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Child Abduction

Child abduction into the State and out of the State is an ever increasing problem.

The main factors contributing to this is the greater number of intercultural relationships, immigration, increased mobility and cheaper travel.

Since the enactment in this Jurisdiction of the Child Abduction and Enforcement of Custody orders Act 1991 the number of Children that were the subject matter of applications was 1,966. In 2007 99 cases involving 155 children were received.

The Law in this Jurisdiction concerning Child Abduction is governed by The Hague and Luxembourg Conventions and an EU Regulations Brussels П which is applicable to an EU members states only. The purpose of both conventions is to ensure the prompt return of the Child to the place of their habitual residence.

The underlying principle is that the Courts of the country of a Child Habitual Residence should determine all issues of custody and access.

The Defences which are relied upon in Child Abduction Proceedings are in the main the following:-

1. A period of more than one year has elapsed since the removal / retention of the child.
2. To return the child would expose him / her to grave risks of physical / psychological harm.
3. The applicant consented to the removal or retention of the child.
4. That the child objects to his / her return.
5. That an order for the return would fail to protect the human rights and the fundamental freedom of the child.
6. That the applicant at the time of the movement / retention was not exercising his / her rights at custody.

If the court finds the removal wrong it must order the return of the child.

There is an automatic entitlement of the applicant to legal aid under the child abduction legislation. Legal aid is however not normally granted to the respondents who have to either instruct solicitors in private practice or represent themselves.

Child abduction cases are treated as a matter of urgency by the Courts.

There is a required determination period of six weeks from commencement to the conclusion of the case to enable a prompt return to be effective.

In many Jurisdictions child abduction is regarded as a criminal offence. If returned to a requesting state the abducting parent may be found guilty of a criminal offence attracting custodial sentences.

Please note that this article is for information purposes only and does not constitute legal advice.

Seeking Family Law Advice

For further information, please contact Malcomson Law by calling 01 8744422 or by filling out an Online Enquiry Form. Your enquiry will be forwarded to a solicitor who specialises in Family Law.

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