70.1. In this Chapter–
“the Act of 1985” means the Child Abduction and Custody Act 1985(1);
“the European Convention” means the convention defined in section 12(1) of the Act of 1985 and as set out in Schedule 2 to the Act of 1985;
“the Hague Convention” means the convention defined in section 1(1) of the Act of 1985 and as set out in Schedule 1 to the Act of 1985;
“relevant authority” means–
in the United Kingdom, a sheriff court, a children’s hearing within the meaning of Part III of the Social Work (Scotland) Act 1968(2), the High Court, a county court or magistrates' court in England and Wales, the High Court, a county court or magistrates' court in Northern Ireland, or the Secretary of State, as the case may be; or
in a specified dependent territory, the appropriate authority or the appropriate court as defined in an Order in Council made under section 28 of the Act of 1985;
“specified dependent territory” means a dependent territory specified in an Order in Council made under section 28 of the Act of 1985.
70.2. Where any document lodged in process in a cause to which this Chapter applies is in a language other than English, there shall be lodged with that document a translation into English certified as correct by the translator; and the certificate shall include his full name, address and qualifications.
70.3.—(1) An application for a certified copy or extract of a decree or any other interlocutor relating to a child, in respect of whom the applicant wishes to apply under the Hague Convention or the European Convention in another Contracting State, shall be made by letter to the Deputy Principal Clerk.
(2) A certified copy or extract issued on an application under paragraph (1) shall be supplied free of charge.
70.4. Where the court pronounces an interlocutor under section 24A of the Act of 1985(3) (order to a person to disclose information to the court as to a child’s whereabouts), it may order that person to apear before it or to lodge an affidavit.
70.5.—(1) An application for the return of a child under the Hague Convention shall be made by petition and–
(a)shall include averments in relation to–
(i)the identity of the petitioner and the person alleged to have removed or retained the child;
(ii)the identity of the child and his date of birth;
(iii)the whereabouts or suspected whereabouts of the child;
(iv)the date on which the child is alleged to have been wrongfully removed or retained;
(v)the grounds on which the petition is based; and
(vi)any civil cause in dependence before any other court or authority in respect of the child, or any proceedings mentioned in section 9 of the Act of 1985(4) relating to the merits of the rights of custody of the child in or before a relevant authority; and
(b)there shall be produced with the petition and lodged as a production–
(i)a certified or authorised copy of any relevant decision or agreement; and
(ii)a certificate or affidavit from a Central Authority or other competent authority of the Contracting State where the child habitually resides concerning the relevant law of that State.
(2) An application for access to a child under the Hague Convention shall be made by petition and–
(a)shall include averments in relation to–
(i)the identity of the petitioner;
(ii)the identity of the child and his date of birth;
(iii)the parents or guardians of the child;
(iv)the whereabouts of the child;
(v)the factual and legal grounds on which access is sought; and
(vi)any civil cause in dependence before any other court or authority in respect of the child, or any proceedings mentioned in section 9 of the Act of 1985 relating to the merits of the rights of custody of the child in or before a relevant authority; and
(b)there shall be produced with the petition and lodged as a production a certified copy of any relevant decision or agreement.
(3) An application under section 8 of the Act of 1985 (application for declarator that removal or retention of child was wrongful) shall be made by petition and–
(a)shall include averments in relation to–
(i)the identity of the petitioner and of the person who is alleged to have removed or retained the child;
(ii)the identity of the child and his date of birth;
(iii)the whereabouts or suspected whereabouts of the child;
(iv)the date on which the child is alleged to have been wrongfully removed or retained;
(v)the proceedings which gave custody to the petitioner; and
(vi)the proceedings under the Hague Convention in relation to which the petition is necessary; and
(b)there shall be produced with the petition any relevant document.
70.6.—(1) Subject to rule 14.6(2), the period of notice for lodging answers to a petition to which rule 70.5 applies shall be 4 days.
(2) Such a petition shall be served on–
(a)the person alleged to have brought the child into the United Kingdom;
(b)the person with whom the child is presumed to be;
(c)any parent or guardian of the child if he or she is within the United Kingdom, or a specified dependent territory and not otherwise a party;
(d)the chief executive of the local authority, and the reporter to the children’s panel, in the local authority area in which the child resides; and
(e)any other person who may have an interest in the child.
(3) The first order under rule 14.5 (first order in petitions) in a petition to which rule 70.5 applies shall specify a date within 7 days after the expiry of the period of notice for a hearing to determine the further progress of the petition.
70.7.—(1) Where a petition is presented under paragraph (1) of rule 70.5 and there are proceedings mentioned in section 9 of the Act of 1985 relating to the merits of the rights of custody of the child depending in or before a relevant authority, the court shall give written intimation of the petition and, in due course of the outcome of the petition, to that relevant authority.
(2) Where the court receives a notice equivalent to that under paragraph (1) from a relevant authority, all proceedings in any cause mentioned in section 9 of the Act of 1985 relating to the merits of the rights of custody of the child shall be sisted by the court until the dismissal of the proceedings in that other court under the Hague Convention; and the Deputy Principal Clerk shall give written intimation to each party of the sist and of any such dismissal.
70.8.—(1) At any stage of a cause mentioned in paragraph (1) of rule 70.5, the court may, at its own instance or on the motion of any party, pronounce an interlocutor transmitting the cause to the High Court in England and Wales or Northern Ireland, or the appropriate court of a specified dependent territory, as the case may be.
(2) Where a cause is transferred under paragraph (1), the Deputy Principal Clerk shall–
(a)transmit the process to the appropriate officer of the High Court in England and Wales or Northern Ireland, or the appropriate court of a specified territory, as the case may be;
(b)give written intimation of such transfer to each party; and
(c)certify on the interlocutor sheet that such written intimation has been given.
(3) Where a cause is transferred under paragraph (1), the question of expenses shall not be determined by the court, but shall be at the discretion of the court to which the cause is transferred.
(4) Where such a cause is transferred to the court from the High Court in England and Wales or Northern Ireland, or the appropriate court of a specified dependent territory–
(a)the Deputy Principal Clerk shall, on receipt of the order transferring the cause and any documents in the cause, give written intimation to each party of the transfer;
(b)the cause shall be deemed to have been commenced by petition; and
(c)the Deputy Principal Clerk shall, within two sederunt days of the receipt of it, cause it to be put out on the By Order Roll before the Lord Ordinary.
70.9.—(1) An application under any of the following provisions shall be made by petition:–
(a)section 15 of the Act of 1985 (application to declare a decree for custody not to be recognised);
(b)section 16 of the Act of 1985 (application for registration of custody decision); and
(c)section 18 of the Act of 1985 (application for enforcement of custody decision).
(2) An application under section 17(4) of the Act of 1985 (application for variation or revocation of registered decision), shall be made by note in the process of the petition for registration.
(3) An application under section 23(2) of the Act of 1985 (application in custody proceedings for declarator that removal of a child was unlawful), shall be made–
(a)by minute in the process of a cause depending before the court commenced by summons; or
(b)by note in the process of a cause depending before the court commenced by petition.
(4) In an application mentioned in this rule–
(a)the petition, minute or note, as the case may be, shall include averments in relation to–
(i)the identity of the petitioner, minuter or noter, as the case may be, and his interest in the cause;
(ii)the identity of the child and his date of birth;
(iii)the parents or guardians of the child;
(iv)the order which is required to be registered, enforced, declared unlawful, declared not recognised, varied or revoked, as the case may be;
(v)the whereabouts or suspected whereabouts of the child; and
(vi)any civil cause in dependence before any other court or authority in respect of the child, or any proceedings specified in section 20(2) of the Act of 1985(5) in dependence in or before a relevant authority; and
(b)there shall be produced with the petition, minute or note, as the case may be–
(i)a certified or authorised copy of any decision to be registered or enforced;
(ii)where a decision to be registered was given in the absence of the person against whom the decision was made or in the absence of his legal representative, a document which establishes (subject to Article 9(1)(a) of the European Convention) that that person was duly served with the document which instituted the original proceedings;
(iii)a certificate or affidavit to the effect that any decision to be registered is enforceable in accordance with the law of the State in which the decision was made; and
(iv)any other relevant document.
70.10.—(1) Subject to rule 14.6(2), the period of notice for lodging answers in a petition to which rule 70.9 applies shall be 4 days.
(2) Such a petition shall be served on–
(a)the person alleged to have brought the child into, or removed the child from, the United Kingdom, or a specified dependent territory, as the case may be;
(b)the person with whom the child is presumed to be in the United Kingdom or a specified dependent territory;
(c)the mother and father of the child if he or she is within the United Kingdom, or a specified dependent territory, and not otherwise a party;
(d)the chief executive of the local authority, and the reporter to the children’s panel, in the local authority area in which the child resides; and
(e)any other person who may have an interest in the child.
(3) The first order under rule 14.5 (first order in petitions) in a petition to which rule 70.9 applies shall specify a date within 7 days after the expiry of the period of notice for a hearing to determine the further progress of the petition.
70.11. Where the court pronounces an interlocutor ordering registration under section 16 of the Act of 1985, the Deputy Principal Clerk shall record that interlocutor in a register of decisions pronounced under that Act.
70.12.—(1) Where a petition is presented under section 16 (application for registration and enforcement of custody decision), or section 18 (application for enforcement of a custody decision), of the Act of 1985 and there are proceedings⅔ mentioned in section 20(2) of that Act depending or such proceedings are commenced after the petition has been presented–
(a)the petitioner shall inform the court by including averments or lodging an affidavit, as the case may be, to that effect containing a concise statement of the nature of those proceedings; and
(b)the court shall give written intimation of the petition and, in due course of the outcome of the petition, to the relevant authority.
(2) Where the court receives a notice equivalent to that under paragraph (1)(b) from the High Court in England and Wales or Northern Ireland, or the appropriate court of a specified dependent territory, the Deputy Principal Clerk shall give written intimation to each party to any cause which is one mentioned in section 20(2) of the Act of 1985.
70.13.—(1) At any stage of a cause mentioned in rule 70.9, the court may, at its own instance or on the motion of any party, pronounce an interlocutor transferring the cause to the High Court in England and Wales or Northern Ireland, or the appropriate court of a specified dependent territory, as the case may be.
(2) Where a cause is transferred under paragraph (1), the Deputy Principal Clerk shall forthwith–
(a)transmit the process to the appropriate officer of the High Court in England and Wales or Northern Ireland, or the appropriate court of a specified dependent territory, as the case may be;
(b)give written intimation of such transfer to each party; and
(c)certify on the interlocutor sheet that such written intimation has been given.
(3) Where a cause is transferred under paragraph (1), the question of expenses shall not be determined by the court, but shall be at the discretion of the court to which the case is transferred.
(4) Where such a cause is transferred to the court from the High Court in England and Wales or Northern Ireland, or the appropriate court of a dependent territory–
(a)the Deputy Principal Clerk shall, on receipt of the order transferring the cause and any papers in the cause, give written intimation to the parties of the transfer;
(b)the cause shall be deemed to have been commenced by petition; and
(c)the Deputy Principal Clerk shall, within two days of the receipt of it, cause it to be put out on the By Order Roll before the Lord Ordinary.
70.14.—(1) Where a decision registered under section 16 of the Act of 1985 is varied or revoked by an authority in the Contracting State in which the decision was made, the court shall–
(a)on cancelling the registration of a decision which it has been notified has been revoked, give written intimation of that cancellation to–
(i)the person appearing to the court to have actual custody of the child;
(ii)the petitioner in the petition for registration; and
(iii)any other party to that petition; and
(b)on being notified of the variation of a decision, give written intimation to–
(i)the person having custody in fact of the child; and
(ii)any party to the petition for registration of the decision, of the variation.
(2) Any person to whom intimation of a variation has been given under paragraph (1)(b) may apply by note for the purpose of making representations before the registration is varied.
(3) An application under section 17(4) of the Act of 1985 (application to cancel or vary registration) shall be made by note.
1985 c. 60; section 24A was inserted by the Family Law Act 1986 (c. 55), section 67(4).
Section 9 of the Act of 1985 was amended by the Family Law Act 1986 (c. 55), Schedule 1, paragraph 28 and by the Children Act 1989 (c. 41), Schedule 13, paragraph 47 and Schedule 15.
Section 20(2) was amended by the Children Act 1989 (c. 41), Schedule 13, paragraph 57 and Schedule 15.