement of Custody Orders Act 1991 was enacted in Ireland to incorporate the spirit of both the Hague and Luxembourg Conventions into our domestic law .
The purpose of both Conventions is to ensure the prompt return of children to the place of their habitual residence in circumstances where it is shown that their removal from that State or their retention in another was wrongful. The underlying principal is that the courts of the country in which a child is habitually resident should determine all issues of custody and access.
Article 3 of the Hague Convention provides that the removal or the retention of a child is to be considered wrongful where:-
- It is in breach of rights of custody attributed to a person, an institution or any other body either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
- At the time of the removal or retention those rights were actually exercised either jointly or alone or would have been so exercisable save for the removal or retention.
Article 4 provides that the Convention shall cease to apply when that child attains the age of 16 years.
Article 6 provides for each Contracting State to designate a "Central Authority" to discharge the duties which are imposed by the Convention upon such authorities.
In this jurisdiction the central authority is the responsibility of the Department of Justice, Equality and Law Reform.
Articles 12, 13 and 20 of the Treaty specify the defences.
Article 12 specifies that where a child has been wrongfully removed or retained, in terms of Article 3, and the date of commencement of the proceedings before the judicial or administrative authority of the contracting State, where the child resides, is a period of less than one year from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
Even where proceedings have been commenced after the expiration of one year, referred to in the above paragraph, the judicial or administrative authority shall also order the return of the child unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority, at the request of the State, has reason to believe that the child has been taken to another State they may stay the proceedings for the return of the child.
When applying Articles 12 or 13 of the Convention the wishes of the child must be taken into account.
Brussels IIR
A relatively recent and hugely important addition to the law, as it applies to EU member states, is the EU Regulation known as "Brussels IIR". The Luxembourg Convention has been superseded by Brussels IIR. The Hague Convention continues to apply between member states but it is supplemented by a number of provisions of the Brussels IIR. The Regulation itself takes precedence over the Hague Convention and matters covered by the Regulation are those where proceedings involve the wrongful retention or removal of children as between EU member states.
The Brussels IIR regulation became operational in this jurisdiction in 2005.
Brussels IIR does not apply to non EU Hague contracting states for example, the USA, Australia or Canada.
Where applicable, Brussels IIR takes precedence over the Hague Convention.
Proceedings under the Child Abduction Enforcement Custody Orders Act 1991 are issued in the High Court. Although not strictly governed by the in camera rule, these proceedings are afforded the benefit of the rule.
Seeking Family Law Advice
If you would like to discuss family law, please contact Malcomson Law by calling 01 8744422 or complete an Online Enquiry Form . A solicitor who specialises in the family law area will contact you to advise you of your legal rights and entitlements.