The Hague Convention, the European Convention and the Revised Brussels II Regulation (“Brussels IIa”) are all based on a system of Central Authorities. Each member country appoints a Central Authority which functions as the contact point for all applications under the Conventions or the Revised Brussels II Regulation. The Central Authority for Northern Ireland is located in the Civil Policy Division of the Northern Ireland Courts and Tribunals Service, Policy and Legislation Division, 3rd Floor, Laganside House, 23-27 Oxford Street, Belfast BT1 3LA.
The Hague Convention
Abduction cases are covered by articles 3 and 8 of the Hague Convention on the Civil Aspects of International Child Abduction. They are divided into incoming and outgoing cases. Incoming cases are those in which a child is abducted from a Convention Country into Northern Ireland and outgoing cases are those in which a child is abducted from Northern Ireland to another Convention Country.
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A parent whose child has been abducted to or retained in Northern Ireland may make an application for the return of the child to the Central Authority of the country in which they are living. That Central Authority will forward the application to the Central Authority for Northern Ireland. If they prefer a parent may apply directly to the Central Authority for Northern Ireland. The Central Authority will assess the application and if it meets the requirements they will refer it to an experienced solicitor drawn from a firm familiar with these cases. The solicitor appointed is then responsible for:
- making an application for legal aid;
- taking the applicant's instructions;
- assembling the evidence, if necessary with help from the Central Authority;
- filing affidavits of fact and about foreign law and
- instructing counsel and attending the hearing.
The solicitor will often obtain orders to protect the child immediately after the proceedings start. These orders could include orders:
- requiring the surrender of passports, or
- prohibiting the removal of the child from the jurisdiction or a specific address.
If the whereabouts of the child is not known, the solicitor may make an application for a 'seek and find order' (Family Law Act, 1986 Section 34), or orders requiring the disclosure of information (Family Law Act, 1986 Section 33).
All incoming cases are dealt with in the High Court of Justice in Northern Ireland sitting in Belfast usually by a High Court judge of the Family Division. This ensures that these cases are listed for hearing very quickly. Adjournments are limited to a maximum of 21 days, so that the court exercises control over the progress of the case.
Applicants are not normally required to personally attend the hearing. Legal aid is normally available to applicants seeking the return of a child under the Hague Convention.
All applications made after 1 March 2005 which involve abductions from countries within the European Union (other than Denmark) will be handled under the Revised Brussels II Regulation which is discussed below.
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Outgoing abduction cases are those where children are abducted or retained away from Northern Ireland in a country which is a party to the Hague Convention. Cases within the European Union are handled under the Revised Brussels II Regulation which is explained in the next section. In outgoing cases the Central Authority discusses the circumstances with the applicant or their solicitor and may ask them to fill in an Application (Questionnaire) for the return of the child. Application forms and explanatory notes are available on this website. The Central Authority may also ask the parent to make a written statement, and provide copies of any court orders. It is useful to provide a recent photo of the child and also a photo of the person who has taken the child from, or brought the child to, Northern Ireland. An application is then prepared on the basis of the material provided. That application and supporting documents is sent off, with translations if necessary, to the Central Authority of the country to which the child has been abducted or retained. Thereafter, the Central Authority will monitor the progress of the case, liaise with the Central Authority of the requested state and the applicant, give advice about the law in Northern Ireland and do all that it can to help to bring the case to a successful conclusion. There is no charge for the services of the Central Authority.
It is important to understand that the speed and manner in which a case is conducted in the overseas country are entirely dependent upon the internal procedures of that country. Every country has exclusive jurisdiction within its own territory. The Northern Ireland Central Authority provides a point of contact between the applicant or solicitor and the Central Authority of each country but it cannot force another country to decide cases or enforce laws in a certain way. It will, however do all it can to press for a swift resolution of the matter and will keep you or your solicitor informed of progress.
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The Revised Brussels II Regulation
This Regulation applies where a child has been abducted to or from a European Union country. Forms are available from the Northern Ireland Courts and Tribunals Service on its website. The same form is used for all abductions whether they be under the Hague Convention or the Revised Brussels II Regulation: Application (Questionnaire)and Notes for Guidance are available on this website.
In general terms these applications are processed in the same way as applications under the Hague Convention.
There are 4 major differences in applications which come under the Revised Brussels II Regulation. They are:
- The court is required in every case to hear the views of the child unless this appears inappropriate having regard to the age or degree of maturity of the child (Revised Brussels II Regulation article 11.2). There is no process prescribed for hearing the child in the courts in Northern Ireland.
- The court is required to hear the views of the applicant parent if it is considering not returning the child. Again no process is prescribed for how this is to be done (Revised Brussels II Regulation article 11.5)
- The court may not refuse to order a return even if a defence of grave risk to the child has been made out under article 13(b) of the Hague Convention provided that it is established that adequate arrangements have been made to ensure the protection of the child after his or her return.
- Where an order refusing a return has been made, the applicant parent (or the abducting parent) may within 3 months of the non return order, request that the court of the country from which the child was abducted hear and determine the issue of custody/residence of the child. If after such a hearing the court in the country from which the child was abducted determines that the child should return to that country then the court of the country to which the child has been abducted must enforce that order notwithstanding its previous order not to return the child. If no application is made within the 3 month period, the country to which the child has been abducted will have jurisdiction to make decisions about the child including custody/residence and access/contact.
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The European Convention
Applications under the European Convention are dealt with by the Northern Ireland Central Authority in the same manner as return applications under the Hague Convention. The application form does not ask the applicant to specify which convention he or she wishes to invoke, but the Central Authority will often suggest the use of one or the other.
Where an order exists, the applicant may find it to their advantage to use the European Convention in access cases because the existing order may be enforced. In addition, applicants are entitled to legal aid under Article 3A of the Legal Aid (General) Regulations (Northern Ireland)
Applications under the Convention between countries which are also members of the European Union (other than Denmark) will be handled under the Revised Brussels II Regulation from 1 March 2005.
Costs of an application for the return of a child
The cost of an application for the return of a child is often a matter of concern to parents. In most countries no payment for legal proceedings is required for applications made under the Hague Convention. The Central Authority may be able to give you information regarding legal costs in specific countries. For example in the USA, legal aid is generally not available. Efforts are therefore made by the US Central Authority, in cases of financial need, to provide legal representation for applicants either at a reduced rate or free of charge.
Legal aid is available to meet the applicant's legal costs for applications for the return of a child made in Northern Ireland under the Revised Brussels II Regulation and European Convention. In Northern Ireland, legal aid is governed by the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 and associated Rules and Regulations. The process of making an application for legal aid is detailed at Article 3 of the Legal Aid (General) Regulations (Northern Ireland) 1965 and Article 3A makes specific reference to the Hague and European Conventions.
For further information regarding legal aid and the Conventions and Regulation, including how to make an application, you should consult a solicitor. Details are available from the Citizen’s Advice Bureau, independent advice centres, the Yellow Pages, the Legal Aid Solicitors’ List (which is available in local libraries) or on the ‘Solicitors’ section of the Legal Aid Department website (www.nilad.org)
Expenses incurred when returning the child are not covered by the conventions nor by the Revised Brussels II Regulation but applicants may request in the questionnaire that an order for travel costs be made against the person who has removed/retained the child. The court will consider the request but is not bound to make such an order.
There is no charge for the services provided by the Central Authority, including the translation of documents necessary to an application under one of the Conventions or the Regulation.
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