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.

• (3) The decision referred to in subsection (1) or (2A) above is a decision which is only a decision relating to custody within the meaning of section 16 of this Act by virtue of being a decision relating to rights of access.

• (4) Paragraph (b) of Article 10(2) of the Convention shall be construed as referring to custody proceedings within the meaning of this Act.

• (5) This section shall apply to a children’s hearing ... as it does to a court.

• (6) In subsection (5), “children’s hearing” is to be construed in accordance with section 5 of the Children’s Hearings (Scotland) Act 2011.

Reports

21

Where the Lord Chancellor, the Department of Justice in Northern Ireland or the Secretary of State is requested to make enquiries about a child under Article 15(1)(b) 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 relating to the child concerned 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 any such request shall be duly complied with.

Proof of documents and evidence

22

• (1) In any proceedings under this Part of this Act a decision of an authority outside the United Kingdom may be proved by a duly authenticated copy of the decision; 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) In any proceedings under this Part of this Act any such document as is mentioned in Article 13 of the Convention, or a certified copy of any such document, shall be sufficient evidence of anything stated in it.

Decisions of United Kingdom courts

23

• (1) Where a person on whom any rights are conferred by a decision relating to custody made by a court in the United Kingdom makes an application to the Lord Chancellor, the Department of Justice in Northern Ireland or the Secretary of State under Article 4 of the Convention with a view to securing its recognition or enforcement in another Contracting State, the Lord Chancellor, the Department of Justice in Northern Ireland or the Secretary of State may require the court which made the decision to furnish him with all or any of the documents referred to in Article 13(1)(b), (c) and (d) of the Convention.

• (2) Where in any custody proceedings a court in the United Kingdom makes a decision relating to a child who has been removed from the United Kingdom, the court may also, on an application made by any person for the purposes of Article 12 of the Convention, declare the removal to have been unlawful if it is satisfied that the applicant has an interest in the matter and that the child has been taken from or sent or kept out of the United Kingdom without the consent of the person (or, if more than one, all the persons) having the right to determine the child’s place of residence under the law of the part of the United Kingdom in which the child was habitually resident.

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

Rules of court

24

• (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 to a court under any provision of this Part of this Act 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 directions requiring the disclosure of information about any child who is the subject of proceedings under this Part of this Act and for safeguarding its welfare.

Part III — Supplementary

Termination of existing custody orders, etc.

25

• (1) Where—

• (a) an order is made for the return of a child under Part I of this Act; or

• (b) a decision with respect to a child (other than a decision mentioned in subsection (2) below) is registered under section 16 of this Act,

any custody order relating to him shall cease to have effect.

• (2) The decision referred to in subsection (1)(b) above is a decision which is only a decision relating to custody within the meaning of section 16 of this Act by virtue of being a decision relating to rights of access.

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

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

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) In section 16 of the Social Work (Scotland) Act 1968 (assumption of parental rights and powers by local authority) in subsection (11) after paragraph (d) there shall be inserted the words

; or (e) an event mentioned in paragraph (a) or (b) of section 25(1) of the Child Abduction and Custody Act 1985 occurs with respect to the child.

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Expenses

26

There shall be paid out of money provided by Parliament—

• (a) any expenses incurred by the Lord Chancellor or the Secretary of State by virtue of this Act; and

• (b) any increase attributable to this Act in the sums so payable under any other Act.

Interpretation

27

• (1) In this Act “custody order” means (unless the contrary intention appears) any such order or authorisation as is mentioned in Schedule 3 to this Act and “custody proceedings” means proceedings in which an order within paragraphs 1, 2, 5, 6, 8 or 9 of that Schedule may be made, varied or revoked.

• (2) For the purposes of this Act “part of the United Kingdom” means England and Wales, Scotland or Northern Ireland and “the appropriate court”, in relation to England and Wales or Northern Ireland means the High Court and, in relation to Scotland, the Court of Session.

• (3) In this Act “local authority” means—

• (a) in relation to England and Wales, the council of a non-metropolitan county, a metropolitan district, a London borough or the Common Council of the City of London; and

• (b) in relation to Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994.

• (4) In this Act a decision relating to rights of access in England and Wales or Northern Irelandor Scotland means a decision as to the contact which a child may, or may not, have with any person.

• (5) In this Act “ officer of the Service ” has the same meaning as in the Criminal Justice and Court Services Act 2000.

• (5A) In this Act “Welsh family proceedings officer” has the meaning given by section 35 of the Children Act 2004

Application as respects British Islands and colonies

28

• (1) Her Majesty may by Order in Council direct that any of the provisions of this Act specified in the Order shall extend, subject to such modifications as may be specified in the Order, to—

• (a) the Isle of Man,

• (b) any of the Channel Islands, and

• (c) any colony.

• (2) Her Majesty may by Order in Council direct that this Act shall have effect in the United Kingdom as if any reference in this Act, or in any amendment made by this Act, to any order which may be made, or any proceedings which may be brought or any other thing which may be done in, or in any part of, the United Kingdom included a reference to any corresponding order which may be made or, as the case may be, proceedings which may be brought or other thing which may be done in any of the territories mentioned in subsection (1) above.

• (3) An Order in Council under this section may make such consequential, incidental and supplementary provision as Her Majesty considers appropriate.

• (4) An Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Short title, commencement and extent

29

• (1) This Act may be cited as the Child Abduction and Custody Act 1985.

• (2) This Act shall come into force on such day as may be appointed by an order made by statutory instrument by the Lord Chancellor and the Lord Advocate; and different days may be so appointed for different provisions.

• (3) This Act extends to Northern Ireland.

SCHEDULE 1

CHAPTER 1 — Scope of the Convention

Article 3

The removal or the retention of a child is to be considered wrongful where—

The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

Article 4

The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of sixteen years.

Article 5

For the purposes of this Convention—

CHAPTER II — Central Authorities

Article 7

Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.

In particular, either directly or through any intermediary, they shall take all appropriate measures—

CHAPTER III — Return of Children

Article 8

Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.

The application shall contain—

The application may be accompanied or supplemented by—

Article 9

If the Central Authority which receives an application referred to in Article 8 has reason to believe that the child is in another Contracting State, it shall directly and without delay transmit the application to the Central Authority of that Contracting State and inform the requesting Central Authority, or the applicant, as the case may be.

Article 10

The Central Authority of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child.

Article 11

The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.

If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested state has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

Article 13

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that—

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.

Article 14

In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.

Article 15

The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.

Article 16

After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.

Article 17

The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.

Article 18

The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.

Article 19

A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.

CHAPTER IV — Rights of Access

Article 21

An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.

The Central Authorities are bound by the obligations of cooperation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.

CHAPTER V — General Provisions

Article 22

No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention.

Article 24

Any application, communication or other document sent to the Central Authority of the requested State shall be in the original language, and shall be accompanied by a translation into the official language or one of the official languages of the requested State or, where that is not feasible, a translation into French or English.

Article 26

Each Central Authority shall bear its own costs in applying this Convention.

Central Authorities and other public services of Contracting States shall not impose any charges in relation to applications submitted under this Convention. In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers. However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child.

However, a Contracting State may, by making a reservation in accordance with Article 42, declare that it shall not be bound to assume any costs referred to in the preceding paragraph resulting from the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its system of legal aid and advice.

Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.

Article 27

When it is manifest that the requirements of this Convention are not fulfilled or that the application is otherwise not well founded, a Central Authority is not bound to accept the application. In that case, the Central Authority shall forthwith inform the applicant or the Central Authority through which the application was submitted, as the case may be, of its reasons.

Article 28

A Central Authority may require that the application be accompanied by a written authorisation empowering it to act on behalf of the applicant, or to designate a representative so to act.

Article 29

This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention.

Article 30

Any application submitted to the Central Authorities or directly to the judicial or administrative authorities of a Contracting State in accordance with the terms of this Convention, together with documents and any other information appended thereto or provided by a Central Authority, shall be admissible in the courts or administrative authorities of the Contracting States.

Article 31

In relation to a State which in matters of custody of children has two or more systems of law applicable in different territorial units—

Article 32

In relation to a State which in matters of custody of children has two or more systems of law applicable to different categories of persons, any reference to the law of that State shall be construed as referring to the legal system specified by the law of that State.

SCHEDULE 2

Article 1

For the purposes of this Convention:

Article 4

Article 5

Article 7

A decision relating to custody given in a Contracting State shall be recognised and, where it is enforceable in the State of origin. made enforceable in every other Contracting State.

Article 9

Article 10

Article 11

Article 12

Where, at the time of the removal of a child across an interna­tional frontier, there is no enforceable decision given in a Contracting State relating to his custody, the provisions of this Convention shall apply to any subsequent decision, relating to the custody of that child and declaring the removal to be unlawful, given in a Contracting State at the request of any interested person.

Article 13

Article 15

Requests for enquiries and the results of enquiries may be sent to the authority concerned through the central authorities.

Article 26

SCHEDULE 3

Part I — England and Wales

1

The following are the orders referred to in section 27(1) of this Act—

• (a) a care order under the Children Act 1989 (as defined by section 31(11) of that Act, read with section 105(1) and Schedule 14);

• (b) a child arrangements order (as defined by section 8 of the Act of 1989) if the arrangements regulated by the order consist of, or include, arrangements relating to either or both of the following—

• (i) with whom a child is to live, or

• (ii) when a child is to live with any person;

• (bb) a special guardianship order (within the meaning of the Act of 1989); and

• (c) any order made by a court in England and Wales under any of the following enactments—

• (i) section 9(1), 10(1(a) or 11(a) of the Guardianship of Minors Act 1971;

• (ii) section 42(1) or (2) or 43(1) of the Matrimonial Causes Act 1973;

• (iii) section 2(2)(b), 4(b) or (5) of the Guardianship Act 1973 as applied by section 34(5) of the Children Act 1975;

• (iv) section 8(2)(a), 10(1) or 19(1)(ii) of the Domestic Proceedings and Magistrates Courts Act 1978;

• (v) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

An order made by the High Court in the exercise of its jurisdiction relating to wardship so far as it gives the care and control of a child to any person.

3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

An authorisation given by the Secretary of State under section 26(2) of the Children and Young Persons Act 1969 (except where the relevant order, within the meaning of that section, was made by virtue of the court which made it being satisfied that the child was guilty of an offence).

Part II — Scotland

5

An order made by a court of civil jurisdiction in Scotland under any enactment or rule of law with respect to the residence, custody, care or control of a child or contact with, or access to a child, excluding—

• (i) an order placing a child under the supervision of a local authority;

• (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (iia) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (iii) an order relating to the guardianship of a child;

• (iv) an order made under section 86 of the Children (Scotland) Act 1995;

• (v) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (vi) an order made in proceedings under this Act.

• (vii) an adoption order (as defined in section 28(1) of the Adoption and Children (Scotland) Act 2007 (asp 4);

an adoption order (as defined in section 28(1) of the Adoption and Children (Scotland) Act 2007 (asp 4);

• (viii) a permanence order (as defined in subsection (2) of section 80 of that Act) which includes provision such as is mentioned in paragraph (c) of that subsection.

• (ix) an order made, or warrant or authorisation granted, under or by virtue of the Children’s Hearings (Scotland) Act 2011 to remove the child to a place of safety or to secure accommodation (those expressions having the meanings given by section 202(1) of that Act), to keep the child at such a place or in such accommodation, or to prevent the removal of the child from a place where the child is being accommodated (or an order continuing, varying or discharging any order, warrant or authorisation so made or granted).

6

A supervision requirement made by a children’s hearing under section 70 of the Children (Scotland) Act 1995 (whether or not continued under section 73 of that Act) or made by the sheriff under section 51(5)(c)(iii) of that Act and any order made by a court in England and Wales or in Northern Ireland if it is an order which, by virtue of section 33(1) of that Act, has effect as if it were such a supervision requirement.

7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part III — Northern Ireland

8

The following orders—

• (a) a care order under the Children (Northern Ireland) Order 1995 (as defined by Article 49(1) of that Order read with Article 2(2) and Schedule 8);

• (b) a residence order (as defined by Article 8 of that Order);

• (c) any order made by a court in Northern Ireland under any of the following enactments—

• (i) section 5 of the Guardianship of Infants Act 1886 (except so far as it relates to costs);

• (ii) section 49 of the Mental Health Act (Northern Ireland) 1961;

• (iii) Article 45(1) or (2) or 46 of the Matrimonial Causes (Northern Ireland) Order 1978;

• (iv) Article 10(2)(a), 12(1) or 20(1)(ii) of the Domestic Proceedings (Northern Ireland) Order 1980;

• (v) Article 27(1)(b) of the Adoption (Northern Ireland) Order 1987.

9

An order made by the High Court in the exercise of its jurisdiction relating to wardship so far as it gives the care and control of a child to any person.

10

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Contracting States.

Central Authorities.

24A

• (1) Where—

• (a) in proceedings for the return of a child under Part I of this Act; or

• (b) on an application for the recognition, registration or enforcement of a decision in respect of a child under Part II of this Act,

there is not available to the court adequate information as to where the child is, the court may order any person who it has reason to believe may have relevant information to disclose it to the court.

• (2) A person shall not be excused from complying with an order under subsection (1) above by reason that to do so may incriminate him or his spouseor civil partner of an offence; but a statement or admission made in compliance with such an order shall not be admissible in evidence against either of them in proceedings for any offence other than perjury.

Interpretation.

Cost of applications.

Chapter I—Scope of the Convention

Article 3

The removal or the retention of a child is to be considered wrongful where—

The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

Article 4

Article 5

Chapter II—Central Authorities

Article 7

Chapter III—Return of Children

Article 8

Article 9

Article 10

Article 11

Article 12

Article 13

Article 14

Article 15

Article 16

Article 17

Article 18

Article 19

Chapter IV—Rights of Access

Article 21

Chapter V—General Provisions

Article 22

Article 24

Article 26

Article 27

Article 28

Article 29

Article 30

Article 31

Article 32

Editorial notes