Frequently asked
questions
How
do I apply for the return of my child via the ICACU ?
If the
answer to the questions set out below is yes, you should complete
an application form
for return of a child. A guide to completing the form is also on
the website. You should then forward the form and supporting documents
to the ICACU.
If the
answer is no to any of the questions, you should contact the ICACU
for advice before completing the questionnaire.
-
Is
your child aged under 16 years?
-
Prior
to the abduction, had your child been living permanently in
England & Wales?
-
Do
you have parental responsibility for your child?
How
quickly do I have to make my application after my child's abduction
?
It is
advisable to make your application
to the ICACU as soon as possible. However, if you believe there
is a chance the abducting parent will return your child voluntarily,
you may decide to delay making a formal application. Any delay will
need to be explained to the Central Authority in the foreign jurisdiction.
If there is a legitimate reason, this will not cause a problem.
It is as well to remember, however, that if the delay is over 12
months, your application can be rejected by the foreign Central
Authority and if accepted a return may be refused on the basis that
the child is now settled in the new country.
When
I have submitted a completed questionnaire to the ICACU, what happens
next ?
A case manager at the Unit will check your application and will
prepare a formal request using the information you have provided.
The application and supporting documents including any necessary
translations will be submitted to the Central Authority in the country
where your child has been taken. How your application is dealt with
in the foreign jurisdiction varies slightly from one country to
another. Broadly speaking, if it is not possible to organise the
voluntarily return of your child to England & Wales, arrangements
will be made for your application to be filed at the appropriate
court in the jurisdiction where your child is living, for a judicial
determination.
How
quickly will my application be processed ?
The ICACU will aim to forward your application to the foreign Central
Authority within 5 working days. Cases where documents need to be
translated may be delayed by a few days.
The ICACU
has no control over how quickly your application is processed by
the foreign Central Authority. However, the case manager will liase
regularly with the Central Authority to ensure that your application
is not delayed unnecessarily.
What
is the cost of my application ?
The ICACU
makes no charge for processing your application. The Central Authority
in the foreign jurisdiction will make no charge for any work that
they do. However, in some countries you may be required to pay all
or part of the cost of legal representation. You should also be
prepared to pay the travel costs for your child's return. You may
also have to meet travel costs if you are required to give evidence
in the proceedings in the foreign country. This is not usually necessary
but may be required in certain cases such as for example in cases
under the Revised Brussels II Regulation where the foreign court
is considering making a non return order.
If you
are seeking contact/access with your child in a Hague Convention
country outside the European Union, non means tested legal aid is
only available in a very few countries such as Australia and New
Zealand. You should contact the ICACU to obtain details.
If you
are seeking to enforce access orders made within the Europoean Union
(other than Denmark) you will be eligible for legal aid in the country
in which enforcement is sought provided you are eligible for legal
aid in the United Kingdom.
If you
are seeking to enforce access orders within Europe but outside the
EU you may be eligible for non means tested legal aid if the country
is a signatory to the European onvention.
When
will I hear how my application is progressing ?
The ICACU will inform you, or your solicitor in this jurisdiction,
as soon as your application is forwarded to the Central Authority
abroad. You will then receive progress reports as soon as any information
is received about how the application is proceeding. You should
contact the ICACU if you are concerned because you have not received
an update.
Will
I have to travel to the country where my child has been taken for
a court hearing ?
Courts
dealing with applications under the Hague Convention are encouraged
to do so without the need for the applicant being present at hearings.
However, in some cases where an application is strongly defended
by the abducting parent, the court requests the attendance of the
applicant so that evidence from both parents can be given in person.
For abduction
cases heard under the Revised Brussels II Regulation it may be necessary
for you to give evidence if the foreign court is considering not
returning your child. In these circumstances arrangements for giving
your evidence may be made under the Brussels II Regulation (EC)
No 1206/2001 (the Evidence Regulation). These arrangements include
the taking of evidence by video or telephone conference or the foreign
court may ask the court of the requesting state to take the evidence.
This is set out in the Practice Guide for the application of the
Revised Brussels II Regulation at chapter VII section 2.3.
If
I do have to travel abroad to attend court, who will assist me in
the foreign country ?
You will need to make your own travel and accommodation arrangements.
Before you travel the ICACU will provide you with the address of
the Court and the time and date of the hearing. A lawyer will attend
the hearing to present your application to the court. If there is
a language difficulty, you should discuss with the ICACU before
you travel whether an interpreter can be arranged for the court
hearing.
If
the abducting parent decides to remain in the foreign country, how
will arrangements be made for my child's return to England &
Wales ?
Although
the court in the foreign jurisdiction can order the return of your
child to England & Wales, the Judge will have no authority to
compel the abducting parent to return with your child. If your application
is successful, you may need to travel to collect your child if the
abducting parent does not wish to return. You should be prepared
for this eventuality.
If
I do not know the exact whereabouts of my child abroad, what steps
will be taken to locate him or her ?
If you
know which country your child has been taken to, and have some idea
where in that country he or she may be living, this is probably
enough information for the ICACU to submit an application to that
country. In most countries the local police and/or Interpol will
assist in locating your child. It is very important that you provide
as much information as possible about the probable whereabouts.
This will speed up the process in the foreign jurisdiction.
The ICACU
can only start to assist you when you know which country your child
is in. If you are unsure of this information, you should consider
consulting a solicitor in this jurisdiction to assist you in tracing
your child.
While
my application is being processed in the foreign jurisdiction, will
I be able to have contact with my child ?
Any contact
with your child while your application is pending should be made
on a voluntary basis with the abducting arent. In most cases formal
applications for contact are not advisable as a court may misinterpret
such a request as an agreement on your part that your child can
remain living in the foreign jurisdiction as long as you can have
contact. This may jeopardise your request for your child's return.
My
children live in Spain (or any other country in the EU except Denmark).
On 1 March 2005 my former de facto partner applied to the English
courts to relocate and although I opposed the application the court
in England gave her and the children permission to relocate. Orders
for the children to have contact with me for 4 weeks over the summer
holidays were made at the same time. They left a month ago. My former
partner now says that she won't be sending the children. Is there
anything I can do ?
Your case will come under the Revised Brussels II Regulation (article
9 Continuing jurisdiction of the child's former habitual residence).
This provision allows the English court to tain jurisdiction over
your children for 3 months following the judgement. If it has been
less than 3 months from the date on which your children left the
United Kingdom, you should immediately contact your solicitor and
relist the matter before the English court which heard the relocation
application. If it has been more than 3 months since the children
left you should contact the ICACU and consider making an application
to have your English contact orders enforced in Spain. If you are
eligible for legal aid in England you are entitled to legal aid
in Spain.
How
can I resume contact with my daughter who lives with her mother
in Italy (or any other country in the EU except Denmark)? I have
contact orders but they were made in Wales 6 months ago when my
former wife and I divorced.
The orders you have may be enforceable in Italy under the Revised
Brussels II Regulation. You should contact the ICACU to dicuss your
case. If your case does not come under the the Revised Brussels
II Regulation, you may be able to secure new orders for contact
under the Hague Convention.
I
am considering making an application to enforce my contact orders.
The orders were made in England and my children live in Poland.
If I make an application can I do it in England and will I have
to pay legal costs ?
You cannot apply directly to an English court but you may be able
to make an application to enforce your existing orders through the
ICACU. If your case comes under the the Revised Brussels II Regulation,
the ICACU will provide you with an application form and will advise
you as to what additional documents you will need. Once all the
documents are prepared, the ICACU will send them to the Central
Authority in Poland who will commence legal proceedings to enforce
your orders. If you are eligible for any form of legal assisstance
in England you will not have to pay for the legal expenses of enforcing
your orders.
My
children have lived in Greece for 3 years. I have been having regular
contact with them each summer but I do not have any court orders.
My former wife has now remarried and has refused to send the children.
What can I do ?
Because
the Hague Convention is in force between Greece and the United Kingdom
you will be able to make an application to establish rights of access
in Greece. You should contact the ICACU.
I
moved to England 3 years ago. My children still live in Australia.
I would like to re-establish contact with them. What can I do ?
The Hague
Convention is in force between the United Kingdom and Australia.
You may threfore be able to make an application to establish contact
with your children. The legal costs of the application will be met
by the Australian government. You should contact the ICACU.
Application
forms and explanatory notes
Application (questionnaire) for return of a child - Notes
for guidance
Application
(questionnaire) for access to a child - Notes
for guidance.
Application
(questionnaire) for registration of court order under European Convention
