|Next (SCHEDULE Text of the Hague Convention of 19 October, 1996, on jurisdiction, applicable law , recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children)
Number 37 of 2000
PROTECTION OF CHILDREN (HAGUE CONVENTION) ACT, 2000
ARRANGEMENT OF SECTIONS
Text of the Hague Convention of 19 October, 1996, on jurisdiction, apllicable law, recognition, enforecement and co-operation in respect of parental responsibility and measures operation in respect of parental responsibility and measures for the protection of children
Number 37 of 2000
PROTECTION OF CHILDREN (HAGUE CONVENTION) ACT, 2000
AN ACT TO GIVE THE FORCE OF LAW TO THE CONVENTION ON JURISDICTION, APPLICABLE LAW, RECOGNITION, ENFORCEMENT AND CO-OPERATION IN RESPECT OF PARENTAL RESPONSIBILITY AND MEASURES FOR THE PROTECTION OF CHILDREN, SIGNED AT THE HAGUE ON THE 19th DAY OF OCTOBER, 1996, TO AMEND SECTIONS 14 AND 30 OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991, AND TO PROVIDE FOR CONSEQUENTIAL AND RELATED MATTERS. [16th December, 2000]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
1. —(1) In this Act, unless the context otherwise requires—
“another contracting state” means a contracting state other than the State;
“Article”, in relation to a numbered Article, means the Article so numbered of the Convention and reference to a subdivision of a numbered Article shall be construed accordingly;
“Central Authority” shall be construed in accordance with section 9 ;
“child” shall be construed by reference to Article 2;
“contracting state” means a state (other than any state to whose accession to the Convention the State may have raised an objection pursuant to Article 58.3) in respect of which the Convention has entered into force in accordance with Article 61 and shall be construed so that this Act shall have effect in relation to—
(a) in case a contracting state has declared pursuant to Article 59.1 that the Convention shall extend to one or more territorial units within that state, the territorial unit or units concerned, and
(b) each other contracting state;
“the Convention” means the Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children, signed at the Hague on the 19th day of October, 1996;
“decision” means a decision (other than a judgment) which is directed to the protection of the person or property of a child and is made pursuant to the Child Care Act, 1991 , or by a duly authorised person or body in another contracting state pursuant to the law of that state;
“judgment” means a judgment or order which is directed to the protection of the person or property of a child and is made either by a court in the State or by a competent judicial or administrative authority of another contracting state;
“measure” means a judgment or decision which is made in accordance with Chapter II of the Convention, and references to the taking of a measure shall be construed as references to the making of such a judgment or decision;
“the Minister” means the Minister for Justice, Equality and Law Reform;
“probation and welfare officer” means a person appointed by the Minister to be a probation and welfare officer or to be a probation officer or a welfare officer.
(2) In this Act—
(a) a reference to a section is to a section of this Act, unless it is indicated that a reference to some other enactment is intended,
(b) a reference to a subsection, paragraph or subparagraph is to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that a reference to some other provision is intended, and
(c) a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment.
Convention to have force of law.
2. —(1) Subject to the provisions of this Act, the Convention shall have the force of law in the State.
(2) Judicial notice shall be taken of the Convention.
(3) The text, in the English language, of the Convention is set out for convenience of reference in the Schedule to this Act.
Application of Convention in the State.
3. —(1) For the purposes of the application in the State of the Convention the provisions set out in subsection (2) shall have effect.
(2) (a) References in the Convention to authorities or authority, however qualified, shall be construed, where they occur—
(i) in Chapter II of the Convention, as including references to the appropriate court,
(ii) in Articles 24, 25 and 28, as references to the District Court,
(iii) in Articles 32, 33, 34, 35.1, 36 and 37, as including references to the appropriate court, and
(iv) in Article 35.2, as including a reference to the District Court.
(b) In proceedings under Chapter IV of the Convention for the recognition, enforcement or non-recognition of a measure taken in another contracting state the District Court shall pursuant to that Chapter and subject to paragraph (g), if applicable—
(i) if the request is for the recognition or enforcement of the measure, order either—
(I) that the measure be recognised or enforced in whole or in part, subject to any necessary modifications or adaptations, or
(II) that the request be refused,
(ii) if the request is for the non-recognition of the measure, order either—
(I) that the measure not be recognised, or
(II) that it be recognised or enforced in whole or in part, subject to any necessary modifications or adaptations.
(c) A measure in respect of which an order has been made under subparagraph (i)(I) or (ii)(II) of paragraph (b) shall, to the extent to which recognition or enforcement of the measure is authorised by the order, be of the same force and effect as if it were an order of the District Court.
(d) On the hearing of a request under Article 35.2 by a parent residing in the State who is seeking to obtain or maintain access to his or her child (being a child who does not habitually reside therein), the District Court shall by order declare either—
(i) that in its opinion the person is suitable to exercise access to the child (in which case the Court may, where appropriate, specify the conditions under which access should be exercised), or
(ii) that the person is not suitable to exercise access to the child.
(e) The definition of “father” in section 2 (inserted by the Children Act, 1997 ) of the Guardianship of Infants Act, 1964 , shall include the father of a child who has, by virtue of Article 16, acquired parental responsibility corresponding to guardianship in relation to the child by operation of the law of a state other than the State, and section 8(4) (which provides that certain guardians may be removed from office only by the court), as so inserted, of that Act shall apply in relation to such a father.
(f) If, pursuant to Article 55.1a, the State has reserved the jurisdiction of its authorities to take measures directed to the protection of property (or certain categories of property) of a child situated on its territory in cases where those authorities would not otherwise have jurisdiction under the Convention, then, for so long as the reservation has not been withdrawn, the appropriate courts shall in those cases have the jurisdiction so reserved.
(g) If, pursuant to Article 55.1b, the State has reserved the right not to recognise any parental responsibility or measure in so far as it is incompatible with any measure taken by its authorities in relation to any such property or categories of property mentioned in paragraph (f), then, for so long as the reservation has not been withdrawn, the District Court may refuse recognition of any such parental responsibility or measure to the extent that it is so incompatible.
(h) Subject to Article 52 and, if applicable, paragraph (f), any enactment or rule of law to the extent that it confers jurisdiction on a court otherwise than in accordance with the Convention to take measures directed to the protection of the person or property of a child who is habitually resident in a contracting state shall cease to have effect.
Exercise of jurisdiction.
4. —(1) The jurisdiction of the Circuit Court or District Court under the Convention may be exercised—
(a) in proceedings to which Chapter II of the Convention relates, by the judge of the Circuit Court or District Court who has jurisdiction in such proceedings under the law for the time being in force,
(b) in any application—
(i) under Chapter IV of the Convention for the recognition, enforcement or non-recognition of a measure, or
(ii) under Article 35.2 for a finding on the suitability of a parent to exercise access to his or her child and on the conditions under which access is to be exercised,
by the judge of the District Court for the time being assigned to the district court district in which the applicant or defendant resides,
(c) in relation to a request to either Court under Article 32b, 34.1 or 35.1, by the judge of the Circuit Court or District Court for the time being assigned to the circuit or the district court district in which the child to whom the request relates resides.
(2) Notwithstanding subsection (1), in any case of urgency the jurisdiction of the Circuit Court or District Court as respects the proceedings mentioned in that subsection may be exercised by any judge of the Circuit Court or District Court if he or she is of opinion that the best interests of the child concerned require that the jurisdiction be so exercised.
(3) In any case not provided for by the foregoing provisions of this section the jurisdiction of the Circuit Court or District Court under the Convention may be exercised by a circuit judge assigned to the Dublin circuit or a district judge assigned to the Dublin Metropolitan District.
(4) Sections 33(1), 33(2) and 45 (which provisions relate to the conduct of family proceedings) of the Judicial Separation and Family Law Reform Act, 1989 , shall apply and have effect in relation to an application under subsection (1)(b).
Interpretation of Convention.
5. —(1) Judicial notice shall be taken of relevant judgments of courts of other contracting states concerning provisions of the Convention and a court shall, when applying and interpreting its provisions, pay due account to the principles laid down by those judgments.
(2) Judicial notice shall also be taken of the report by Professor Paul Lagarde on the Convention, a copy of which has been placed in the Oireachtas Library, and that report may be considered by any court when interpreting any provision of the Convention and shall be given such weight as is appropriate in the circumstances.
Provision of certain court documents.
6. —As respects a measure taken by a court in the State, the registrar or clerk of the court shall, at the request of a person who wishes to make an application under the Convention in another contracting state and subject to any conditions that may be specified by rules of court, give to the person all or any of the following documents:
(a) a copy of the measure duly authenticated,
(b) a certificate signed by the registrar or clerk of the court stating—
(i) the nature of the proceedings,
(ii) the Article of the Convention by virtue of which the Court assumed jurisdiction,
(iii) the date on which the time for lodging an appeal against the measure will expire or, if it has expired, the date on which it expired,
(iv) whether notice of appeal against the measure, or (in case the measure was taken in default of appearance) a notice to set it aside, has been entered,
(v) whether the measure was taken in a case of urgency,
(vi) if the measure was not so taken, that the court has taken such account of the wishes of the child concerned as it thought appropriate and practicable having regard to the child's age and understanding, and
(vii) such other particulars (if any) as may be specified by rules of court,
(c) in case the measure (other than a measure taken on an application made ex parte) was taken in default of appearance, the original or a copy, certified by the registrar or clerk of the court to be a true copy, of a document establishing that notice of the institution of the proceedings was served on the person in default.
Evidence in proceedings.
7. —(1) Any document purporting to be a document forwarded or delivered under the Convention may be admitted as evidence that it is such a document and as evidence of any matter to which it relates, subject to such authentication, if any, as the court may require.
(2) A document purporting to be—
(a) a translation of a document mentioned in subsection (1), and
(b) certified as correct by a person competent to do so,
may be admitted as evidence of the translation.
(3) (a) Where a document is admissible in evidence by virtue of subsection (1) or (2), it may be given in evidence, whether or not the document is still in existence, by producing a copy of the document, or of the material part of it, authenticated in such manner as the court may approve.
(b) For the purposes of paragraph (a) the copy produced may be at more than one remove from the original, and that copy and any intermediate copy may have been made by any means, including facsimile transmission.
(4) Without prejudice to subsections (1) and (3)(a), a document purporting to be a copy of a measure taken by a competent authority of another contracting state shall, for the purposes of this Act, be regarded as being duly authenticated if it purports—
(a) to bear the seal of the authority, or
(b) to be certified by a person in his or her capacity as a judge or officer of the authority to be a true copy of a measure taken by it.
Letters of request.
8. —A court may, either directly or with the assistance of the Central Authority, address letters of request for the purposes of Article 8 or 9 to the appropriate authority in another contracting state.
9. —(1) The Minister may by order appoint a Central Authority (“the Central Authority”) to perform in the State the functions conferred on it by this Act or by virtue of the Convention.
(2) Pending the appointment of the Central Authority the Minister shall perform its functions, and references in this Act to the Central Authority shall be construed accordingly.
(3) The Minister may by order amend or revoke an order made under this section (including an order under this subsection).
Provision of reports.
10. —The Central Authority, if requested pursuant to Article 31, 32 or 34 to provide information relating to a child, may, without prejudice to the generality of the powers conferred on it by this Act, request—
(a) a probation and welfare officer to make a report to it in writing with respect to any matter relating to the child which appears to it to be relevant,
(b) a health board to arrange for a suitably qualified person to make such a report to it,
(c) the registrar or clerk of any court to which a written report relating to the child has been made to send it a copy of the report, or
(d) any holder of a public office or body financed wholly or partly by means of moneys provided by the Oireachtas to provide it with any information in the possession or procurement of the holder or body which would assist in discovering the whereabouts of the child,
and any such request shall be duly complied with.
Rules of court.
11. —Rules of court may make provision for the expeditious hearing of proceedings under the Convention.
12. —Nothing in this Act shall affect—
(a) the application in the State, subject to section 17 , of the Child Abduction and Enforcement of Custody Orders Act, 1991 , or
(b) any jurisdiction—
(i) apart from that provided for in Articles 11 and 12, of a court to take measures directed to the protection of the person or property of a child who is not habitually resident in a contracting state, or
(ii) of a court to order the recognition, enforcement or non-recognition of measures which are directed to the protection of the person or property of a child and which have been taken by the authorities of a non-contracting state.
13. —Nothing in this Act shall affect any proceedings which were instituted before the commencement of any relevant provision of this Act and relate to measures within the scope of the Convention.
14. —The Minister may make regulations for the purpose of giving effect to this Act.
Orders evidencing entry into force of Convention, etc.
15. —(1) The Minister for Foreign Affairs may by order—
(i) that in accordance with Article 61.1 the Convention entered or will enter into force for the specified states concerned on a specified date,
(ii) that in accordance with Article 61.2 the Convention entered or will enter into force for a specified state or territorial unit on a specified date,
(iii) that pursuant to Article 58.3 an objection has been raised by a specified contracting state to the accession of a specified state to the Convention,
(iv) that pursuant to Article 59.1 a declaration has been made by a specified contracting state that the Convention shall extend to all its territorial units or only to one or more than one of them to be specified,
(v) that pursuant to Article 62.1 a specified contracting state has denounced the Convention and that the denunciation took effect, or will take effect, on a specified date,
(vi) (I) pursuant to paragraph 2 of Article 34, that request under paragraph 1 of that Article to any authority in the State which has information relevant to the protection of a child shall be communicated to that authority only through the Central Authority,
(II) that pursuant to the said paragraph 2 a declaration has been made by another specified contracting state that requests under the said paragraph 1 to an authority in that contracting state shall be communicated only through its central authority,
(vii) that pursuant to Article 39 an agreement (the text or a translation of which shall be set out in the order) has been entered into between specified contracting states,
(viii) (I) that pursuant to Article 54.2 or 55 a reservation (the text or a translation of which shall be set out in the order) has been made by a specified contracting state,
(II) that pursuant to Article 60.2 a reservation so made has been withdrawn and that it ceased, or will cease, to have effect on a specified date,
(i) pursuant to paragraph 3 of Article 40 the persons or bodies competent to draw up the certificate mentioned in paragraph 1 of that Article,
(ii) pursuant to Article 44 the authorities within the State to which requests under Article 8, 9 or 33 should be addressed.
(2) An order that is in force under subsection (1) shall be evidence of the matters stated therein.
(3) The Minister for Foreign Affairs may be order amend or revoke an order under this section (including an order under this subsection).
Laying of regulations and orders before Houses of Oireachtas.
16. —Every regulation and order under this Act (except an order under section 19 (2)) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation or order is passed by either such House within the next subsequent 21 days on which that House has sat after the regulation or order is laid before it, the regulation or order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
Amendment of Child Abduction and Enforcement of Custody Orders Act, 1991.
17. —The Child Abduction and Enforcement of Custody Orders Act, 1991 , is hereby amended by the insertion after section 36 of the following section:
18. —The expenses incurred in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.
Short title, commencement, construction and collective citation.
19. —(1) This Act may be cited as the Protection of Children (Hague Convention) Act, 2000 .
(2) This Act shall come into operation on such day or days as the Minister shall appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes and different provisions.
(3) The Courts (Supplemental Provisions) Acts, 1961 to 2000, and sections 1, 3, 4, 6, 8, 11 and 12 may be cited together as the Courts (Supplemental Provisions) Acts, 1961 to 2000, and shall be construed together as one.