Before You Cross the Border: Understanding the Hague Convention on International Child Abduction

Overview

When a relationship breaks down, it is not unusual for one parent to think about returning to their home country, or moving abroad with their child for work, family or personal reasons.

What many parents do not realise is that taking a child across an international border without the agreement of the other parent, or without a court order permitting it, can amount to an act of international child abduction.

That is so even where the moving parent is the child’s primary carer, and even where the move is, on any objective view, in the child’s interests.

This article is a practical introduction to the legal framework that governs these situations: the Hague Convention on the Civil Aspects of International Child Abduction 1980, as it operates in Ireland.

What the Convention does

The 1980 Hague Convention is a multilateral treaty administered by the Hague Conference on Private International Law, known as the HCCH.

Its purpose is narrow but important: to secure the prompt return of children who have been wrongfully removed from, or retained outside of, the country in which they habitually live.

The Convention does not decide custody. It decides where custody should be decided.

The premise is that the courts of the child’s home country are best placed to make welfare decisions about that child, and that disputes between parents should not be resolved by one parent unilaterally relocating with the child.

Ireland has been a contracting State to the 1980 Hague Convention since 1991.

The Convention is given the force of law in Ireland by the Child Abduction and Enforcement of Custody Orders Act 1991. Applications under the Convention are made to, and determined by, the High Court.

When does the Convention apply?

For a return order to be made under the 1980 Convention, four key elements must be in place.

First, the child must be under 16. The Convention ceases to apply once the child reaches sixteen, even where proceedings are already ongoing.

Second, the child must have been habitually resident in a contracting State immediately before the removal or retention.

Habitual residence is a factual concept rather than a strictly legal one. The court looks at the degree to which the child’s life is integrated into a particular State, including schooling, family relationships, language and social ties.

Third, the removal or retention must be wrongful. This means it was carried out in breach of rights of custody held by another person under the law of the country of habitual residence.

Importantly, rights of custody is a Convention concept and is not identical to the Irish notion of guardianship or custody.

A non-guardian parent may still hold rights of custody for Convention purposes, for example where there is a court order in place, or where the law of the home State automatically confers such rights.

Fourth, both States must be contracting parties. The Convention only operates between countries that have ratified it.

Where the destination country is not a contracting State, parents may need to look to alternative mechanisms, such as bilateral arrangements, wardship, or proceedings in the foreign court.

How proceedings work in Ireland

Each contracting State designates a Central Authority.

In Ireland, that role sits with the Department of Justice, Home Affairs and Migration, at 51 St Stephen’s Green, Dublin 2.

The left-behind parent typically applies through the Central Authority in the country where the child was habitually resident. That authority then transmits the application to the Irish Central Authority, which arranges for proceedings to be issued in the High Court.

It is also possible to apply directly to the High Court without going through the Central Authority, and in practice many applicants instruct private solicitors in tandem.

Article 11 of the Convention requires contracting States to use the most expeditious procedures available, with a target of six weeks from the issue of proceedings to determination.

In practice, Hague applications are heard quickly and largely on affidavit evidence, with limited oral testimony.

When will a court refuse to order a return?

The starting point is that, once the four elements above are made out, the court will order the return of the child.

The exceptions are narrow, and the burden is on the parent resisting return.

One exception is settlement under Article 12. This may apply where the application is brought more than one year after the wrongful removal or retention, and the child is now settled in his or her new environment.

Another exception is consent or acquiescence under Article 13(a), where the left-behind parent consented to the removal, or subsequently acquiesced in it. Acquiescence is a high bar and requires more than mere passivity.

A further exception is grave risk under Article 13(b), where there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

This exception is narrowly construed. The court will consider whether protective measures in the home State can adequately address the risk.

The court may also consider the child’s objections under Article 13, where the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of those views.

There is no fixed age threshold. It is a question of fact in each case.

Article 20 may also apply where return would offend the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. This exception is rarely successful.

Even where one of the exceptions is established, the court retains a discretion to order return.

A note on EU cases: Brussels II ter

For cases involving EU Member States, other than Denmark, the 1980 Convention is supplemented and modified by Council Regulation (EU) 2019/1111, commonly called Brussels II ter.

Brussels II ter has applied since 1 August 2022.

It strengthens the Convention regime in important respects: it tightens timelines, restricts the circumstances in which return can be refused under Article 13(b) where adequate protective measures are available in the home State, and provides a mechanism by which a non-return order under the Convention can be effectively overridden by the courts of the State of habitual residence.

Practitioners advising on intra-EU child abduction should always read the Convention together with the Regulation. The rules are not identical to those that apply in non-EU cases.

Practical advice for parents

If you are a parent considering relocating with a child, the most important step is to obtain advice before you travel.

The cost and stress of defending a Hague application, and the prospect of the child being ordered back to a country you have just left, are significantly greater than the cost of getting the move right at the outset.

There are essentially three routes.

The first is written consent from the other parent, ideally setting out the agreed contact arrangements.

The second is a relocation order from the District or Circuit Court under section 11 of the Guardianship of Infants Act 1964, permitting the move.

The third is wardship or other High Court relief, where the circumstances require it.

If you are the parent left behind, time is of the essence. The longer the delay in bringing an application, the greater the risk of the settlement exception being raised against you.

The Central Authority in your country is the first port of call.

Conclusion

The 1980 Hague Convention is not a child welfare instrument in the conventional sense. It does not ask whether the move is in the child’s interests.

It asks a more limited question: where should that welfare decision be made?

Understanding that distinction, and acting on it before crossing a border rather than after, is the key to avoiding what can become a deeply damaging and protracted set of proceedings for parents and children alike.

This article is for general information only and does not constitute legal advice. The application of the Convention to any particular set of facts requires individual assessment.