International child abduction (Hague 1980)

International child abduction is what the law calls it when a child is taken to, or kept in, a different country without the agreement of a person who has rights of custody. It does not mean a stranger taking a child. Most cases involve a parent. The 1980 Hague Convention sets out how the child is to be returned quickly. In Malta it has the force of law under the Child Abduction and Custody Act (Cap. 410).

When the Convention applies

• The child is under sixteen, and was living in a country that is a party to the Convention immediately before the removal or retention (Convention, article 4).
• The removal or retention is wrongful. It breaches rights of custody that someone had under the law of the country where the child normally lived, and those rights were actually being exercised, or would have been (article 3). “Rights of custody” include the right to decide where the child lives (article 5). They can arise from the law, a court decision or an agreement that has legal effect.
• The countries are both bound by it. In Malta, the Convention applies only between Malta and the countries that the Minister for Foreign Affairs has specified by Gazette order, and only from the date stated there (Cap. 410, article 4).

How an application is made

• Through the central authority. In Malta, this is the Chief Executive Officer of the Social Care Standards Authority (Cap. 410, article 5). A person whose child has been taken can apply to the central authority in the country where the child lived, or in any other country that is a party to the Convention (Convention, article 8). The central authority works to find the child, secure a voluntary return if possible, and start court proceedings (article 7).
• Directly to the court. An interested person, or the central authority, can apply to the court for the child’s return. Cases under the Child Abduction and Custody Act are assigned to the Family Court (Code of Organization and Civil Procedure, article 32B(2)(e)), and there is a right of appeal to the Court of Appeal (Cap. 410, article 6). The court can give interim directions to protect the child’s welfare while the application is decided (article 7).
• Not deciding custody. While an application for return is pending, the court receiving it cannot decide on the merits of custody (Convention, article 16). The Convention is about returning the child to the right country for decisions to be made, not about who should look after them in the long run.

What the court decides

• Speed. The court must act quickly. If there is no decision within six weeks of starting, the applicant or the central authority can ask for a statement of the reasons for the delay (article 11).
• Return. If less than a year has passed between the wrongful removal or retention and the start of proceedings, the court orders the child’s return forthwith. If more than a year has passed, the court must still order return unless it is shown that the child is now settled in the new environment (article 12).
• When return may be refused. The court need not order return if the person opposing it shows that: the person with custody was not actually exercising their rights, or agreed to or later accepted the removal; or there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The court may also refuse if the child objects to being returned and is old and mature enough for their views to be taken into account (article 13).

Between EU countries

Where the child is taken between EU countries, Brussels IIb adds rules, including a six-week limit for the first-instance court and special rules where return is refused. See Brussels IIb.

If you are worried

If you fear that your child may be taken abroad, or has already been taken, speed matters. Do not wait for a better moment. Contact us and, where you believe a child is in immediate danger, the police.