The legal issues around international parental child abductions

Over 1,400 parental child abductions occur annually in Europe and can be very stressful and difficult to deal with for all involved, writes Emily Dunne, Department of Law

Globalisation has contributed to the increased movement of people around the world. People set up home together and sometimes have children in different cultures and countries. However, if a relationship breaks down, one of the partners will often have a desire to return to their original home with their children.

If a child is removed from their current home by one of their parents and moved to a different country, without the consent of the other parent and in breach of their rights, this is termed an international parental child abduction and is illegal. Over 1,400 parental child abductions are reported annually to the Missing Children in Europe organisation. Some of these cases occur when one of the parents relocates and may not be fully aware of the legal consequences.

While the pandemic forced many countries to close their borders to cross-border travel, it is likely that cases of cross-border parental child abduction still grew. International child abduction places parents in a highly distressing situation. According to Missing Children in Europe, Covid-19 restrictions such as school closures, and the curtailment of support services have had an impact on parental abduction cases with increased calls to their helpline.

The legal process involved aims to enable a swift return, but this can be an extra cause of distress for the parents. The professionals who support parents in abduction cases are very aware of this emotional and complex journey. The work of the European Parliament and the Hague Convention on the Civil Aspects of International Child Abduction 1980, will continue to be vital. All EU member states are signed up to the Hague Convention and support the swift return of the child to their usual home - bearing in mind, of course, what is in the best interests of the child at all stages of the process.

One parent may not always realise that the other parent is not coming back from a pre-arranged holiday in their home country so the need to act swiftly is supported by the relevant organisations. The central authorities, normally at the department of justice of each member state, are tasked with the role of gathering the relevant information for the court proceedings and monitoring the process of each application.

The High Court or the relevant court of the jurisdiction will determine the custody arrangements and the aim is to have the process concluded in six weeks. The central authority does not charge a fee for its services and ensures the left-behind parent has access to legal support. The parent who has wrongfully taken the child may have to apply for legal aid. Extra expenses for flights, returning a child and travel are not covered.

But do the courts really know your child or your situation than you do? Due to the complex and conflicting emotions that are in place, parents can often find it difficult to talk with each other. The issues at play such as financial concerns, travel arrangements, different cultures, different legislation and different timezones can be very stressful and difficult to deal with.

Since its introduction, family mediation around the world has been very successful in helping families come to agreements in custody arrangements for their children. Professional mediators meet with the parents in an impartial and neutral manner, guided by the best interests of the child. In cross-border parental abduction cases, the key issue is access, and the focus is on negotiating a solution with both partners that is in the best interest of the child.

Both the Hague Convention and the EU Parliament have endorsed mediation as appropriate for parental child abduction cases. Nevertheless, due to different circumstances, such as the best interests of the child and the safety of all involved, some cases will not be suitable for mediation. If both parents cannot come to an agreement, then the court in the country that the child habitually resides will be asked to decide on custody and access arrangements.

In 2013 in Ireland, then Minister for Justice, Alan Shatter suggested that mediation remains the best way for estranged parents to resolve their difference and reach an agreement for the children. In 2015, then Minister for Justice and Equality, Frances Fitzgerald, spoke about the hope that cases could be resolved by families themselves, but also noted that legal remedies are required in most cases.

Could more be done at an earlier stage to prevent parental child abduction, possibly by inviting family mediation during divorce proceedings? As mediation has long been promoted, can this help during the legal process? Facilitating the parents to mutually come to decisions, while keeping the child at the heart of the discussion, is critical to a positive outcome. In nearly all cases, both parents love their child and are broken hearted with the enormity of the situation. The legal procedures are in place for these situations and more importantly the wellbeing of the child, but can we talk about it first?

(Front photo: Photo by Ben Wicks on Unsplash)