Child Abduction and Custody Act 1985

Part I — International Child Abduction

Central Authorities.

1

• (1) In this Part of this Act “the Convention” means the Convention on the Civil Aspects of International Child Abduction which was signed at The Hague on 25th October 1980.

• (2) Subject to the provisions of this Part of this Act, the provisions of that Convention set out in Schedule 1 to this Act shall have the force of law in the United Kingdom.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Contracting States

2

• (1) For the purposes of the Convention as it has effect under this Part of this Act the Contracting States other than the United Kingdom shall be those for the time being specified by an Order in Council under this section.

• (2) An Order in Council under this section shall specify the date of the coming into force of the Convention as between the United Kingdom and any State specified in the Order; and, except where the Order otherwise provides, the Convention shall apply as between the United Kingdom and that State only in relation to wrongful removals or retentions occurring on or after that date.

• (3) Where the Convention applies, or applies only, to a particular territory or particular territories specified in a declaration made by a Contracting State under Article 39 or 40 of the Convention references to that State in subsections (1) and (2) above shall be construed as references to that territory or those territories.

Central Authorities

3

• (1) Subject to subsection (2) below, the functions under the Convention of a Central Authority shall be discharged—

• (a) in England and Wales ... by the Lord Chancellor; and

• (b) in Scotland by the Secretary of State; and

• (c) in Northern Ireland by the Department of Justice in Northern Ireland

• (2) Any application made under the Convention by or on behalf of a person outside the United Kingdom may be addressed to the Lord Chancellor as the Central Authority in the United Kingdom.

• (3) Where any such application relates to a function to be discharged under subsection (1) above by an authority (“the responsible authority”) other than the authority to which the application is addressed, the authority to which the application is addressed shall transmit it to the responsible authority.

Judicial authorities

4

The courts having jurisdiction to entertain applications under the Convention shall be—

• (a) in England and Wales or in Northern Ireland the High Court; and

• (b) in Scotland the Court of Session.

Interim powers

5

Where an application has been made to a court in the United Kingdom under the Convention, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application.

Reports

6

Where the Lord Chancellor, the Department of Justice in Northern Ireland or the Secretary of State is requested to provide information relating to a child under Article 7(d) of the Convention he may—

• (a) request a local authority or an officer of the Serviceor a Welsh family proceedings officer to make a report to him in writing with respect to any matter which appears to him to be relevant;

• (b) request the Department of Health and Social Services for Northern Ireland to arrange for a suitably qualified person to make such a report to him;

• (c) request any court to which a written report relating to the child has been made to send him a copy of the report;

and such a request shall be duly complied with.

Proof of documents and evidence

7

• (1) For the purposes of Article 14 of the Convention a decision or determination of a judicial or administrative authority outside the United Kingdom may be proved by a duly authenticated copy of the decision or determination; and any document purporting to be such a copy shall be deemed to be a true copy unless the contrary is shown.

• (2) For the purposes of subsection (1) above a copy is duly authenticated if it bears the seal, or is signed by a judge or officer, of the authority in question.

• (3) For the purposes of Articles 14 and 30 of the Convention any such document as is mentioned in Article 8 of the Convention, or a certified copy of any such document, shall be sufficient evidence of anything stated in it.

Declarations by United Kingdom courts

8

The High Court or Court of Session may, on an application made for the purposes of Article 15 of the Convention by any person appearing to the court to have an interest in the matter, make a declaration or declarator that the removal of any child from, or his retention outside, the United Kingdom was wrongful within the meaning of Article 3 of the Convention.

Suspension of court's powers in cases of wrongful removal

9

The reference in Article 16 of the Convention to deciding on the merits of rights of custody shall be construed as a reference to—

• (a) making, varying or revoking a custody order, or a supervision order under section 31 of the Children Act 1989 or Article 50 of the Children (Northern Ireland) Order 1995;

• (aa) enforcing under section 29 of the Family Law Act 1986 a custody order within the meaning of Chapter V of Part I of that Act;

• (b) registering or enforcing a decision under Part II of this Act;

• (ba) registering or enforcing a decision under the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children that was signed at The Hague on 19 October 1996 (“the 1996 Convention”), except where provisions of the 1996 Convention are invoked in accordance with Article 50 of the 1996 Convention;

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) making, varying, amending or revoking a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007 (including a deemed permanence order having effect by virtue of article 13(1) or 14(2) of the Adoption and Children (Scotland) Act 2007 (Commencement No. 4, Transitional and Savings Provisions) Order 2009 ( S.S.I. 2009/267) ).

• (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Rules of court

10

• (1) An authority having power to make rules of court may make such provision for giving effect to this Part of this Act as appears to that authority to be necessary or expedient.

• (2) Without prejudice to the generality of subsection (1) above, rules of court may make provision—

• (a) with respect to the procedure on applications for the return of a child and with respect to the documents and information to be furnished and the notices to be given in connection with any such application;

• (b) for the transfer of any such application between the appropriate courts in the different parts of the United Kingdom;

• (c) for the giving of notices by or to a court for the purposes of the provisions of Article 16 of the Convention and section 9 above and generally as respects proceedings to which those provisions apply;

• (d) for enabling a person who wishes to make an application under the Convention in a Contracting State other than the United Kingdom to obtain from any court in the United Kingdom an authenticated copy of any decision of that court relating to the child to whom the application is to relate.

Cost of applications

11

The United Kingdom having made such a reservation as is mentioned in the third paragraph of Article 26 of the Convention, the costs mentioned in that paragraph shall not be borne by any Minister or other authority in the United Kingdom except so far as they fall to be so borne by virtue of—

• (a) the provision of any civil legal services (within the meaning of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012) under arrangements made for the purposes of that Part of that Act, or

• (aa) the provision of civil legal services by the Department of Justice, or

• (b) the grant of legal aid or legal advice and assistance under.

the Legal Aid (Scotland) Act 1967 or, Part I of the Legal Advice and Assistance Act 1972 or the Legal Aid Advice and Assistance (Northern Ireland) Order 1981.

Part II — Recognition and Enforcement of Custody Decisions

The European Convention

12

• (1) In this Part of this Act “the Convention” means the Eurpoean Convention Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children which was signed in Luxembourg on 20th May 1980.

• (2) Subject to the provisions of this Part of this Act, the provisions of that Convention set out in Schedule 2 to this Act (which include Articles 9 and 10 as they have effect in consequence of a reservation made by the United Kingdom under Article 17) shall have the force of law in the United Kingdom.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Contracting States

13

• (1) For the purposes of the Convention as it has effect under this Part of this Act the Contracting States other than the United Kingdom shall be those for the time being specified by an Order in Council under this section.

• (2) An Order in Council under this section shall specify the date of the coming into force of the Convention as between the United Kingdom and any State specified in the Order.

• (3) Where the Convention applies, or applies only, to a particular territory or particular territories specified by a Contracting State under Article 24 or 25 of the Convention references to that State in subsections (1) and (2) above shall be construed as references to that territory or those territories.

Central Authorities

14

• (1) Subject to subsection (2) below, the functions under the Convention of a Central Authority shall be discharged—

• (a) in England and Wales ... by the Lord Chancellor; and

• (b) in Scotland by the Secretary of State; and

• (c) in Northern Ireland by the Department of Justice in Northern Ireland

• (2) Any application made under the Convention by or on behalf of a person outside the United Kingdom may be addressed to the Lord Chancellor as the Central Authority in the United Kingdom.

• (3) Where any such application relates to a function to be discharged under subsection (1) above by the Secretary of State it shall be transmitted by the Lord Chancellor to the Secretary of State and where such an application is addressed to the Secretary of State but relates to a function to be discharged under subsection (1) above by the Lord Chancellor the Secretary of State shall transmit it to the Lord Chancellor.

Recognition of decisions

15

• (1) Articles 7 and 12 of the Convention shall have effect in accordance with this section.

• (2) A decision to which either of those Articles applies which was made in a Contracting State other than the United Kingdom shall be recognised in each part of the United Kingdom as if made by a court having jurisdiction to make it in that part but—

• (a) the appropriate court in any part of the United Kingdom may, on the application of any person appearing to it to have an interest in the matter, declare on any of the grounds specified in Article 9 or 10 of the Convention that the decision is not to be recognised in any part of the United Kingdom; and

• (b) the decision shall not be enforceable in any part of the United Kingdom unless registered in the appropriate court under section 16 below.

• (3) The references in Article 9(1)(c) of the Convention to the removal of the child are to his improper removal within the meaning of the Convention.

Registration of decisions

16

• (1) A person on whom any rights are conferred by a decision relating to custody made by an authority in a Contracting State other than the United Kingdom may make an application for the registration of the decision in an appropriate court in the United Kingdom.

• (2) The Central Authority in the United Kingdom shall assist such a person in making such an application if a request for such assistance is made by him or on his behalf by the Central Authority of the Contracting State in question.

• (3) An application under subsection (1) above or a request under subsection (2) above shall be treated as a request for enforcement for the purposes of Articles 10 and 13 of the Convention.

• (4) The High Court or Court of Session shall refuse to register a decision if—

• (a) the court is of the opinion that on any of the grounds specified in Article 9 or 10 of the Convention the decision should not be recognised in any part of the United Kingdom;

• (b) the court is of the opinion that the decision is not enforceable in the Contracting State where it was made and is not a decision to which Article 12 of the Convention applies; or

• (c) an application in respect of the child under Part I of this Act is pending.

• (5) Where an authority mentioned in subsection (1) of section 14 above is requested to assist in making an application under this section to the appropriate court in a part of the United Kingdom (“the relevant part of the United Kingdom”) other than the part in relation to which the authority has functions under that subsection, the authority shall transmit the request to the authority which has functions under that subsection in relation to the relevant part of the United Kingdom.

• (6) In this section “decision relating to custody” has the same meaning as in the Convention.

Variation and revocation of registered decisions

17

• (1) Where a decision which has been registered under section 16 above is varied or revoked by an authority in the Contracting State in which it was made, the person on whose behalf the application for registration of the decision was made shall notify the court in which the decision is registered of the variation or revocation.

• (2) Where a court is notified under subsection (1) above of the revocation of a decision, it shall—

• (a) cancel the registration, and

• (b) notify such persons as may be prescribed by rules of court of the cancellation.

• (3) Where a court is notified under subsection (1) above of the variation of a decision, it shall—

• (a) notify such persons as may be prescribed by rules of court of the variation; and

• (b) subject to any conditions which may be so prescribed, vary the registration.

• (4) The court in which a decision is registered under section 16 above may also, on the application of any person appearing to the court to have an interest in the matter, cancel or vary the registration if it is satisfied that the decision has been revoked or, as the case may be, varied by an authority in the Contracting State in which it was made.

Enforcement of decisions

18

Where a decision relating to custody has been registered under section 16 above, the court in which it is registered shall have the same powers for the purpose of enforcing the decision as if it had been made by that court; and proceedings for or with respect to enforcement may be taken accordingly.

Interim powers

19

Where an application has been made to a court for the registration of a decision under section 16 above or for the enforcement of such a decision, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application or, in the case of an application for registration, to the determination of any subsequent application for the enforcement of the decision.

Suspension of court's powers

20

• (1) Where it appears to any court in which such proceedings as are mentioned in subsection (2) below are pending in respect of a child that—

• (a) an application has been made for the registration of a decision in respect of the child under section 16 above (other than a decision mentioned in subsection (3) below) or that such a decision is registered; and

• (b) the decision was made in proceedings commenced before the proceedings which are pending,

the powers of the court with respect to the child in those proceedings shall be restricted as mentioned in subsection (2) below unless, in the case of an application for registration, the application is refused.

• (2) Where subsection (1) above applies the court shall not—

• (a) in the case of custody proceedings, make, vary or revoke any custody order, or a supervision order under section 31 of the Children Act 1989 or Article 50 of the Children (Northern Ireland) Order 1995or;

• (aa) in the case of proceedings under section 29 of the Family Law Act 1986 for the enforcement of a custody order within the meaning of Chapter V of Part I of that Act, enforce that order;

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) in the case of proceedings for the making, varying, amending or revoking of a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007 (including a deemed permanence order having effect by virtue of article 13(1) or 14(2) of the Adoption and Children (Scotland) Act 2007 (Commencement No. 4, Transitional and Savings Provisions) Order 2009 ( S.S.I. 2009/267 )), make, vary, amend or revoke such an order;

• (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2A) Where it appears to the Secretary of State—

• (a) that an application has been made for the registration of a decision in respect of a child under section 16 above (other than a decision mentioned in subsection (3) below); or

• (b) that such a decision is registered,

the Secretary of State shall not make, vary or revoke any custody order in respect of the child unless, in the case of an application for registration, the application is refused.