International Child Custody / Access Disputes

 

Increase in travel inevitably leads to increase in the potential number of cross-border disputes. Children come at the centre of cross-border disputes when parents live in different countries. Issues commonly faced by parents residing in different countries are:    

  1. Child Abduction - when a parent moves the child from one country to another without the consent of other parent or in violation of a court order. 
  2. Child’s Residence - parents disagree which country the child should be brought up in. 
  3. Child Access -  when a non-custodial parent wishes  to exercise access rights with a child (i.e. spend time with the child) but the child is living in another country and the other parent is opposing such access.


 

Wrongful Removal (Child Abduction)
Children are said to be abducted when they are removed from the country of their habitual residence and brought into another country without the consent of both parents or in breach of a court order. In most cases child abduction happens when one parents decides to take the child to live in another country without the consent of the other parent. 

The civil remedy in abduction cases is that the Family Court orders that the child is returned to the country of origin, so that the child be re-united with the left behind parent. Civil proceedings requiring the child to be return to the country of origin are often instituted once that the child is located.

Child abduction is a criminal offence in many countries and the abducting person may face criminal charges.


 

Child Abduction Law
The 1980 Hague Convention requires that children who have been wrongfully removed from their country of habitual residence should be promptly returned to their former place of habitual residence.  This convention was ratified by Malta in 2000. 

Countries who ratified the 1980 Convention have Central Authorities whose function is to:

  1. assist local parents retrieve their children from abroad 
  2. assist foreign parents retrieve children who are being illegally retained in Malta
  3. plan arrangements for parent-child contact when it is established that the child is not to be removed to a country of former habitual residence. 
     

In Malta the Central Authority under the 1980 Hague Convention is the Department for Social Welfare Standards and the 1980 Hague Convention is implemented with Chapter 410 of the Laws of Malta.

A list of countries which have signed and ratified the 1980 Hague Convention can be found here. Where a child has been abducted into a country that has not ratified the 1980 Hague Convention, such individual must institute return proceeding through the assistance of a lawyer in the country where the child has been abducted into. 

When the child has been removed from one EU country and taken into another, except Denmark then EC Regulation 2201/2003 (a.k.a. Brussels IIbis) becomes applicable. This regulation strengthens the implementation of the 1980 Hague Convention and provides for the recognition and enforcement of court judgements concerning children across the EU.


 

Afraid that Your Child will be Abducted?
If you are afraid that someone will take your child out of Malta you may request the Family Court to order an impediment of departure on the minor. The impediment on departure will be served on the immigration police who are stationed at the important ports in Malta, including the Malta Airport. In such cases one should obtain legal advice from a lawyer as quickly as possible.


 

Missing Children & Emergency Situations
When a child goes missing any interested individual may ask the police to trace the missing child. The police have a duty to activate missing persons’ alert when such children become missing. In view that police officers often have problems understanding child-custody disputes, one many often need the assistance of a lawyer in order to ensure that police issue such alerts accordingly. 

In case of emergency situations relating to child abduction one is to contact a lawyer who is expert in the field of child abduction who will be able to take timely decisions and guide an aggrieved parent accordingly. 

 


 

Parents Accused of Child Abduction

A person accused with abducting a child may bring forward one or more several defences under the 1980 Hague Convention. The court cannot order a return in the following circumstances:

 

  1. Grave Risk or Harm: A child should not be returned to a place where he or she will be exposed to grave risk or physical or psychological harm or otherwise the child will be place the child in an intolerable situation. Foreign courts have ruled that before ordering a return the court must satisfy itself that the children will in fact, and not just in legal theory, be protected if returned to their abusers custody (Article 13(b) – Hague Convention)
  2. Consent: A child should not be returned to the country of origin if the requesting parent consented to the child being placed abroad. Such consent may be either explicit or implicit. (Article 13(a) – Hague Convention)
  3. Acquiescence: There is no child abduction if after the child has been moved out of the country, the left behind parent subsequently agreed (acquiesced) to such a removal or a retention. The left behind parent may acquiescence through words, actions and behaviour after the wrongful removal. In order to prove acquiescence one must show that the left behind parent accepted that the child is relocated to another country and has now changed his or her mind about this.
  4. Settlement: If a child has now settled within the new environment it is possible that the court does not order the return. This defence may only be raised if the judicial proceedings were not started within a 12 month period after the wrongful removal.
  5. Custody Rights: The left behind parent needs to show that he or she has sufficient custody rights to determine the child’s place of residence. If the left behind parent does not enjoy such custody rights, then such parent may not require the child to be return to the former country of origin.
  6.  Age and understanding:   A court may refuse to return a child if it is shown that the child does not want to be returned to the former country and such child has attained an age and degree of maturity that is appropriate for his or her views to be considered in these circumstances. 

 


 

Lawful Resettlement of a Child
A child can be resettled into another country if both parents consent to this and there is no court order prohibiting the child to leave the country. If consent is not given that parent may ask the court to order that the child be allowed to travel abroad, either for short term visits or for long term durations.


 

International Child Access
A parent who has access rights to a child and is living in another country who has difficulties exercising access may be assisted through the 1980 Hague Convention and EC Regulation 2201/2003 (Brussels II bis) where applicable.

The 1980 Hague Convention is applicable where the parent enjoys the right to take a child for a limited period to a foreign country. Most parents who enjoy access rights also enjoy the right to take a child to another country. In such case the parent may apply to a Central Authority under 1980 Hague Convention and the Central Authorities are bound to cooperate and assist parents to peacefully enjoy their access rights. The Central Authorities should take steps to remove, as far as possible, all obstacles to the exercise of such rights.

The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.


 

Child Access within the European Union
Where a parent in a EU country wishes to exercise access rights on a child that is living in another EU member state, that parent may request the court where the child is currently living in to organise “practical arrangements” for that parent to be able to enjoy the access rights. Central Authorities are bound to help parents in these circumstances.