Home > Children and the Law, Families and the Law, Gender, Sexuality and the Law > Guest Post: Kieran Walsh on Forced Marriage and Child Abduction

Guest Post: Kieran Walsh on Forced Marriage and Child Abduction

We are pleased to welcome a third guest post from Kieran Walsh. In this post, Kieran continues Mairead’s discussion of forced marriage in the Republic and considers whether child abduction law could be used in Ireland to protect children from being forced into marriage. He argues, in particular, for a child-focused approach to child abduction, which would allow the relevant law to be deployed effectively even outside the realm of custody disputes.

The recent forced marriage decision in Northern Ireland raises some interesting, and perhaps interminable, problems for cross-border levels of compliance with children’s rights and child protection instruments. As outlined previously by Mairead, the Northern Ireland courts granted an order to under the Forced Marriage (Civil Protection) Act 2007 which prevented two girls, aged 12 and 14, from travelling to Pakistan where they were to be married. Ireland has no similar means of protecting children from forced marriage.

One avenue of cross-border cooperation which may strengthen protection against forced marriage is child abduction. This is widely regarded as one of the more complex legal issues, an unsurprising view given that it is governed by the Hague Convention, the Luxembourg Convention, Brussels II bis Regulation and the Child Abduction and Enforcement of Custody Orders Act 1991. A child abduction/forced marriage scenario may arise in a number of ways. First, the child may be removed from either the Republic or the North to a state in which the child is to be married. For this, a forced marriage act is the best protection available. Alternatively, a child resident one side of the border may be brought to the other side. This latter scenario can be subdivided in two ways. Either a child could be abducted to one part of the island in order to facilitate travel to a third state (ie, South to North to Pakistan) or a child could flee (or be brought) across the border seeking protection.

While the legal framework surrounding child abduction was initially designed to protect rights of parents to custody and access, it is possible to argue that it has a significant protective element based on the child’s best interests. In PS v AS [1998] 2 IR 244, Denham J argued that the Hague Convention is based on the concept that the child’s interests are paramount. However, in Re R (abduction: consent) [1999] 1 FLR 828, it was made clear that the welfare of the child is not paramount in abduction proceedings.

Article 3 of the Hague Convention sets out that the removal of a child from or the retention of a child is considered wrongful if the action is in breach of a right of custody. The Convention also applies to rights of access. These phrases must be interpreted independently of the technical meaning ascribed to custody and access in family law proceedings and that a central aim is to ensure stability in a child’s life. However, the instability resulting from clandestine North-South journeys can be justified in a number of ways. Most pressing for a forced marriage scenario is the defence to an application to return the child that the child faces a grave risk of physical or psychological harm or if they would otherwise be placed in an intolerable situation. This is set out in Art 13(b) of the Hague Convention.

Ordinarily in abduction cases, a left behind parent will ask the court in the country to which the child has been taken to return them. It is only in quite exceptional cases that the return will be refused. So in cases where abduction takes place to facilitate forced marriage, return of the child could be demanded. In cases where the child is fleeing marriage, return could be objected to on the basis that forced marriage constitutes a grave risk of harm. In CK v CK [1994] 1 IR, it was stated that the child’s best interests would be best served by returning them to the state of their habitual residence. Yet if returning them exposed them to the risk of forced marriage, clearly the Art 13 (b) defence would be successful. The Canadian Supreme Court in Thompson v Thompson [1994] 3 SCR 551 stated quite simply that “from a child centred perspective, harm is harm”. This statement was endorsed by the Irish High Court in CN v PKD [2004] IEHC 418. It would appear that if, from the child’s perspective forced marriage is harmful or places them in an intolerable situation, any cultural arguments about the validity of forced marriage become irrelevant. This argument is strengthened by Art 24.2 of the EU Charter of Fundamental Rights which makes clear that in any matter affecting children, their best interests must be a primary consideration. This would likely result in an undeniably liberal and universalist manner of interpreting the Convention’s provisions. This approach is to be welcomed. It may herald a new child focussed manner of applying the Convention. Given the problems caused by the desire to focus on parental custody and access rights, it may be that the desire to prevent forced marriage may allow a greater emphasis on children’s best interests, albeit by the back door.

It is important to note that while the vast majority of cases child abduction involves parental dispute, the state also has a role to play. Under Article 2 of the Hague Convention a contracting state has to take all appropriate measures to ensure the implementation of the Convention. Article 2 makes clear “the most expeditious procedures” should be used to enforce the Convention. This usually means bringing application on an ex parte basis, and also by permitting the state to actually play an active role in proceedings.

A child faced with forced marriage may be either a ward of court or be the subject of orders under the Child Care Act 1991. The state would be entitled to invoke s. 37 of the Child Abduction Act in a case such as this. Section 37 permits the Gardaí to detain a child who the court fears is about to be removed from the state. Applications for injunctions preventing the removal of the child from the state can also be made.

S. 9(2) of the Child Abduction Act states that “where the Central Authority in the State [in Ireland, this is the High Court] receives any such application [seeking the return of the child] and is satisfied that the application is an application to which the Hague Convention applies, it shall take action or cause action to be taken under that Convention to secure the return of the child.” This obliges the High Court to cause action to be taken to ensure that the application is made.

The ability of the state to bring an application under the Act is further provided for by Order 133 Rule 2 of the Rules of the Superior Courts which permits the Minister for Justice to bring a child abduction application on an ex parte basis. The decision of DGH v Minister for Justice [2003] IEHC 47 makes clear that while the Minister is under no obligation to bring an application under Ord. 133, it is possible for them to do so if they see fit. So while, as in the G and D case, the parents may both support the marriage, children currently in Ireland need not be without protection if the state has intervened by way of warship or the Child Care Act. This is of course dependant on the state becoming involved in the first place, which is itself not a guarantee.

While it is preferable to have specific legislation dealing with protection from forced marriage, child abduction may provide a measure of relief prior to such a preference becoming a reality.

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