international obligations

international obligations

Hague Convention FAQ

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

  1. his or her habitual residence cannot be ascertained, or
  2. he or she is a refugee, or
  3. 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 requests between Ireland and other States, in relation to a relevant person, as defined under the 2015 Act.

Facilitates communication between authorities in different States.

Provides, upon request of another Contracting State, assistance in discovering the whereabouts of an adult in 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.

The list of signatories can be found by clicking on the link to the webpage Convention of 13 January 2000 on the International Protection of Adults.

Hague Convention

The statutory office of the Director of the Decision Support Service (“DSS”) (the “Director”) was established under the Assisted Decision-Making (Capacity) Act 2015 as amended (“2015 Act”). The DSS will provide an essential service for people who face difficulties exercising their decision-making capacity. This may include people with an intellectual disability, acquired brain injury, mental health difficulty or dementia. This also includes all people who want to plan ahead for a time when they might lose their capacity. The DSS will help to protect and uphold people’s rights, to make their own decisions about their personal welfare, property, and affairs.

The Convention on the International Protection of Adults, signed at the Hague in 2000 (“the Convention”), is addressed in Part 11 of the 2015 Act. The Convention, once ratified by Ireland, will come into effect within a period of approximately 3 months.

The Convention in Article 1 states that it applies “to the protection in international situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests.”

This means that the Convention applies to the protection, in appropriate circumstances, of adult Irish nationals while they are outside of Ireland, or, who have property outside of Ireland. The Convention also applies to the protection of non-Irish adult nationals, who are habitually resident in Ireland or have property in or outside of Ireland.​ Countries that have ratified the Convention are called Contracting States. The Convention assists in determining which country’s laws apply to an adult or their property in an international situation. For example, it provides for the recognition, in another Contracting State, of certain orders of the Irish courts and for advance planning arrangements, like enduring powers of attorney and certain advance healthcare directives validly made in Ireland.

Central Authority

Under section 113 of the 2015 Act, the Director is appointed to perform the functions conferred on the Central Authority for matters relating to the Convention.

As Central Authority, the Director’s main functions are to act as a facilitator for communications between competent authorities (judicial and administrative bodies) in Ireland and competent authorities in other Contracting States, and to co-operate with Central Authorities in other Contracting States. This could include liaising with the appropriate authorities in Ireland, to assist in discovering the whereabouts of an adult who may need protection, or where the placement of an adult in another Contracting State is contemplated. 

The Central Authority can provide information in relation to the Convention and the statutory supports available in Ireland but does not provide legal advice. If legal advice is required, you should contact a suitably qualified legal professional.

Role of the Courts

The courts in Ireland are given power under the 2015 Act to deal with situations to which the Convention applies.

Section 125 of the 2015 Act, allows an interested person to apply to the High Court or Circuit Court in Ireland for a declaration, as to whether a measure taken under the law of a different Contracting State shall be recognised in Ireland.

Section 127 of the 2015 Act, allows an interested person to apply to the High Court or Circuit Court in Ireland for a declaration, as to whether a measure taken in another Contracting State can be enforced in Ireland. Once a declaration under Section 127 has issued, then it is enforceable in Ireland, as if it had been made in Ireland.

Examples of potential application of the Convention

Please note that scenarios 1 and 2 are based on both countries being contracting states. 

Scenario 1

A British national formerly resident in Scotland has been living and is habitually resident in Ireland since his retirement 10 years ago. 

He owns property in Scotland and Ireland. 

He now does not have capacity to take certain decisions about his property and affairs. His property needs to be sold to provide funds for his care while he is living in Ireland. He has a son living in Scotland. 

Whilst the man was resident in Scotland, he granted his son extensive powers, under the equivalent of an Enduring Power of Attorney, to be exercised in the event that he lacked capacity to make the decisions, as set out in the instrument.

The manner of exercise of the powers of representation would be exercised in accordance with the law in Ireland. 

Scenario 2

A man with Irish nationality dies in Ireland. He is survived by a 40-year-old daughter whose habitual residence is in Germany.

She suffers from an enduring mental illness and has been placed under a protective regime by the court in Germany. The German court has appointed her cousin, who is resident in Germany, to act and make decisions on her behalf.

The German courts are entitled to make decisions related to the protection of the woman’s interests, as she is habitually resident in Germany. 

The Convention would ensure that the powers of her cousin granted by the courts in Germany, would also be recognised in Ireland and other Contracting States. 

 The cousin may be issued with a certificate by an authority in Germany, outlining his/her     powers of representation, in the event that the cousin was required to represent the woman, in relation to her father’s estate in Ireland. 

 

If you are a member of the public or a service provider, please contact the central authority at:

Email address: psp.centralauthority@mhcirl.ie.

 

If you are a Central Authority of another Contracting State, please contact the central authority at:

Email address: central.authority@mhcirl.ie.