Child Abduction and
Custody (Jersey) Law 2005
A LAW to enable two international
Conventions relating respectively to the civil aspects of international child
abduction and to the recognition and enforcement of custody decisions to be
extended to Jersey.
Commencement [see endnotes]
PART 1
PRELIMINARY
1 Interpretation
In this Law, unless the
context otherwise requires –
“Children Law”
means the Children
(Jersey) Law 2002;
“Court” means
the Royal Court;
“custody order”
means any order mentioned in Article 2(1);
“custody proceedings”
means any proceedings in which a custody order may be made, varied or revoked;
“decision relating
to custody” has the same meaning as in the European Convention;
“decision relating
to rights of access” means a decision as to the contact which a child
may, or may not, have with any person;
“European Convention”
means the Convention described in Article 13;
“Hague Convention”
means the Convention described in Article 3;
“prescribed”
means prescribed by Rules of Court under Article 13 of the Royal Court
(Jersey) Law 1948;
“probation officer” means a délégué
appointed pursuant to the Loi (1937) sur
l’atténuation des peines et sur la mise en liberté
surveillée;
“United Kingdom Act”
means the Child Abduction and Custody Act 1985 of the United Kingdom.
2 Custody
orders
(1) The
following are custody orders for the purposes of this Law –
(a) a
care order under the Children Law (as defined by Article 1 of that
Law, read with Schedule 5 to that Law);
(b) a
residence order (as defined by Article 1 of the Children Law);
(c) an
order under Article 25 of the Matrimonial
Causes (Jersey) Law 1949 or Article 26 of the Children (Jersey)
Law 1969 with respect to the custody of a child;
(ca) an order under
Article 44 of the Civil
Partnership (Jersey) Law 2012;
(d) an
order under Article 25 of the Matrimonial
Causes (Jersey) Law 1949 placing a child under the protection of the
court;
(e) an
order under Article 2 or 5 of the Separation and
Maintenance Orders (Jersey) Law 1953 with respect to the legal custody
of a child; and
(f) any
order of the Court in the exercise of its inherent jurisdiction in so far as it
gives the care and control of a child to any person.[1]
(2) The
States may by Regulations amend paragraph (1) by making additions to or
deletions from the list of orders therein set out.
PART 2
INTERNATIONAL CHILD
ABDUCTION
3 The
Hague Convention
(1) In
this Part “Convention” means the Convention on the Civil Aspects of
International Child Abduction signed at The Hague on 25th October 1980.
(2) Subject
to this Part, the provisions of the Convention set out in Schedule 1 shall
have the force of law in Jersey.
4 Contracting
States
(1) For
the purposes of the Convention as it has the force of law under this Part, the
Contracting States other than the United Kingdom shall be those for the time
being specified by Order of the Chief Minister for the purposes of this
Article.[2]
(2) An
Order under this Article shall specify the date of the coming into force of the
Convention as between Jersey and any State specified in the Order; and except
where the Order otherwise provides, the Convention shall apply as between
Jersey 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
paragraphs (1) and (2) shall be construed as references to that territory
or those territories.
5 The
Central Authority
The functions under the
Convention of a Central Authority shall be discharged in Jersey by the Attorney
General.
6 The
Judicial Authority
The judicial authority
having jurisdiction in Jersey to entertain applications under the Convention
shall be the Royal Court.
7 Interim
powers
Where an application has
been made to the Court 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.
8 Reports
(1) Where
the Attorney General is requested to provide information relating to a child
under Article 7(d) of the Convention the Attorney General may –
(a) request
the Minister for Children and Families or a probation officer to make a report
to the Attorney General in writing with respect to any matter that appears to
the Attorney General to be relevant;
(b) request
any court in Jersey to which a written report relating to the child has been
made to send the Attorney General a copy of the report,
and such a request shall
be duly complied with.[3]
(2) A
request pursuant to paragraph (1)(b) may be addressed to the Judicial
Greffier.
9 Proof
of documents and evidence
(1) For
the purposes of Article 14 of the Convention, a decision or determination
of a judicial or administrative authority outside Jersey may be proved in
Jersey 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 paragraph (1) 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.
10 Declaration
of the Court
The Court 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 that the removal of any child from, or the child’s retention
outside, Jersey was wrongful within the meaning of Article 3 of the
Convention.
11 Suspension
of the Court’s powers in case of wrongful removal
(1) 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 –
(i) a custody order,
or
(ii) a
supervision order under Article 24 of the Children Law;
(b) enforcing
under Article 13 of the Child Custody
(Jurisdiction) (Jersey) Law 2005 a Part I order within the
meaning of Article 1(1) of that Law; or
(c) registering
or enforcing a decision under Part 3.
(2) The
States may by Regulations amend paragraph (1) by making additions to or
deletions from the list of proceedings.
12 Cost
of applications
The United Kingdom having
made in respect of Jersey such a reservation as is mentioned in the 3rd
paragraph of Article 26 of the Convention, the costs mentioned in that
paragraph shall not be borne by any public authority in Jersey except so far as
they fall to be so borne by virtue of the grant of a legal aid certificate.
PART 3
RECOGNITION AND ENFORCEMENT
OF CUSTODY DECISIONS
13 The
European Convention
(1) In
this Part “Convention” means the European Convention on Recognition
and Enforcement of Decisions concerning Custody of Children and on Restoration
of Custody of Children signed in Luxembourg on 20th May 1980.
(2) Subject
to this Part, the provisions of the Convention set out in Schedule 2
(which include Articles 9 and 10 of the Convention as they have effect in
consequence of a reservation made by the United Kingdom in respect of Jersey
under Article 17 thereof) shall have the force of law in Jersey.
14 Contracting
States
(1) For
the purposes of the Convention as it has effect under this Part the Contracting
States other than the United Kingdom shall be those for the time being
specified by Order of the Chief Minister under this Article.[4]
(2) An
Order under this Article shall specify the date of the coming into force of the
Convention as between Jersey 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 paragraphs (1)
and (2) shall be construed as references to that territory or those
territories.
15 The
Central Authority
The functions under the
Convention of a Central Authority shall be discharged in Jersey by the Attorney
General.
16 Recognition
of decisions
(1) Articles 7
and 12 of the Convention shall have effect in accordance with this Article.
(2) A
decision to which either of those Articles of the Convention applies which was made
in a Contracting State other than the United Kingdom shall be recognized as if
made by the Court save that –
(a) the
Court 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 Jersey; and
(b) the
decision shall not be enforceable in Jersey unless registered in the Court
under Article 17.
(3) For
the purposes of this Part the references in Article 9(1)(c) of the
Convention to the removal of the child are to the child’s improper
removal within the meaning of the Convention.
17 Registration
of decisions
(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 the Court.
(2) The
Attorney General shall assist such a person in making such an application if a
request for such assistance is made by the person or on the person’s
behalf by the Central Authority of the Contracting State in question.
(3) An
application under paragraph (1) or a request under paragraph (2)
shall be treated as a request for enforcement for the purposes of Articles 10
and 13 of the Convention.
(4) The
Court shall only register a decision if –
(a) it
considers that, on any of the grounds specified in Article 9 or 10 of the
Convention, the decision should be recognised in Jersey;
(b) it
considers that the decision is enforceable in the Contracting State where it
was made and is a decision to which Article 12 of the Convention applies;
or
(c) an
application in respect of the child under Part 2 is not pending.
18 Variation
and revocation of registered decisions
(1) Where
a decision which has been registered under Article 17 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 of the variation or revocation.
(2) Where
the Court is notified under paragraph (1) of the revocation of a decision,
it shall –
(a) cancel
the registration; and
(b) notify
the cancellation to such persons as may be prescribed.
(3) Where
the Court is notified under paragraph (1) of the variation of a decision,
it shall –
(a) notify
the variation to such persons as may be prescribed; and
(b) subject
to any conditions which may be prescribed, vary the registration.
(4) Where
a decision has been registered under Article 17, the Court 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.
19 Enforcement
of decisions
Where a decision relating
to custody has been registered under Article 17, the Court shall have the
same powers for the purpose of enforcing the decision as if the Court had made
the decision and action for or with respect to enforcement may be taken
accordingly.
20 Interim
powers
Where an application has
been made to the Court for the registration of a decision under Article 17
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 any subsequent
application for the enforcement of the decision.
21 Suspension
of court’s powers
(1) Where
it appears to any court in Jersey in which proceedings mentioned in paragraph (2)
are pending in respect of a child that –
(a) an
application has been made for the registration under Article 17, or under
section 16 of the United Kingdom Act, of a decision in respect of the
child 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 paragraph (2) unless, in the case of an application for registration,
the application is refused.
(2) Where
paragraph (1) applies the court shall not –
(a) in
the case of custody proceedings, make, vary or revoke any –
(i) custody order, or
(ii) supervision
order under Article 24 of the Children Law; or
(b) in
the case of proceedings under Article 13 of the Child Custody
(Jurisdiction) (Jersey) Law 2005 for the enforcement of a Part I
order within the meaning of Article 1(1) of that Law, enforce that order.
(3) Paragraph (1)
does not apply to a decision that is only a decision relating to custody within
the meaning of Article 17 by virtue of being a decision relating to rights
of access.
(4) For
the purposes of this Part Article 10(2)(b) of the Convention shall be
construed as referring to custody proceedings within the meaning of this Law.
22 Reports
(1) Where
the Attorney General is requested to make enquiries about a child under Article 15(1)(b)
of the Convention the Attorney General may –
(a) request
the Minister for Children and Families or a probation officer to make a report
to the Attorney General in writing with respect to any matter relating to the
child concerned which appears to the Attorney General to be relevant;
(b) request
any court in Jersey to which a written report relating to the child has been
made to send the Attorney General a copy of the report,
and any such request shall
be duly complied with.[5]
(2) A
request pursuant to paragraph (1)(b) may be addressed to the Judicial
Greffier.
23 Proof
of documents and evidence
(1) In
any proceedings under this Part a decision of an authority outside Jersey 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 paragraph (1) 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 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.
24 Decisions
of Jersey courts
(1) Where
a person on whom any rights are conferred by a decision relating to custody
made by a Jersey court makes an application to the Attorney General under Article 4
of the Convention with a view to securing its recognition or enforcement outside
Jersey but in a Contracting State, the Attorney General may require the
Judicial Greffier to furnish the Attorney General 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 Jersey court makes a decision relating to a child
who has been removed from Jersey, 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 satisfied that –
(a) the
applicant has an interest in the matter; and
(b) the
child has been taken from or sent or kept out of Jersey 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 Jersey.
PART 4
SUPPLEMENTARY
25 Power
to order disclosure of child’s whereabouts
(1) Where –
(a) in
proceedings for the return of a child under Part 2; or
(b) on an
application for the recognition, registration or enforcement of a decision in
respect of a child under Part 3,
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 paragraph (1)
by reason that to do so may incriminate the person or the person’s spouse
or civil partner, 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.[6]
26 Termination
of existing custody orders, etc.
(1) Where –
(a) an
order is made for the return of a child under Part 2 or under Part I
of the United Kingdom Act; or
(b) a
decision with respect to a child is registered under Article 17 or under
section 26 of the United Kingdom Act,
any custody order relating
to the child shall cease to have effect.
(2) Paragraph (1)(b)
does not apply to a decision that is only a decision relating to custody within
the meaning of Article 17 by virtue of being a decision relating to rights
of access.
(3) Where,
by virtue of section 25(1) of the United Kingdom Act, an authorization
under section 26 of the Children and Young Persons Act 1969 of the
United Kingdom ceases to have effect, any relevant order (within the meaning of
section 26 of that Act) made by a court in Jersey and to which that
authorization relates shall cease to have effect.
27 Declarations
by United Kingdom courts
A declaration by a court
under section 15(2)(a) of the United Kingdom Act shall have the like
effect in Jersey as a declaration of the Court under Article 16(2)(a).
28 Rules
of Court
(1) The
power to make Rules of Court under Article 13 of the Royal Court
(Jersey) Law 1948 shall include a power to make such provision for
giving effect to this Law as appears to be necessary or expedient.
(2) Without
prejudice to the generality of paragraph (1) and any other provision of
this Law, Rules of Court may make provision –
(a) with respect
to the procedure on applications to the Court under any provision of this Law
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 giving of notices by or to the Court for the purposes of the provisions of
Article 16 of the Hague Convention and Article 11 of this Law, and
generally as respects proceedings to which those provisions apply;
(c) for
enabling a person who wishes to make an application under the Hague Convention
outside Jersey but in a Contracting State to obtain from the Court an
authenticated copy of any decision of the Court relating to the child to whom
the application is to relate; and
(d) for
the giving of directions requiring the disclosure of information about any
child who is the subject of proceedings under Part 3 and for safeguarding
the child’s welfare.
29 Citation
and commencement
This Law may be cited as
the Child Abduction and Custody (Jersey) Law 2005.
Schedule 1
(Article 3(2))
PROVISIONS OF THE CONVENTION
ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION HAVING FORCE OF LAW
IN JERSEY
CHAPTER I – SCOPE OF THE
CONVENTION
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 sixteen 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 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 other 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 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 –
(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 or 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.
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 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 or 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 Authority 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.
Schedule 2
(Article 13(2))
THE PROVISIONS OF THE EUROPEAN
CONVENTION ON RECOGNITION AND ENFORCEMENT OF DECISIONS CONCERNING CUSTODY OF
CHILDREN AND ON RESTORATION OF CUSTODY OF CHILDREN HAVING FORCE OF LAW IN
JERSEY
Article 1
For the purposes of this
Convention:
(a) “child”
means a person of any nationality, so long as he is under 16 years of age
and has not the right to decide on his own place of residence under the law of
his habitual residence, the law of his nationality or the internal law of the
State addressed;
(b) “authority”
means a judicial or administrative authority;
(c) “decision
relating to custody” means a decision of an authority in so far as it
relates to the care of the person of the child, including the right to decide
on the place of his residence, or to the right of access to him;
(d) “improper
removal” means the removal of a child across an international frontier in
breach of a decision relating to his custody which has been given in a
Contracting State and which is enforceable in such a State; “improper
removal” also includes:
(i) the
failure to return a child across an international frontier at the end of a
period of the exercise of the right of access to this child or at the end of
any other temporary stay in a territory other than that where the custody is
exercised;
(ii) a
removal which is subsequently declared unlawful within the meaning of Article 12.
Article 4
(1) Any
person who has obtained in a Contracting State a decision relating to the
custody of a child and who wishes to have that decision recognised or enforced
in another Contracting State may submit an application for this purpose to the
central authority in any Contracting State.
(2) The
application shall be accompanied by the documents mentioned in Article 13.
(3) The
central authority receiving the application, if it is not the central authority
in the State addressed, shall send the documents directly and without delay to
that central authority.
(4) The
central authority receiving the application may refuse to intervene where it is
manifestly clear that the conditions laid down by this Convention are not
satisfied.
(5) The
central authority receiving the application shall keep the applicant informed
without delay of the progress of his application.
Article 5
(1) The
central authority in the State addressed shall take or cause to be taken
without delay all steps which it considers to be appropriate, if necessary by
instituting proceedings before its competent authorities, in order:
(a) to
discover the whereabouts of the child;
(b) to
avoid, in particular by any necessary provisional measures, prejudice to the
interests of the child or of the applicant;
(c) to
secure the recognition or enforcement of the decision;
(d) to
secure the delivery of the child to the applicant where enforcement is granted;
(e) to
inform the requesting authority of the measures taken and their results.
(2) Where
the central authority in the State addressed has reason to believe that the
child is in the territory of another Contracting State it shall send the
documents directly and without delay to the central authority of that State.
(3) With
the exception of the cost of repatriation, each Contracting State undertakes
not to claim any payment from an applicant in respect of any measures taken
under paragraph (1) of this Article by the central authority of that State
on the applicant’s behalf, including the costs of proceedings and, where
applicable, the costs incurred by the assistance of a lawyer.
(4) If
recognition or enforcement is refused, and f the central authority of the State
addressed considers that it should comply with a request by the applicant to
bring in that State proceedings concerning the substance of the case, that
authority shall use its best endeavours to secure the representation of the
applicant in the proceedings under conditions no less favourable than those
available to a person who is resident in and a national of that State and for
this purpose it may, in particular, institute proceedings before its competent
authorities.
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
(1) [Recognition
and enforcement may be refused] if:
(a) in
the case of a decision given in the absence of the defendant or his legal
representative, the defendant was not duly served with the document which
instituted the proceedings or an equivalent document in sufficient time to
enable him to arrange his defence; but such a failure to effect service cannot
constitute a ground for refusing recognition or enforcement where service was
not effected because the defendant had concealed his whereabouts from the
person who instituted the proceedings in the State of origin;
(b) in
the case of a decision given in the absence of the defendant or his legal
representative, the competence of the authority giving the decision was not
founded:
(i) on the habitual
residence of the defendant; or
(ii) on
the last common habitual residence of the child’s parents, at least one
parent being still habitually resident there, or
(iii) on
the habitual residence of the child;
(c) the
decision is incompatible with a decision relating to custody which became
enforceable in the State addressed before the removal of the child,
unless the child has had his habitual residence in the territory of the
requesting State for one year before his removal.
(3) In
no circumstances may the foreign decision be reviewed as to its substance.
Article 10
(1) [Recognition
and enforcement may also be refused] on any of the following grounds:
(a) if it
is found that the effects of the decision are manifestly incompatible with the
fundamental principles of the law relating to the family and children in the
State addressed;
(b) if it
is found that by reason of a change in the circumstances including the passage
of time but not including a mere change in the residence of the child after an
improper removal, the effects of the original decision are manifestly no longer
in accordance with the welfare of the child;
(c) if at
the time when the proceedings were instituted in the State of origin:
(i) the child was a
national of the State addressed or was habitually resident there and no such
connection existed with the State of origin;
(ii) the
child was a national both of the State of origin and of the State addressed and
was habitually resident in the State addressed;
(d) if
the decision is incompatible with a decision given in the State addressed or
enforceable in that State after being given in a third State, pursuant to
proceedings begun before the submission of the request for recognition or
enforcement, and if the refusal is in accordance with the welfare of the child.
(2) Proceedings
for recognition or enforcement may be adjourned on any of the following
grounds:
(a) if an
ordinary form of review of the original decision has been commenced;
(b) if
proceedings relating to the custody of the child, commenced before the
proceedings in the State of origin were instituted, are pending in the State
addressed;
(c) if
another decision concerning the custody of the child is the subject of
proceedings for enforcement or of any other proceedings concerning the
recognition of the decision.
Article 11
(1) Decisions
on rights of access and provisions of decisions relating to custody which deal
with the rights of access shall be recognised and enforced subject to the same
conditions as other decisions relating to custody.
(2) However,
the competent authority of the State addressed may fix the conditions for the
implementation and exercise of the right of access taking into account, in
particular, undertakings given by the parties on this matter.
(3) Where
no decision on the right of access has been taken or where recognition or
enforcement of the decision relating to custody is refused, the central
authority of the State addressed may apply to its competent authorities for a
decision on the right of access, if the person claiming a right of access so
requests.
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
(1) A
request for recognition or enforcement in another Contracting State of a
decision relating to custody shall be accompanied by:
(a) a
document authorising the central authority of the State addressed to act on
behalf of the applicant or to designate another representative for that
purpose;
(b) a
copy of the decision which satisfies the necessary conditions of authenticity;
(c) in
the case of a decision given in the absence of the defendant or his legal
representative, a document which establishes that the defendant was duly served
with the document which instituted the proceedings or an equivalent document;
(d) if
applicable, any document which establishes that, in accordance with the law of
the State of origin, the decision is enforceable;
(e) if
possible, a statement indicating the whereabouts or likely whereabouts of the
child in the State addressed;
(f) proposals
as to how the custody of the child should be restored.
Article 15
(1) Before
reaching a decision under paragraph (1)(b) of Article 10, the authority
concerned in the State addressed:
(a) shall
ascertain the child’s views unless this is impracticable having regard in
particular to his age and understanding; and
(b) may
request that any appropriate enquiries be carried out.
(2) The
cost of enquiries in any contracting State shall be met by the authorities of
the State where they are carried out.
Requests for enquiries
and the results of enquiries may be sent to the authority concerned through the
central authorities.
Article 26
(1) In
relation to a State which has in matters of custody two or more systems of law
of territorial application:
(a) reference
to the law of a person’s habitual residence or to the law of a
person’s nationality shall be construed as referring to the system of law
determined by the rules in force in that State or, if there are no such rules,
to the system of law with which the person concerned is most closely connected;
(b) reference
to the State of origin or to the State addressed shall be construed as
referring, as the case may be, to the territorial unit where the decision was
given or to the territorial unit where recognition or enforcement of the
decision or restoration of custody is requested.
(2) Paragraph (1)(a)
of this Article also applies mutatis mutandis to States which have in matters
of custody two or more systems of law of personal application.