An adult – this is defined as a person who has reached the age of 18 years. The Convention also applies to measures of protection taken in respect of an adult, who had not reached the age of 18 years at the time the measures were taken.
It protects the rights of adults across borders where for example, an adult may be a citizen of one country, reside in another and have property or other assets in a third country and in general, the law of the Contracting State where the adult is habitually resident will apply.
It establishes a mechanism of co-operation and recognition between the authorities of Contracting States, whereby a legal agreement established in one country, such as the appointment of an attorney under an enduring power of attorney, may be effective in another.
Its objects are:
to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the adult;
to determine which law is to be applied by such authorities in exercising their jurisdiction;
to determine the law applicable to representation of the adult;
to provide for the recognition and enforcement of such measures of
protection in all Contracting States;
to establish such co-operation between the authorities of the Contracting States as may be necessary, in order to achieve the purposes of this Convention.
The law of the country where the adult is habitually resident primarily applies.
The Convention also recognises that the laws of other Contracting States can apply in certain situations, and subject to certain conditions, e.g., the law of the country in which the adult is a national, or, where the adult’s property is situated (in relation to that property).
The law of the country which is determined to have jurisdiction shall apply their own law, unless a situation arises where an adult, in certain circumstances, designates a particular country’s laws to apply.
The role of habitual residence in the 2000 Convention is, generally, to assess which Contracting States competent authorities have jurisdiction to take measures of protection, so that those decisions shall be recognised and enforced in other Contracting States.
Habitual residence is not defined in the Convention. The intention is that habitual residence should be determined by the relevant competent authorities, on the basis of factual elements, on a case-by-case basis.
The factual circumstances considered, vary in each case, but they generally denote a sufficient connection to the State, such as a stability of residence.
An example of how this would be determined in practice is as follows:
An adult, who is a national of Ireland, resides in Ireland for half the year and spends the other half in Germany. The adult maintains personal, social, family and property ties in both States. While in Germany, the adult requires protection. The question arises as to which of the two States is the adult’s State of habitual residence and, by extension, which State has primary jurisdiction to take measures of protection for the adult.
A Court in Germany has the task of resolving the matter. In determining their habitual residence, the competent authority must assess and weigh all the factual elements connecting the adult with both States (e.g., the personal ties they have in each State, any property owned in each State, from which State they receive their pension, in which State they pay their income tax, in which State they are insured, in which State they keep their savings and / or investments, etc.). The court concludes that, since the adult receives their pension, pays their income tax and has their savings, life and medical insurance in Germany, in addition to owning property and having family there, Germany is the adult’s State of habitual residence.
Although it does not define habitual residence, the Convention clearly states that it treats an adult as habitually resident if
his or her habitual residence cannot be ascertained, or
he or she is a refugee, or
he or she has been displaced as a result of disturbance in the country of his or her habitual residence.
The Central Authority:
Acts as a hub for contacts and requestsbetween Ireland and other States, in relation to a relevant person, as defined under the 2015 Act.
Facilitates communication between authoritiesin different States.
Provides, upon request of another Contracting State, assistance in discovering the whereabouts of an adultin need of protection.
Has a general mission of co-operation and information sharing between Contracting States.
Make a request to a central authority in another Contracting State, for information that is relevant to the protection of the adult.
Make or receive requests from another Contracting State, to assist in the implementation of measures of protection taken under the Convention.
In the case where the person is exposed to a serious danger; if that person’s residence has changed to another Contracting State, the Director of the DSS, where they have been notified in accordance with the 2015 Act, shall inform the authorities of that Contracting State of the danger involved and the measures undertaken.
The Director of the DSS may encourage the use of mediation, conciliation or similar means to achieve agreed solutions for the protection of the person or property of the adult, in situations to which the Convention applies.
The Convention applies to Contracting States. These are states that have ratified (signed into force) the Convention.
Currently Austria, Belgium, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece, Latvia, Malta, Monaco, Portugal, Switzerland and Scotland have ratified the Convention.