Vol. 479 No. 1
4 Dr. McDaid asked the Minister for Equality and Law Reform if there are any policy implications for his Department, and his views thereon, in relation to the operation of arrangements to deal with international child abductions from the State. [12412/97]
I assume the Deputy is referring to the problem of the wrongful removal of children from the State by a parent or the improper retention of children abroad by a parent.
The possibility of recovering a child in these cases has improved greatly in recent years. The credit for this goes to the operation of two international conventions, the Hague Convention on the Civil Aspects of International Child Abduction and a Council of Europe Convention on child custody which were given the force of law in the State by the Child Abduction and Enforcement of Custody Orders Act, 1991. Prior to that legislation there were no formal arrangements whereby rights of custody of parents in the State could be recognised or enforced in another state.
The Hague Convention contains judicial and administrative measures to secure the return of a child on the basis that the custody of a child should be decided in the courts of the place where the child habitually resides. The Luxembourg Convention contains measures designed to ensure that custody orders made by the courts in a contracting state are, subject to conditions, recognised and enforced in other contracting states. Forty-four countries worldwide, including all our EU partners, the USA and Canada, are party to one or both of those conventions.
The conventions provide for the establishment of a central authority in each contracting state to carry out functions which are specified in the conventions. All central authorities are obliged to initiate steps to trace a child, to seek the child's return or secure access to the child, to arrange, if necessary, for court proceedings to secure the return of, or access to, the child, to collate and send to other central authorities information about the child.
The central authority which operates in my Department for the purposes of both conventions has received full co-operation from other central authorities in securing the return of children who have been removed from the State. The Deputy will appreciate that I could not undertake, in reply to questions, to discuss the details of any particular cases. I say that in the knowledge that from time to time some cases of child abduction get considerable publicity.
The total number of cases dealt with in 1996 by our central authority was 114. Of that figure 51 were abductions into the State and 63 were abductions from the State. In 12 of those 51 cases of abductions into the State the court ordered the return of the children concerned; in eight cases the court refused to return the children; in nine cases the parties reached agreement; one case was for the recognition of a care order; one case was outside the scope of the convention concerned; 12 applications were withdrawn and 18 cases were awaiting resolution at the end of the year.
In 17 of the 63 cases of abductions from the State foreign courts ordered the return of the children; in five cases the foreign courts refused to return the children; in 15 cases the parties reached agreement; one case was outside the scope of the convention concerned; ten applications were withdrawn and 15 cases were awaiting resolution at the end of the year.
The operation of both conventions is the subject of regular review under the auspices of the relevant international organisations, namely the Hague Conference on Private International Law and the Council of Europe. Both conventions provide specifically for those reviews and my Department has participated in them.
I thank the Minister for his reply and I recognise it is difficult to get a proper answer to a question on this area as frequently questions are transferred from one Department to another. As a large number of emigrants have come to this country in the past few years, this problem will increase in future years. I appreciate the Minister asking what I had in mind in tabling this question.
Legislation on the Hague Convention was introduced by my colleague, Deputy Burke, some years ago. The Minister informed us that 44 countries have signed up to that convention and obviously it is an important one. In view of our place in the world and given that 44 countries constitute a relatively small number of countries, what efforts are being made to attract other countries to sign up to that convention?
Efforts to get other countries to sign up to that convention are matters for international organisations. No doubt the appropriate communications are made by the Hague Conference and the Council of Europe. It is not just a matter of signing up to the convention, certain procedures must be in place. Legal systems must be in place to operate on an appropriate basis. Central authorities that meet certain qualifications must also be in place in the relevant countries. All the European Union member states have signed up to the convention and the range of countries that are parties to it are broad ranging. I am sure work is ongoing on the international scene in that regard to improve matters further.
I am sure many people will be surprised to hear that 114 cases were dealt with by our central authority. Is the Minister aware of the number of cases concerning children involving countries that have not signed up to the Hague Convention? He said a number of cases were awaiting resolution. Will he indicate how long it takes to resolve a case? Is there an average time span or does it depend on the individual case involved?
It depends on the case involved. The facts of each case are different. It depends on many factors, the information available to the court, if the central authority had obtained the necessary information required, the availability of court time and varying factors that may come into play. I do not have information on the specific average length of time a case would take. It varies from case to case. I do not have information on cases involving countries other than those that are party to the two conventions concerned. Proceedings under those conventions could not get under way if the appropriate country was not a party to the conventions. Therefore, that kind of statistic would not be available because such an application would not have any legal base under those two conventions.
We have become quite a cosmopolitan country, particularly in the past two to five years. Quite a few people who are members of my profession and other professions have emigrated here from countries that have not signed up to the Hague Convention. Many of those emigrants come from Muslim countries that have a different cultural outlook on the status of men and women. I do not want to be racist or discriminatory, but as the numbers emigrating here increases the problem in this area will also increase. When an Irish national marries a national of a country which does not abide by the Hague convention, does the Minister envisage he will have to take steps to require the foreign national to sign an agreement, before such a marriage, that disputes will be settled and any legal case heard in this jurisdiction? This is all the more important given that the child from the marriage is Irish. There will be problems when people from other countries, particularly Muslim countries, marry Irish people and these will increase in years to come. Does the Minister think that, before a person from such a country marries an Irish national, he or she should have to sign a document stating that any case arising from the abduction of children will be heard in the Irish courts?
That question raises what could be quite a complex issue and it would depend on a number of surrounding circumstances. I am not in a position to give a legal opinion on a hypothetical case of that nature. This question concerns abduction of children either into or out of the State and, as I said in my initial reply, the facility for dealing with both types of case has much improved as a result of the 1991 Act and the ratification by many countries of the two conventions concerned.
I agree with Deputy McDaid that what he loosely described as the Muslim countries do not appear on the list of countries which have ratified the conventions — it appears the only such country to have ratified is Bosnia. If a case arises where the availability of the convention procedure cannot be used because one of those countries has not subscribed to the convention, no formal arrangement exists. Whether anything could be done — either within the Irish courts or the courts of the other country, Muslim or otherwise — would depend on the facts and on the legal system in that country, which could vary from case to case.
That is my point. This country places a different emphasis on women and mothers than do those countries which have not signed the Hague convention. If a child is abducted from Ireland to such a country with a different culture, what rights exist in Ireland to impose the legal right in the country of the father?
The Irish courts would determine such an application in the light of our law. A number of aspects of family law and international law would come into play and would be taken into account by the courts. In a small number of cases, even in applications brought under the convention procedure, the courts refuse to return the children to the country of origin. Consequently, a similar jurisdiction is vested in the courts in a case which would be outside the ambit of the conventions.
Is the Minister saying that if a country has signed neither the Hague convention nor the Council of Europe convention, there is little or no redress for a parent seeking to have his or her child returned here? In other words, it would be a difficult process and the parent would be unlikely to succeed.
Does the Deputy mean an abduction from Ireland to one of those countries?
Yes.
That would depend on the circumstances of the case and the legal system in the country to which the child was taken. The system might enable applications to be brought and court orders to be made there or it might not. One might receive a sympathetic or unsympathetic response in such a country. However, the tremendous facility of the convention procedure would not be available. This procedure gives people from countries which subscribe to the convention a huge advantage because the system operates on a Government to Government basis, using the central authority in each country. Procedures are in place for the supply of legal aid to people who would need to use the central authority convention procedures. The convention is a huge boon to the parent of a child who has been abducted either into or out of Ireland. If one is not in a position to avail of the convention and the central authority procedure, it will be much more difficult. One will have to hire lawyers in that distant country, make inquiries and ascertain the legal position. This could present great difficulties, which are precisely the ills which those conventions were designed to remedy and they have done so extremely well.
I am proud that as Minister for Justice I introduced the legislation for the protection of children. It concerns not only the rights of the parents but also the welfare and interests of the children. I am glad the legislation is operating well but circumstances have evolved since it was introduced in 1991. The Soviet bloc collapsed from 1989 onwards and we have a far more diverse population than we did then. This diversity will increase, not only in Ireland but worldwide.
In the dying days of this Administration, will the Minister ask the Irish delegation in the Council of Europe, which includes Members from all sides of this House, to try to ensure the range of countries is extended beyond the 44 countries which have already signed the council's convention? Will he also take an initiative to ensure those countries which have not signed the Hague convention do so? Every country, regardless of tradition or religious background, is interested in its children. There have been terrible abductions of children within one country's borders, in Belgium and elsewhere. We must put in place greater protection for our children and I encourage the Minister to do everything he can to increase the number of signatory countries to the Hague and Council of Europe conventions.
I will ask the Minister for Foreign Affairs to consider what steps could be taken in that regard.
