Law on child abduction in Northern Ireland
In Northern Ireland child abduction involves both the civil and criminal law. However, once a child has been removed from the United Kingdom, parental abduction is usually treated as a civil matter.
The Child Abduction and Custody Act 1985
The Child Abduction and Custody Act 1985 gives effect to the Hague and European Conventions in English law. In Northern Ireland the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 and the Legal Aid (General) Regulations (Northern Ireland) 1965 provide financial support for litigants, the Family Law Act 1986 has provisions for making orders for the protection of children and the Child Abduction (Northern Ireland) Order 1985 makes it a criminal offence for a person connected with a child to take or send the child out of the United Kingdom without the appropriate consent. A parent can also be charged with the common law offence of kidnapping.
The Revised Brussels II Regulation (“Brussels IIa”) is effective without the need for domestic legislation and the court rules have been amended to accommodate the regulation.
The law in Northern Ireland is primarily governed by the Children (Northern Ireland) Order 1995, (“the 1995 Order”), which came into operation in 1996. This Order created the new concept of parental responsibility, meaning the duties, rights and authority which a parent has in respect of their child.
When a child's parents are married, they both have parental responsibility. When the father is not married to the mother, he does not have parental responsibility simply by being the father, but he may acquire parental responsibility for the child if
- he becomes registered as the child's father
- he and the child's mother make an agreement (a "parental responsibility agreement") providing for him to have parental responsibility for the child
- the court, on his application, orders that he shall have parental responsibility for the child
The 1995 Order emphasises that parents have continuing responsibility for their children and generally should have continued involvement in the children's upbringing even after separation. The 1995 Order provides a flexible system of orders intended to settle particular matters. Each parent is bound to obey any orders made under the Children Order. Orders made under the 1995 Order are based on the principle that the best interests of the child are the paramount consideration.
The orders available to the courts include residence orders, which settle with whom the child is to live, and contact orders, which deal with any form of contact which the child is to have with the other parent and significant people such as grandparents or step-parents. Orders expressed in terms of custody and access continue to have effect unless a court discharges and replaces them with a residence or contact order or the child turns 18.
Unless the court orders otherwise, a parent with a residence order may take a child out of the United Kingdom for a period of up to 28 days without a prior application to the court or the consent of the other parent.
Failure or refusal to return the child to the United Kingdom once this 28 day period has expired will constitute a wrongful retention of the child for the purposes of the Hague Convention and the Revised Brussels II Regulation.
In cases where abduction is feared and there is evidence to support that fear, the court may make a prohibited steps order to restrain either or both parents, from taking the child abroad at all. Additionally, an application may be brought for the child to be made a ward of the High Court, which imposes an automatic prohibition on taking the child out of the United Kingdom. Orders may, if necessary, be made ex parte (without notice to the other side).
Also, where there is a contact/access order in force and it is feared that the child may be abducted by the person exercising contact, an application may be made for a variation of the order, for example, to provide for the contact to be supervised.
A wide range of orders may be made under the High Court's inherent jurisdiction with respect to children or as part of wardship proceedings.
The Family Law Act 1986 contains powers for the court to order that a child’s whereabouts be disclosed; to order the recovery of a child; to restrict the removal of a child from the United Kingdom and to require the surrender of any passport containing details of a child.
The United Kingdom Passport Agency (see Useful Addresses and Links) can be asked not to issue passports, and the police operate a "Port Stop" system to prevent children being taken out of the country through the principal ports and airports.
Under the Child Abduction (Northern Ireland) Order 1985, it is a criminal offence in Northern Ireland for any person connected with a child, to take or send the child out of the United Kingdom without the consent of any other person who has parental responsibility for the child. A parent who has the right to have contact with or access to a child will usually also have parental responsibility. The term 'connected with a child' is defined in Article 3 of the Child Abduction (Northern Ireland) Order 1985 and includes the parents or guardians of a child and anyone who has parental responsibility for the child.
No offence is committed, however, where a child is the subject of a custody/residence order, if the court which made the order has consented to the child being removed from the country.
Summary of statutes and regulations
- Child Abduction and Custody Act 1985
- Child Abduction (Northern Ireland) Order 1985
- Family Law Act 1986
- The Legal Aid (General) Regulations (Northern Ireland) 1965
- The Legal Aid, Advice and Assistance (Northern Ireland) Order 1981
- Council Regulation (EU) 2201/2003 (Brussels IIa)
- The Children (Northern Ireland) Order 1995
- The Magistrates’ Court (Children (Northern Ireland) Order 1995) Rules (Northern Ireland) 1996
- The Family Proceedings Rules (Northern Ireland) 1996
- The Family Proceedings (Amendment No.2) Rules (Northern Ireland) 2005
- Family Law Act (Northern Ireland) 2001