CHAPTER 6PROCEEDINGS UNDER THE 1980 HAGUE CONVENTION, THE EUROPEAN CONVENTION, THE COUNCIL REGULATION, AND THE 1996 HAGUE CONVENTION
Scope
12.43. This Chapter applies to —
(a)proceedings relating to children under the 1980 Hague Convention or the European Convention; and
(b)applications relating to the Council Regulation or the 1996 Hague Convention in respect of children.
SECTION 1Proceedings under the 1980 Hague Convention or the European Convention
Interpretation
12.44. In this section—
“the 1985 Act” means the Child Abduction and Custody Act 1985;
“Central Authority” means, in relation to England and Wales, the Lord Chancellor;
“Contracting State” has the meaning given in—
section 2 of the 1985 Act in relation to the 1980 Hague Convention; and
section 13 of the 1985 Act in relation to the European Convention; and
“decision relating to custody” has the same meaning as in the European Convention.
(“the 1980 Hague Convention” and the “the European Convention” are defined in rule 2.3)
Where to start proceedings
12.45. Every application under the 1980 Hague Convention or the European Convention must be—
(a)made in the High Court and issued in the principal registry; and
(b)heard by a Judge of the High Court unless the application is;
(i)to join a respondent; or
(ii)to dispense with service or extend the time for acknowledging service.
Evidence in support of application
12.46. Where the party making an application under this section does not produce the documents referred to in Practice Direction 12F, the court may—
(a)fix a time within which the documents are to be produced;
(b)accept equivalent documents; or
(c)dispense with production of the documents if the court considers it has sufficient information.
Without-notice applications
12.47.—(1) This rule applies to applications—
(a)commencing or in proceedings under this section;
(b)for interim directions under section 5 or 19 of the 1985 Act(1);
(c)for the disclosure of information about the child and for safeguarding the child’s welfare, under rule 12.57;
(d)for the disclosure of relevant information as to where the child is, under section 24A of the 1985 Act(2); or
(e)for a collection order, location order or passport order.
(2) Applications under this rule may be made without notice, in which case the applicant must file the application—
(a)where the application is made by telephone, the next business day after the making of the application; or
(b)in any other case, at the time when the application is made.
(3) Where an order is made without notice, the applicant must serve a copy of the order on the other parties as soon as practicable after the making of the order, unless the court otherwise directs.
(4) Where the court refuses to make an order on an application without notice, it may direct that the application is made on notice.
(5) Where any hearing takes place outside the hours during which the court office is usually open—
(a)if the hearing takes place by telephone, the applicant’s solicitors will, if practicable, arrange for the hearing to be recorded; and
(b)in all other cases, the court or court officer will take a note of the proceedings.
(Practice Direction 12E (Urgent Business) provides further details of the procedure for out of hours applications. See also Practice Direction 12D (Inherent Jurisdiction (including Wardship Proceedings)).)
Directions
12.48.—(1) As soon as practicable after an application to which this section applies has been made, the court may give directions as to the following matters, among others—
(a)whether service of the application may be dispensed with;
(b)whether the proceedings should be transferred to another court under rule 12.54;
(c)expedition of the proceedings or any part of the proceedings (and any direction for expedition may specify a date by which the court must issue its final judgment in the proceedings or a specified part of the proceedings);
(d)the steps to be taken in the proceedings and the time by which each step is to be taken;
(e)whether the child or any other person should be made a party to the proceedings;
(f)if the child is not made a party to the proceedings, the manner in which the child’s wishes and feelings are to be ascertained, having regard to the child’s age and maturity and in particular whether an officer of the Service or a Welsh family proceedings officer should report to the court for that purpose;
(g)where the child is made a party to the proceedings, the appointment of a children’s guardian for that child unless a children’s guardian has already been appointed;
(h)the attendance of the child or any other person before the court;
(i)the appointment of a litigation friend for a child or for any protected party, unless a litigation friend has already been appointed;
(j)the service of documents;
(k)the filing of evidence including expert evidence; and
(l)whether the parties and their representatives should meet at any stage of the proceedings and the purpose of such a meeting.
(Rule 16.2 provides for when the court may make the child a party to the proceedings and rule 16.4 for the appointment of a children’s guardian for the child who is made a party. Rule 16.5 (without prejudice to rule 16.6) requires a child who is a party to the proceedings but not the subject of those proceedings to have a litigation friend.)
(2) Directions of a court which are in force immediately prior to the transfer of proceedings to another court under rule 12.54 will continue to apply following the transfer subject to—
(a)any changes of terminology which are required to apply those directions to the court to which the proceedings are transferred; and
(b)any variation or revocation of the directions.
(3) The court or court officer will—
(a)take a note of the giving, variation or revocation of directions under this rule; and
(b)as soon as practicable serve a copy of the directions order on every party.
Answer
12.49.—(1) Subject to paragraph (2) and to any directions given under rule 12.48, a respondent must file and serve on the parties an answer to the application within 7 days beginning with the date on which the application is served.
(2) The court may direct a longer period for service where the respondent has been made a party solely on one of the following grounds—
(a)a decision relating to custody has been made in the respondent’s favour; or
(b)the respondent appears to the court to have sufficient interest in the welfare of the child.
Filing and serving written evidence
12.50.—(1) The respondent to an application to which this section applies may file and serve with the answer a statement verified by a statement of truth, together with any further evidence on which the respondent intends to rely.
(2) The applicant may, within 7 days beginning with the date on which the respondent’s evidence was served under paragraph (1), file and serve a statement in reply verified by a statement of truth, together with any further evidence on which the applicant intends to rely.
Adjournment
12.51. The court will not adjourn the hearing of an application to which this section applies for more than 21 days at at any one time.
Stay of proceedings upon notification of wrongful removal etc.
12.52.—(1) In this rule and in rule 12.53—
(a)“relevant authority” means —
(i)the High Court;
(ii)a county court;
(iii)a magistrates’ court;
(iv)the Court of Session;
(v)a sheriff court;
(vi)a children’s hearing within the meaning of section 93 of the Children (Scotland) Act 1995;
(vii)the High Court in Northern Ireland;
(viii)a county court in Northern Ireland;
(ix)a court of summary jurisdiction in Northern Ireland;
(x)the Royal Court of Jersey;
(xi)a court of summary jurisdiction in Jersey;
(xii)the High Court of Justice of the Isle of Man;
(xiii)a court of summary jurisdiction in the Isle of Man; or
(xiv)the Secretary of State; and
(b)“rights of custody” has the same meaning as in the 1980 Hague Convention.
(2) Where a party to proceedings under the 1980 Hague Convention knows that an application relating to the merits of rights of custody is pending in or before a relevant authority, that party must file within the proceedings under the 1980 Hague Convention a concise statement of the nature of that application, including the relevant authority in or before which it is pending.
(3) On receipt of a statement filed in accordance with paragraph (2) above, a court officer will notify the relegant authority in or before which the application is pending and will subsequently notify the relevant authority of the result of the proceedings.
(4) On receipt by the relevant authority of a notification under paragraph (3) from the High Court or equivalent notification from the Court of Session, the High Court in Northern Ireland or the High Court of Justice of the Isle of Man—
(a)all further proceedings in the action will be stayed(GL) unless and until the proceedings under the 1980 Hague Convention in the High Court, Court of Session, the High Court in Northern Ireland or the High Court of Justice of the Isle of Man are dismissed; and
(b)the parties to the action will be notified by the court officer of the stay(GL) and dismissal.
Stay of proceedings where application made under s.16 of the 1985 Act (registration of decisions under the European Convention)
12.53.—(1) A person who—
(a)is a party to—
(i)proceedings under section 16 of the 1985 Act; or
(ii)proceedings as a result of which a decision relating to custody has been registered under section 16 of the 1985 Act; and
(b)knows that an application is pending under—
(i)section 20(2) of the 1985 Act;
(ii)Article 21(2) of the Child Abduction and Custody (Jersey) Law 2005; or
(iii)section 42(2) of the Child Custody Act 1987 (an Act of Tynwald),
must file within the proceedings under section 16 of the 1985 Act a concise statement of the nature of the pending application.
(2) On receipt of a statement filed in accordance with paragraph (1) above, a court officer will notify the relevant authority in or before which the application is pending and will subsequently notify the relevant authority of the result of the proceedings.
(3) On receipt by the relevant authority of a notification under paragraph (2) from the High Court or equivalent notification from the Court of Session, the High Court in Northern Ireland or the High Court of Justice of the Isle of Man, the court officer will notify the parties to the action.
Transfer of proceedings
12.54.—(1) At any stage in proceedings under the 1985 Act the court may-
(a)of its own initiative; or
(b)on the application of a party with a minimum of two days’ notice;
order that the proceedings be transferred to a court listed in paragraph (4).
(2) Where the court makes an order for transfer under paragraph (1)—
(a)the court will state its reasons on the face of the order;
(b)a court officer will send a copy of the order, the application and the accompanying documents (if any) and any evidence to the court to which the proceedings are transferred; and
(c)the costs of the proceedings both before and after the transfer will be at the discretion of the court to which the proceedings are transferred.
(3) Where proceedings are transferred to the High Court from a court listed in paragraph (4), a court officer will notify the parties of the transfer and the proceedings will continue as if they had been commenced in the High Court.
(4) The listed courts are the Court of Session, the High Court in Northern Ireland, the Royal Court of Jersey or the High Court of Justice of the Isle of Man.
Revocation and variation of registered decisions
12.55.—(1) This rule applies to decisions which—
(a)have been registered under section 16 of the 1985 Act; and
(b)are subsequently varied or revoked by an authority in the Contracting State in which they were made.
(2) The court will, on cancelling the registration of a decision which has been revoked, notify—
(a)the person appearing to the court to have care of the child;
(b)the person on whose behalf the application for registration of the decision was made; and
(c)any other party to the application.
(3) The court will, on being informed of the variation of a decision, notify—
(a)the party appearing to the court to have care of the child; and
(b)any party to the application for registration of the decision;
and any such person may apply to make representations to the court before the registration is varied.
(4) Any person appearing to the court to have an interest in the proceedings may apply for the registration of a decision for the cancellation or variation of the decision referred to in paragraph (1).
The central index of decisions registered under the 1985 Act
12.56. A central index of decisions registered under section 16 of the 1985 Act, together with any variation of those decisions made under section 17 of that Act, will be kept by the principal registry.
Disclosure of information in proceedings under the European Convention
12.57. At any stage in proceedings under the European Convention the court may, if it has reason to believe that any person may have relevant information about the child who is the subject of those proceedings, order that person to disclose such information and may for that purpose order that the person attend before it or file affidavit(GL) evidence.
SECTION 2Applications relating to the Council Regulation and the 1996 Hague Convention
Interpretation
12.58.—(1) In this section —
“Central Authority” means, in relation to England and Wales, the Lord Chancellor;
“Contracting State” means a State party to the 1996 Hague Convention;
“judgment” has the meaning given in Article 2(4) of the Council Regulation;
“Member State” means a Member State bound by the Council Regulation or a country which has subsequently adopted the Council Regulation;
“parental responsibility” has the meaning given in —
Article 2(7) of the Council Regulation in relation to proceedings under that Regulation; and
Article 1(2) of the 1996 Hague Convention in relation to proceedings under that Convention; and
“seised” has the meaning given in Article 16 of the Council Regulation.
(2) In rules 12.59 to 12.70, references to the court of another member State or Contracting State include authorities within the meaning of “court” in Article 2(1) of the Council Regulation, and authorities of Contracting States which have jurisdiction to take measures directed to the protection of the person or property of the child within the meaning of the 1996 Hague Convention.
Procedure under Article 11(6) of the Council Regulation where the court makes a non-return order under Article 13 of the 1980 Hague Convention
12.59.—(1) Where the court makes an order for the non-return of a child under Article 13 of the 1980 Hague Convention, it must immediately transmit the documents referred to in Article 11(6) of the Council Regulation —
(a)directly to the court with jurisdiction or the central authority in the Member State where the child was habitually resident immediately before the wrongful removal to, or wrongful retention in, England and Wales; or
(b)to the Central Authority for England and Wales for onward transmission to the court with jurisdiction or the central authority in the other Member State mentioned in sub-paragraph (a).
(2) The documents required by paragraph (1) must be transmitted by a method which, in the case of direct transmission to the court with jurisdiction in the other Member State, ensures and, in any other case, will not prevent, their receipt by that court within one month of the date of the non-return order.
Procedure under Article 11(7) of the Council Regulation where the court receives a non-return order made under Article 13 of the 1980 Hague Convention by a court in another Member State
12.60.—(1) This rule applies where the court receives an order made by a court in another Member State for the non-return of a child.
(2) In this rule, the order for non-return of the child and the papers transmitted with that order from the court in the other Member State are referred to as “the non-return order”.
(3) Where, at the time of receipt of the non-return order, the court is already seised of a question of parental responsibility in relation to the child, —
(a)the court officer shall immediately —
(i)serve copies of the non-return order on each party to the proceedings in which a question of parental responsibility in relation to the child is at issue; and
(ii)where the non-return order was received directly from the court or the central authority in the other Member State, transmit to the Central Authority for England and Wales a copy of the non-return order.
(b)the court shall immediately invite the parties to the 1980 Hague Convention proceedings to file written submissions in respect of the question of custody by a specified date, or to attend a hearing to consider the future conduct of the proceedings in the light of the non-return order.
(4) Where, at the time of receipt of the non-return order, the court is not already seised of the question of parental responsibility in relation to the child, it shall immediately—
(a)open a court file in respect of the child and assign a court reference to the file;
(b)serve a copy of the non-return order on each party to the proceedings before the court in the Member State which made that order;
(c)invite each party to file, within 3 months of notification to that party of receipt of the non-return order, submissions in the form of—
(i)an application for an order under—
(aa)the 1989 Act; or
(bb)(in the High Court only) an application under the inherent jurisdiction in respect of the child; or
(ii)where permission is required to make an application for the order in question, an application for that permission;
(d)where the non-return order was received directly from the court or central authority in the other Member State, transmit to the Central Authority for England and Wales a copy of the non-return order.
(5) In a case to which paragraph (4) applies where no application is filed within the 3 month period provided for by paragraph (4)(c) the court must close its file in respect of the child.
(Enforcement of a subsequent judgment requiring the return of the child, made under Article 11(8) by a court examining custody of the child under Article 11(7), is dealt with in Part 31 below.)
Transfer of proceedings under Article 15 of the Council Regulation or under Article 8 of the 1996 Hague Convention
12.61.—(1) Where the court is considering the transfer of proceedings to the court of another Member State or Contracting State under rules 12.62 to 12.64 it will—
(a)fix a date for a hearing for the court to consider the question of transfer; and
(b)give directions as to the manner in which the parties may make representations.
(2) The court may, with the consent of all parties, deal with the question of transfer without a hearing.
(3) Directions which are in force immediately prior to the transfer of proceedings to a court in another Member State or Contracting State under rules 12.62 to 12.64 will continue to apply until the court in that other State accepts jurisdiction in accordance with the provisions of the Council Regulation or the 1996 Hague Convention (as appropriate), subject to any variation or revocation of the directions.
(4) The court or court officer will—
(a)take a note of the giving, variation or revocation of directions under this rule; and
(b)as soon as practicable serve a copy of the directions order on every party.
(5) A register of all applications and requests for transfer of jurisdiction to or from another Member State or Contracting State will be kept by the principal registry.
Application by a party for transfer of the proceedings
12.62.—(1) A party may apply to the court under Article 15(1) of the Council Regulation or under Article 8(1) of the 1996 Hague Convention —
(a)to stay(GL) the proceedings or a specified part of the proceedings and to invite the parties to introduce a request before a court of another Member State or Contracting State; or
(b)to make a request to a court of another Member State or another Contracting State to assume jurisdiction for the proceedings, or a specified part of the proceedings.
(2) An application under paragraph (1) must be made—
(a)to the court in which the relevant parental responsibility proceedings are pending; and
(b)using the Part 18 procedure.
(3) The applicant must file the application notice and serve it on the respondents—
(a)where the application is also made under Article 11 of the Council Regulation, not less than 5 days, and
(b)in any other case, not less than 42 days,
before the hearing of the application.
Application by a court of another Member State or another Contracting State for transfer of the proceedings
12.63.—(1) This rule applies where a court of another Member State or another Contracting State makes an application under Article 15(2)(c) of the Council Regulation or under Article 9 of the 1996 Hague Convention that the court having jurisdiction in relation to the proceedings transfer the proceedings or a specific part of the proceedings to the applicant court.
(2) When the court receives the application, the court officer will—
(a)as soon as practicable, notify the Central Authority for England and Wales of the application; and
(b)serve the application, and notice of the hearing on all other parties in England and Wales not less than 5 days before the hearing of the application.
Exercise by the court of its own initiative of powers to seek to transfer the proceedings
12.64.—(1) The court having jurisdiction in relation to the proceedings may exercise its powers of its own initiative under Article 15 of the Council Regulation or Article 8 of the 1996 Hague Convention in relation to the proceedings or a specified part of the proceedings.
(2) Where the court proposes to exercise its powers, the court officer will give the parties not less than 5 days’ notice of the hearing.
Application to High Court to make request under Article 15 of the Council Regulation or Article 9 of the 1996 Hague Convention to request transfer of jurisdiction
12.65.—(1) An application for the court to request transfer of jurisdiction in a matter concerning a child from another Member State or another Contracting State under Article 15 of the Council Regulation, or Article 9 of the 1996 Hague Convention (as the case may be) must be made to the principal registry and heard in the High Court.
(2) An application must be made without notice to any other person and the court may give directions about joining any other party to the application.
(3) Where there is agreement between the court and the court or competent authority to which the request under paragraph (1) is made to transfer the matter to the courts of England and Wales, the court will consider with that other court or competent authority the specific timing and conditions for the transfer.
(4) Upon receipt of agreement to transfer jurisdiction from the court or other competent authority in the Member State, or Contracting State to which the request has been made, the court officer will serve on the applicant a notice that jurisdiction has been accepted by the courts of England and Wales.
(5) The applicant must attach the notice referred to in paragraph (3) to any subsequent application in relation to the child.
(6) Nothing in this rule requires an application with respect to a child commenced following a transfer of jurisdiction to be made to or heard in the High Court.
(7) Upon allocation, the court to which the proceedings are allocated must immediately fix a directions hearing to consider the future conduct of the case.
Procedure where the court receives a request from the authorities of another Member State or Contracting State to assume jurisdiction in a matter concerning a child
12.66.—(1) Where any court other than the High Court receives a request to assume jurisdiction in a matter concerning a child from a court or other authority which has jurisdiction in another Member State or Contracting State, that court must immediately refer the request to a Judge of the High Court for a decision regarding acceptance of jurisdiction to be made.
(2) Upon the High Court agreeing to the request under paragraph (1), the court officer will notify the parties to the proceedings before the other Member State or Contracting State of that decision, and the case must be allocated as if the application had been made in England and Wales.
(3) Upon allocation, the court to which the proceedings are allocated must immediately fix a directions hearing to consider the future conduct of the case.
(4) The court officer will serve notice of the directions hearing on all parties to the proceedings in the other Member State or Contracting State no later than 5 days before the date of that hearing.
Service of the court’s order or request relating to transfer of jurisdiction under the Council Regulation or the 1996 Hague Convention
12.67. The court officer will serve an order or request relating to transfer of jurisdiction on all parties, the Central Authority of the other Member State or Contracting State, and the Central Authority for England and Wales.
Questions as to the court’s jurisdiction or whether the proceedings should be stayed
12.68.—(1) If at any time after issue of the application it appears to the court that under any of Articles 16 to 18 of the Council Regulation it does not or may not have jurisdiction to hear an application, or that under Article 19 of the Council Regulation or Article 13 of the 1996 Hague Convention it is or may be required to stay(GL) the proceedings or to decline jurisdiction, the court must—
(a)stay(GL) the proceedings; and
(b)fix a date for a hearing to determine jurisdiction or whether there should be a stay(GL) or other order.
(2) The court officer will serve notice of the hearing referred to at paragraph (1)(b) on the parties to the proceedings.
(3) The court must, in writing—
(a)give reasons for its decision under paragraph (1); and
(b)where it makes a finding of fact, state such finding.
(4) The court may with the consent of all the parties deal with any question as to the jurisdiction of the court, or as to whether the proceedings should be stayed(GL), without a hearing.
Request for consultation as to contemplated placement of child in England and Wales
12.69.—(1) This rule applies to a request made —
(a)under Article 56 of the Council Regulation, by a court in another Member State; or
(b)under Article 33 of the 1996 Hague Convention by a court in another Contracting State
for consultation on or consent to the contemplated placement of a child in England and Wales.
(2) Where the court receives a request directly from a court in another Member State or Contracting State, the court shall, as soon as practicable after receipt of the request, notify the Central Authority for England and Wales of the request and take the appropriate action under paragraph (4).
(3) Where it appears to the court officer that no proceedings relating to the child are pending before a court in England and Wales, the court officer must inform the Central Authority for England and Wales of that fact and forward to the Central Authority all documents relating to the request sent by the court in the other Member State or Contracting State.
(4) Where the court receives a request forwarded by the Central Authority for England and Wales, the court must, as soon as practicable after receipt of the request, either—
(a)where proceedings relating to the child are pending before the court, fix a directions hearing; or
(b)where proceedings relating to the child are pending before another court in England and Wales, send a copy of the request to that court.
Request made by court in England and Wales for consultation as to contemplated placement of child in another Member State or Contracting State
12.70.—(1) This rule applies where the court is contemplating the placement of a child in another Member State under Article 56 of the Council Regulation or another Contracting State under Article 33 of the 1996 Hague Convention, and proposes to send a request for consultation with or for the consent of the central authority or other authority having jurisdiction in the other State in relation to the contemplated placement.
(2) In this rule, a reference to “the request” includes a reference to a report prepared for purposes of Article 33 of the 1996 Hague Convention where the request is made under that Convention.
(3) Where the court sends the request directly to the central authority or other authority having jurisdiction in the other State, it shall at the same time send a copy of the request to the Central Authority for England and Wales.
(4) The court may send the request to the Central Authority for England and Wales for onward transmission to the central authority or other authority having jurisdiction in the other Member State.
(5) The court should give consideration to the documents which should accompany the request.
(See Chapters 1 to 3 of this Part generally, for the procedure governing applications for an order under paragraph 19(1) of Schedule 2 to the 1989 Act permitting a local authority to arrange for any child in its care to live outside England and Wales.)
(Part 14 sets out the procedure governing applications for an order under section 84 (giving parental responsibility prior to adoption abroad) of the Adoption and Children Act 2002.)
Application for a declaration as to the extent, or existence, of parental responsibility in relation to a child under Article 16 of the 1996 Hague Convention
12.71.—(1) Any interested person may apply for a declaration —
(a)that a person has, or does not have, parental responsibility for a child; or
(b)as to the extent of a person’s parental responsibility for a child,
where the question arises by virtue of the application of Article 16 of the 1996 Hague Convention.
(2) An application for a declaration as to the extent, or existence of a person’s parental responsibility for a child by virtue of Article 16 of the 1996 Hague Convention must be made in the principal registry and heard in the High Court.
(3) An application for a declaration referred to in paragraph (1) may not be made where the question raised is otherwise capable of resolution in any other family proceedings in respect of the child.
Section 5 was amended by section 115(2), (4)(a) (i), (4)(b) and 4(c ) of the Adoption and Children Act 2002.
Section 24A was inserted by section 67(4) of the Family Law Act 1986.