by Miceál O’Hurley
DUBLIN ― This Christmas, thousands of parents and extended families awoke to find the stockings they hung for children went un-disturbed. It was not disinterest on the part of the children but the reality that international parental child abduction continues to grow as a plague on civilisation. Last year, the Missing Children in Europe organisation reports that more than 250,000 children are reported as missing in Europe. Approximately 2% of these reported cases (1,400 children) are classified as international parental child abduction.
According to Freedom of Information Act requests, there are almost 100 Irish children on this list. The number is certainly underreported as the barriers to left behind parents to successfully report their child as abducted by another parent are daunting and require knowledge outside of the scope of most parents and often professionals in the field, including policing officials. The consequence of underreporting only serves to mask the scale of the problem and give the abducted children access to justice.
The problem of international parental child abduction has risen precipitously with the spread of globalization since diplomats attempted to treat the problem with the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Increased access to affordable airline travel, globalisation of the job market, myriad wars and famines and other dynamics have all bolstered the likelihood that a child born today may be the issue of parents from differing states, cultures, religions and legal systems. Unsurprisingly, the recovery of children abducted to their jurisdiction of habitual residence is complex and resource demanding.
In 2023, the 8th Special Commission meeting on the Hague Conference on Private International Law released startling statistics about the plague of international parental child abduction and the toll it takes on abducted children and families. The statistics themselves betray a deplorable commitment to the health and welfare of children even by the 103 contracting states to the Hague Convention on the Civil Aspects of International Child Abduction. Only 71 of the 103 (2/3rds of all contracting states) bothered to responded to the 8th Special Commission’s request for information from their Central Authorities, the body the treaty requires to maintain information and process cases of international child abduction. The reluctance of more than 1/3rd of all contracting states to even contribute accurate information reflects a fundamental lack of commitment to safeguarding children and upholding international law despite claims to the contrary.
The 8th Special Commission reports that the success rate in returning children is only 39% (328 cases by voluntary agreement and 479 by judicial order). By contrast, a child is almost as likely to engage in “self-return” once they have reached their teens as they are to be recovered by police intervention. The overall return rate was lower than in 2015 (43%), 2008 (44%), and 2003 (44%). The decline in return rates should be alarming to the international community, especially diplomats who inevitably have to become involved in such cases and yet the deficient participation rate in even collecting accurate data reflects a fundamental lack of commitment to children in international law and diplomacy.
Beyond the dismal return-rate, the Hague Convention was designed to ameliorate the length of time required to achieved the rare return of a child to their country of habitual residence grows longer each year. Gender bias continues to be vaunted as a reason for the declining return rate as 75% of “abducting” parents were mothers. Critics cite concerns over gender, domestic violence claims and poverty as deciding factors in defeating the aims and goals of the Hague Convention designed to ensure the expeditious return of abducted children to their jurisdiction of habitual residence. Increasingly, the “well settled” exemption to returning a child, which many claim rewards successful abduction by eluding law enforcement long-enough, is cited as a leading reason children aren’t returned. Even once located, judicial backlogs and lack of case management causes cases to linger in courts for years, often on procedural issues. Unfortunately, web-based abductor-assistance groups often counsel abducting parents on how to successfully defeat the Hague Convention, even advising on how to obtain fake passports and secure legal residency in foreign jurisdictions.
The average overall number of days to resolve a return application under the Hague Convention was 207 days – a timeline significantly higher than 2015 (164 days), and 2008 (188 days). Claims by contracting states that the Covid pandemic is the causal factor in the delays fall flat when the timelines are compared which exclude Covid impacted years.
Invariably, left behind parents claim Central Authorities are decidedly more concerned with “success rates” and encourage them to agree to “access only agreements” instead of seeking the successful return of the children. Remorse is typical for those who agree to such arrangements as the cost of travel to exercise access in a foreign jurisdiction, the ability to maintain a long-distance relationship, lack of commitment to ongoing telephone/video access and the cost of availing of legal remedies when access is denied present significant barriers to maintaining a parent-child relationship. In the face of profoundly poor return rates and the inordinate cost of legal services related to international child abduction cause many parents to “give up” or otherwise engage in voluntary agreements they know have little chance of success or durability.
Even when children are returned after long-periods of parental abduction psychologists and jurists alike complain the primary bond the children once enjoyed with their left-behind parent and families was effectively terminated to the significant detriment of the abducted children. However, as international parental child abductions represent only about 2% of all cases of “missing” children the lamentable comments and observations go without remedy as a reflection of prioritising resources over the rights of children and left behind parents.
Consider how the very language that has developed around Hague cases has become troubling. The failure to treat these cases as criminal matters has led to the use of terms like “taking parent” instead of “abducting parent” – a subtle but effective way of continuing to restrain the dynamic and its players to civil forums. Many contracting states have failed to even create clear criminal sanctions for parental child abductions and where they have, prosecutors are more often than not inclined to refrain from their use instead resorting to civil remedies, no matter how ineffective.
In 2023, European Parliament Vice President Ewa Kopacz opened the Missing Children in Europe (MCE) policy forum sharing, “[In my] experience working with parental abduction cases, the immediate activation of procedures, cross-border cooperation, and efficient collaboration between actors are crucial”. Albeit parents in Ireland find “immediate” assistance from the state grossly lacking. Some parents do manage to obtain support from their local Garda station resulting in criminal sanctions against the abducting parents but it often takes multiple visits and they are advised to hire solicitors before a report is taken.
In Ireland, where the Non-Fatal Offences Against the Person Act, 1997 provides language that provides for criminal sanctions for a parent who deprives another parent of their rights of custody and guardianship, the application of the law is grossly uneven. The Citizens Information website clearly states, “International child abduction is a criminal offence in Ireland” and yet many left behind parents claim they cannot report their children as abducted by the other parent as Garda routinely claim, “They have the same rights as you and it isn’t a crime”. As Garda are the gatekeepers for the process, how they assist, or refuse assistance to left behind parents, seems to be the most critical factor in commencing the process and recovering abducted children.
The system is further complicated by a lack of knowledge of how the international child abduction remedial works. Many Garda and legal professionals advise left behind parents to contact the “Central Authority”, a body designed to process and act to process claims of international child abduction under the framework of the Hague Convention. The Central Authority, however, is not empowered to provide legal assistance, give guidance or otherwise engage when the child is abducted to non-contracting States. It is a feature of the system that the state is the client of the Central Authority – not the left behind parent or child and invariable families find Central Authorities “lacking in compassion” or “failing to understand our needs”.
Consequently, parents in these situations, and it is a growing number, often flounder in getting assistance defying the observation of the European Parliament Vice President Ewa Kopacz, “… immediate activation of procedures, cross-border cooperation, and efficient collaboration between actors are crucial”. Children are often successfully abducted while they are still in-transit, can be interdicted thus allowing abductors to be successful in their abduction and even engage in “further abduction” once reaching a known destination to avoid detection and detention.
Still, many left-behind parents report being abjectly rebuffed by An Garda Siochana even when fact patterns to their circumstances mirror almost exactly the experience of other parents whose abduction cases reach the media headlines. The anomalies in reporting and action by Ireland’s policing force and the Director of Public Prosecution continue to go without discernable review leading many to claim gender bias is built-in to the system.
There are innumerous instances of parents refusing to sign passport applications or withholding passports from the other parent out of legitimate concerns the children will be abducted. Too often the judiciary orders the passports to be provided to the other parent and when the abduction becomes a reality little if any responsibility is claimed on the part of the State. Scores of parents report reluctantly signing passport applications or providing the other parent access to a child’s passport when they have grounded concerns that international child abduction will follow for fear of judges accusing them of being hostile to the other parent. After the abduction is established they too often face the then accusation that they should not have cooperated with the other parent and are sometimes told criminal sanctions cannot be pursued because they gave permission to travel. The system is inherently broken and yet there is little if any discernable effort to reform it.
One of the areas in dire need of attention to adequately address the blight that is international child abduction is research (or the lack thereof). Not only do contracting states regularly decline to produce reliable information (if they provide any at all) but the various departments that deal with child abduction, from policing forces, justice ministries, immigration officials and diplomats fail to share information that would allow for an accurate assessment of the scale and scope of the problem to be developed let alone an analysis of how structural impediments might be removed be undertaken.
Very little research has been conducted or published on the effects of parental child abduction on the children, their near and long-term mental health status or how the situation effects left-behind parents and families. The lack of a comprehensive and thoroughly analysed body of research in these areas undermine legal arguments that would urge expedience on the part of the judiciary but fail to assist mental health professionals who may only treat a patient impacted by international child abduction once in their careers. It is incumbent upon Governments to fund research and training for legal and health professionals to help victims of international child abduction.
Beyond all this there has been a general reluctance to consider the policy implications of continuing to deal with international child abduction as has become custom with contracting countries. Diplomats generally claim they are providing ample consular assistance when in truth it generally amounts to providing victims with a printed list of lawyers who advertise their services in the destination country where the child has been abducted. These lists are often outdated, inaccurate and invariably include lawyers who speak the vernacular despite having little specialisation in the international aspects of child abduction, family and/or criminal law. Victims claim they increasingly turn to the internet given the paltry information provided by consular officials.
Consequently, abducting parents discover they are in a significantly empowered position, despite the unlawfulness of their conduct, specifically because the left-behind parent must take-on the extraordinary financial burden of attempting to recover a child from a system that fails to return even half of the children abducted. Legal aid organisations generally refuse to provide legal resources where the child is no longer resident such that even impoverished parents who would normally benefit from free or reduced cost legal assistance find themselves incapable of even affording legal services.
In the case of states contracting to the Hague Convention, Central Authorities should carry the burden of prosecuting the return claims, however, navigating the legal system around international child abduction often requires private counsel to ensure the best outcomes from a Central Authority case. Legal aid assistance is often barred from parents seeking advice concerning a Hague Convention recovery under the premise that the Central Authority will care for the left-behind parent. This is never the case and Central Authorities overwhelmingly see their roles as processing requests limited to jurisdictional issues and decline to give advice concerning the ‘best interests’ of the children at the heart of matters. With the average age of children being only 6.7 years of age the lack of independent legal representation inevitably means the child’s ‘best interest’ is subsumed by the abducting or left-behind parent – wholly neglecting the rights to which politicians claim children are entitled by Constitutions or instruments like the EU Charter of Fundamental Rights.
There is simply no integrity in claiming the Hague Convention, Central Authorities, Legal Aid or even national laws are child-focused. Such claims are political, not practical as the outcomes of international parental child abductions demonstrate.
The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction was an noble and forward-thinking instrument when it was passed almost 45-years ago. However, it has failed to develop as intended (the lack of bi-lateral agreements on the return of abducted children to their jurisdictions of habitual residents between contracting and non-contracting states is indicative of inaction and a lack of advancement on the issue) and fails to adequately address the fundamentally different world that exists today in terms of international travel, refugees, displaced persons and the whole host of other issues that render the treaty inadequate to this age.
For now, and for too many parents, the platitudes of politicians voicing their “concern” remains woefully inadequate as their children remain abroad in the hands of persons who believe self-help remains the best option to achieve their goals of predominant child access or to deprive a child of another parent and extended family. For the children, the breach of primary relationship bonds, the length of time spent in uncertainty and the disruption to family, friends, schools and locales known and familiar to them damage their psyche and healthy development, often with life-long consequences. The situation is untenable and yet it is permitted to continue due to a lack of political will.
This Christmas politicians, policy makers and diplomats can finally resolve to address this festering problem and bring some sense of justice and care to the children who are victims of this appalling, continuing debacle. Accurately assessing the problem with fact-based data collection, addressing structural obstacles to justice and good outcomes, properly resourcing left-behind parents, funding research, treatment and care and forging bilateral agreements to remedy the situation as a predicate for trade, cultural and military cooperation would be a good place to start.
For the left behind parents and families who remain concerned about their child(ren’s) well-being while abducted, only hope remains which, given the time of year, must abide until responsible governments finally meet their obligation of caring for the most vulnerable in their society. If abducted children aren’t included in that consideration we must genuinely consider the moral character of continuing with governments, politicians and civil servants that abide the immoral and unlawful activity that harms so many children and families year-after-year.
Given that 1/3rd of all contracting states don’t bother to provide statistics, the hope nourished by left behind parents, families and children’s advocates that diplomats and governments will finally address the long-neglected area of international law is fleeting. Its time for governments to take this matter more seriously, with domestic solutions, giving full cooperation to implementing the Hague Convention and pursuing bilateral agreements with non-contracting countries as a demonstration of moral leadership and enhancing international law and cooperation for society’s most vulnerable.
