Commonwealth Numbered Regulations

1986 No. 85 FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS - SCHEDULE 1

                                   SCHEDULE 1               Regulation 2

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION The States
signatory to the present Convention, Firmly convinced that the interests of
children are of paramount importance in matters relating to their custody,
Desiring to protect children internationally from the harmful effects of their
wrongful removal or retention and to establish procedures to ensure their
prompt return to the State of their habitual residence, as well as to secure
protection for rights of access, Have resolved to conclude a Convention to
this effect, and have agreed upon the following provisions -
CHAPTER 1 - SCOPE OF THE CONVENTION
Article 1 The objects of the present Convention are - a to secure the prompt
return of children wrongfully removed to or retained in any Contracting State;
and b to ensure that rights of custody and of access under the law of one
Contracting State are effectively respected in the other Contracting States.
Article 2 Contracting States shall take all appropriate measures to secure
within their territories the implementation of the objects of the Convention.
For this purpose they shall use the most expeditious procedures available.
Article 3 The removal or the retention of a child is to be considered wrongful
where - a it is in breach of rights of custody attributed to a person, an
institution or any other body, either jointly or alone, under the law of the
State in which the child was habitually resident immediately before the
removal or retention; and b at the time of removal or retention those rights
were actually exercised, either jointly or alone, or would have been so
exercised but for the removal or retention. 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
16 years.
Article 5 For the purposes of this Convention - a 'rights of custody' shall
include rights relating to the care of the person of the child and, in
particular, the right to determine the child's place of residence; b 'rights
of access' shall include the right to take a child for a limited period of
time to a place other than the child's habitual residence.
CHAPTER II - CENTRAL AUTHORITIES
Article 6 A Contracting State shall designate a Central Authority to discharge
the duties which are imposed by the Convention upon such authorities. Federal
States, States with more than one system of law or States having autonomous
territorial organizations shall be free to appoint more than one Central
Authority and to specify the territorial extent of their powers. Where a State
has appointed more than one Central Authority, it shall designate the
Central Authority to which applications may be addressed for transmission to
the appropriate Central Authority within that State.
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 - a to discover the whereabouts of a child
who has been wrongfully removed or retained; b to prevent further harm to the
child or prejudice to interested parties by taking or causing to be taken
provisional measures; c to secure the voluntary return of the child or to
bring about an amicable resolution of the issues; d to exchange, where
desirable, information relating to the social background of the child; e to
provide information of a general character as to the law of their State in
connection with the application of the Convention; f to initiate or facilitate
the institution of judicial or administrative proceedings with a view to
obtaining the return of the child and, in a proper case, to make arrangements
for organizing or securing the effective exercise of rights of access; g where
the circumstances so require, to provide or facilitate the provision of legal
aid and advice, including the participation of legal counsel and advisers; h
to provide such administrative arrangements as may be necessary and
appropriate to secure the safe return of the child; i to keep each other
informed with respect to the operation of this Convention and, as far as
possible, to eliminate any obstacles to its application.
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 - a information
concerning the identity of the applicant, of the child and of the person
alleged to have removed or retained the child; b where available, the date of
birth of the child; c the grounds on which the applicant's claim for return of
the child is based; d all available information relating to the whereabouts of
the child and the identity of the person with whom the child is presumed to
be. The application may be accompanied or supplemented by - e an authenticated
copy of any relevant decision or agreement; f a certificate or an affidavit
emanating from a Central Authority, or other competent authority of the State
of the child's habitual residence, or from a qualified person, concerning the
relevant law of that State; g any other relevant document.
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 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 - a the person, institution or other body
having the care of the person of the child was not actually exercising the
custody rights at the time of removal or retention, or had consented to or
subsequently acquiesced in the removal or retention; or b there is a grave
risk that his or her return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable situation.
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 recognized 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.
Article 20 The return of the child under the provisions of Article 12 may be
refused if this would not be permitted by the fundamental principles of the
requested State relating to the protection of human rights and fundamental
freedoms.
CHAPTER IV - RIGHTS OF ACCESS
Article 21 An application to make arrangements for organizing 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
co-operation 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
organizing 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 23 No legalization or similar formality may be required in the context
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. However, a Contracting State may, by
making a reservation in accordance with Article 42, object to the use of
either French or English, but not both, in any application, communication or
other document sent to its Central Authority.
Article 25 Nationals of the Contracting States and persons who are habitually
resident within those States shall be entitled in matters concerned with the
application of this Convention to legal aid and advice in any other
Contracting State on the same conditions as if they themselves were nationals
of and habitually resident in that State.
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 authorization 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 - a any
reference to habitual residence in that State shall be construed as referring
to habitual residence in a territorial unit of that State; b any reference to
the law of the State of habitual residence shall be construed as referring to
the law of the territorial unit in that State where the child habitually
resides.
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.
Article 33 A State within which different territorial units have their own
rules of law in respect of custody of children shall not be bound to apply
this Convention where a State with a unified system of law would not be bound
to do so.
Article 34 This Convention shall take priority in matters within its scope
over the Convention of 5 October 1961 concerning the powers of authorities and
the law applicable in respect of the protection of minors, as between Parties
to both Conventions. Otherwise the present Convention shall not restrict the
application of an international instrument in force between the State of
origin and the State addressed or other law of the State addressed for the
purposes of obtaining the return of a child who has been wrongfully removed or
retained or of organizing access rights.
Article 35 This Convention shall apply as between Contracting States only to
wrongful removals or retentions occurring after its entry into force in those
States. Where a declaration has been made under Article 39 or 40, the
reference in the preceding paragraph to a Contracting State shall be taken to
refer to the territorial unit or units in relation to which this Convention
applies.
Article 36 Nothing in this Convention shall prevent two or more Contracting
States, in order to limit the restrictions to which the return of the child
may be subject, from agreeing among themselves to derogate from any provisions
of this Convention which may imply such a restriction.
CHAPTER VI - FINAL CLAUSES
Article 37 The Convention shall be open for signature by the States which were
Members of the Hague Conference on Private International Law at the time of
its Fourteenth Session. It shall be ratified, accepted or approved and the
instruments of ratification, acceptance or approval shall be deposited with
the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
Article 38 Any other State may accede to the Convention. The instrument of
accession shall be deposited with the Ministry of Foreign Affairs of the
Kingdom of the Netherlands. The Convention shall enter into force for a State
acceding to it on the first day of the third calendar month after the deposit
of its instrument of accession. The accession will have effect only as regards
the relations between the acceding State and such Contracting States as will
have declared their acceptance of the accession. Such a declaration will also
have to be made by any Member State ratifying, accepting or approving the
Convention after an accession. Such declaration shall be deposited at the
Ministry of Foreign Affairs of the Kingdom of the Netherlands: this Ministry
shall forward, through diplomatic channels, a certified copy to each of the
Contracting States. The Convention will enter into force as between the
acceding State and the State that has declared its acceptance of the accession
on the first day of the third calendar month after the deposit of the
declaration of acceptance.
Article 39 Any State may, at the time of signature, ratification, acceptance,
approval or accession, declare that the Convention shall extend to all the
territories for the international relations of which it is responsible, or to
one or more of them. Such a declaration shall take effect at the time the
Convention enters into force for that State. Such declaration, as well as any
subsequent extension, shall be notified to the Ministry of Foreign Affairs of
the Kingdom of the Netherlands.
Article 40 If a Contracting State has two or more territorial units in which
different systems of law are applicable in relation to matters dealt with in
this Convention, it may at the time of signature, ratification, acceptance,
approval or accession declare that this Convention shall extend to all its
territorial units or only to one or more of them and may modify this
declaration by submitting another declaration at any time. Any such
declaration shall be notified to the Ministry of Foreign Affairs of the
Kingdom of the Netherlands and shall state expressly the territorial units to
which the Convention applies.
Article 41 Where a Contracting State has a system of government under which
executive, judicial and legislative powers are distributed between central and
other authorities within that State, its signature or ratification, acceptance
or approval of, or accession to this Convention, or its making of any
declaration in terms of Article 40 shall carry no implication as to the
internal distribution of powers within that State.
Article 42 Any State may, not later than the time of ratification, acceptance,
approval or accession, or at the time of making a declaration in terms of
Article 39 or 40, make one or both of the reservations provided for in Article
24 and Article 26, third paragraph. No other reservations shall be permitted.
Any State may at any time withdraw a reservation it has made. The withdrawal
shall be notified to the Ministry of Foreign Affairs of the Kingdom of the
Netherlands. The reservation shall cease to have effect on the first day of
the third calendar month after the notification referred to in the preceding
paragraph.
Article 43 The Convention shall enter into force on the first day of the third
calendar month after the deposit of the third instrument of ratification,
acceptance, approval or accession referred to in Articles 37 and 38.
Thereafter the Convention shall enter into force - 1 for each State ratifying,
accepting, approving or acceding to it subsequently, on the first day of the
third calendar month after the deposit of its instrument of ratification,
acceptance, approval or accession; 2 for any territory or territorial unit to
which the Convention has been extended in conformity with Article 39 or 40, on
the first day of the third calendar month after the notification referred to
in that Article.
Article 44 The Convention shall remain in force for five years from the date
of its entry into force in accordance with the first paragraph of Article 43
even for States which subsequently have ratified, accepted, approved it or
acceded to it. If there has been no denunciation, it shall be renewed tacitly
every five years. Any denunciation shall be notified to the Ministry of
Foreign Affairs of the Kingdom of the Netherlands at least six months before
the expiry of the five year period. It may be limited to certain of the
territories or territorial units to which the Convention applies. The
denunciation shall have effect only as regards the State which has notified
it. The Convention shall remain in force for the other Contracting States.
Article 45 The Ministry of Foreign Affairs of the Kingdom of the Netherlands
shall notify the States Members of the Conference, and the States which have
acceded in accordance with Article 38, of the following - 1 the signatures and
ratifications, acceptances and approvals referred to in Article 37; 2 the
accessions referred to in Article 38; 3 the date on which the Convention
enters into force in accordance with Article 43; 4 the extensions referred to
in Article 39; 5 the declarations referred to in Articles 38 and 40; 6 the
reservations referred to in Article 24 and Article 26, third paragraph, and
the withdrawals referred to in Article 42; 7 the denunciations referred to in
Article 44.