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6 1991

CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991

PART III

The Luxembourg Convention

Interpretation of Part III .

17. —In this Part—

Contracting State” means a state in respect of which the Luxembourg Convention is in force in accordance with the provisions of that Convention and shall be construed so that this Part shall have effect in relation to the places as respects which that Convention has effect by virtue of Articles 24 and 25 of that Convention;

decision relating to custody” has the meaning given to it in Article 1 of the Luxembourg Convention;

enforcement order” means an order of the Court for the recognition or enforcement of a decision relating to custody to which either Article 7 or 12 of the Luxembourg Convention applies.

Contracting States and declarations, reservations, withdrawals, notifications and denunciations under Luxembourg Convention.

18. —(1) The Minister for Foreign Affairs may by order declare—

(a) that any state specified in the order is a Contracting State, or

(b) that—

(i) a reservation, or a withdrawal thereof (the text of which shall be set out in the order) has been made pursuant to Article 6.3, 17, 18 or (in the case of a withdrawal) 27 of the Luxembourg Convention, or

(ii) a declaration (the text of which shall be set out in the order) has been made pursuant to Article 24 or 25 of that Convention, or

(iii) a notification (the text of which shall be set out in the order) has been received pursuant to Article 2 of that Convention, or

(iv) a notification of a decision or of an alteration or revocation of a decision (the text of which shall be set out in the order) has been made pursuant to Article 20 of that Convention, or

(v) a denunciation (the text of which shall be set out in the order) has been made pursuant to Article 29 of that Convention,

to or by, as the case may be, the Secretary General of the Council of Europe.

(2) An order that is in force under subsection (1) of this section shall, as the case may be, be evidence—

(a) that any state specified in the order is a Contracting State;

(b) that a reservation, a withdrawal of a reservation, a declaration, a notification or a denunciation set out in the order was made or received and of its contents.

(3) The Minister for Foreign Affairs may by order amend or revoke an order under this section (including an order under this subsection).

Evidence of decisions and declarations of authorities of Contracting States and other matters relating to Luxembourg Convention.

19. —(1) For the purposes of the Luxembourg Convention—

(a) a document, duly authenticated, which purports to be a copy of a decision or declaration relating to custody of a judicial or administrative authority of a Contracting State other than the State shall without further proof be deemed to be a true copy of the decision or declaration, unless the contrary is shown; and

(b) the original or a copy of any other document as is mentioned in Article 13 of the Luxembourg Convention shall be admissible—

(i) insofar as it consists of a statement of fact, as evidence of that fact, and

(ii) insofar as it consists of a statement of opinion, as evidence of that opinion.

(2) A document which—

(a) purports to be a translation of a decision or declaration of a judicial or administrative authority of a Contracting State other than the State or any other document mentioned in Article 13 of the Luxembourg Convention, and

(b) is certified as correct by a person competent to do so,

shall be admissible as evidence of the translation.

(3) A document purporting to be a copy of a decision or declaration relating to custody made by a judicial or administrative authority of a Contracting State shall, for the purposes of this Part, be regarded as being duly authenticated if it purports—

(a) to bear the seal of that authority, or

(b) to be certified by a person in his capacity as a judge or officer of that authority to be a true copy of a decision or declaration of that authority.

Application of this Part.

20. —This Part applies to any decision relating to custody (by whatever name called) that is a decision relating to custody for the purposes of the Luxembourg Convention.

Luxembourg Convention to have the force of law.

21. —(1) Subject to the provisions of this Part (including the restrictions on recognition and enforcement of a decision relating to custody contained in section 28 of this Act), the Luxembourg Convention shall have the force of law in the State and judicial notice shall be taken of it.

(2) The text of the Luxembourg Convention in the English language is set out for convenience of reference in the Second Schedule to this Act.

Central Authority for purposes of Luxembourg Convention.

22. —(1) The Minister may by order appoint a Central Authority (referred to in this Part as the Central Authority in the State) to discharge the functions under the Luxembourg Convention of a Central Authority.

(2) Notwithstanding subsection (1) of this section, unless and until the Minister appoints a Central Authority under this section, the said functions shall be discharged by the Minister and references in this Part to the Central Authority in the State shall be construed, accordingly, as references to the Minister.

(3) The Minister may by order amend or revoke an order under this section (including an order under this subsection).

Jurisdiction of the Court for purposes of Part III .

23. —For the purposes of this Part and the Luxembourg Convention the Court shall have jurisdiction to hear and determine applications under that Convention for the recognition or enforcement of a decision relating to custody.

Applications for recognition and enforcement of custody decisions in the State.

24. —(1) Any application, in such form as may be prescribed, made by or on behalf of 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 State for the recognition or enforcement of the decision in the State may be addressed to the Central Authority in the State.

(2) Where the Central Authority in the State receives any such application and is satisfied that the application is an application to which the Luxembourg Convention applies, it shall take action or cause action to be taken under that Convention to secure the recognition or enforcement of the decision.

Applications in the first instance to the Court.

25. —Nothing in this Part shall prevent a person from applying in the first instance to the Court under the Luxembourg Convention for the recognition or enforcement of a decision relating to custody made by an authority in a Contracting State, other than the State.

Interim powers of the Court for the purposes of Part III .

26. —(1) Where an application has been made or is about to be made to the Court under the Luxembourg Convention for the recognition or enforcement of a decision relating to custody, the Court may of its own motion or on an application under this section, 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 preventing prejudice to interested persons or changes in the circumstances relevant to the determination of the application.

(2) An application for interim directions under this section may, where the case is one of urgency, be made ex parte.

Notice and stay of certain proceedings for purposes of Part III .

27. —(1) Any person who has an interest in proceedings in the Court under this Part for the recognition or enforcement of a decision relating to custody made by an authority in a Contracting State other than the State shall, where he knows that an application relating to custody of the child is pending in or before any court in the State and such proceedings were commenced before the proceedings in the Contracting State which resulted in the decision in respect of which recognition or enforcement is sought were instituted, give notice to the Court of those proceedings and the Court may stay all further proceedings in the application for recognition or enforcement until the other proceedings have been determined.

(2) Any person who has an interest in proceedings in the Court under this Part for the recognition or enforcement of a decision relating to custody made by an authority in a Contracting State other than the State shall, where he knows that an application relating to custody of the child is pending in or before any court in the State and such proceedings were commenced after the proceedings in the Contracting State which resulted in the decision in respect of which recognition or enforcement is sought were instituted, give notice to that court of the proceedings under the Luxembourg Convention and that court having notified the parties to the proceedings before it of that notice shall stay all further proceedings in the matter until the Court determines the application for recognition or enforcement. The court concerned shall notify the Court of the stay.

(3) For the purpose of this section an application relating to custody of a child shall be construed as including a reference to an application for—

(a) an order making, varying or discharging an order regarding the custody of, or the right of access to, a child under the Guardianship of Infants Act, 1964 ;

(b) an order made pursuant to Part II or IV of the Children Act, 1908, in relation to the care of a child.

Refusal of application for recognition or enforcement of custody decision in the State.

28. —(1) The Court shall refuse an application made under this Part for recognition or enforcement in the State of a decision relating to custody where—

(a) in relation to a decision to which Article 8 of the Luxembourg Convention applies, the Court is of opinion on any of the grounds specified in Article 10.1. a, b, c or d of that Convention that the decision should not be recognised or enforced in the State;

(b) in relation to a decision to which Article 9 or 10 of that Convention applies, the Court is of opinion on any of the grounds specified in the said Articles that the decision should not be recognised or enforced in the State;

(c) the Court is of opinion that the decision is not enforceable in the Contracting State where it was made and is not a decision to which Article 12 of the Convention applies.

(2) Where an application is made to the Court under this Part for recognition or enforcement in the State of a decision relating to custody and an application to the Court in respect of the child is pending under Part II of this Act the Court shall stay all further proceedings under this Part until the other proceedings have been determined.

(3) The references in Article 9.1.c of the Luxembourg Convention to the removal of the child are to his improper removal within the meaning of that Convention.

(4) For the purposes of this section a decision relating to custody includes a decision varying that decision.

Enforcement of custody decisions.

29. —A decision relating to custody in respect of which an enforcement order has been made shall be of the same force and effect and, as respects the enforcement of the decision, the Court shall have the same powers, and proceedings may be taken, as if the decision was a decision of the Court.

Reports for purposes of Part III .

30. —Where the Central Authority in the State is requested to make enquiries about a child under Article 15.1.b of the Luxembourg Convention the Central Authority may—

(a) request 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) request a health board to arrange for a suitably qualified person to make such a report to it;

(c) request any court to which a written report relating to the child has been made to send it a copy of the report,

and any such request shall be duly complied with.

Variation and revocation of custody decisions.

31. —(1) Where a decision relating to custody is varied or revoked by an authority in the Contracting State in which it was made, any person appearing to the Court to have an interest in the matter may make an application to the Court for an order for variation or revocation of the order of recognition or enforcement of that decision.

(2) Where an application is made under subsection (1) of this section for revocation of an order the Court shall, if it is satisfied that the decision (in respect of which the order of recognition or enforcement was made) has been revoked by an authority in the Contracting State in which it was made, discharge the order and the decision shall cease to be enforceable in the State.

(3) Where an application is made under subsection (1) of this section for variation of an order, the Court may, if it is satisfied that the decision has been varied by an authority in the Contracting State in which it was made and, subject to the grounds of refusal specified in section 28 (1) of this Act, make an order varying the order and a decision so varied shall be of the same force and effect, and as respects the enforcement of the decision so varied, the Court shall have the same powers and proceedings may be taken, as if the decision so varied was a decision of the Court.

(4) The Central Authority in the State shall assist the person referred to in subsection (1) of this section if a request for such assistance, in such form as may be prescribed, is made by him or on his behalf by the Central Authority of the Contracting State in question.

Applications for recognition and enforcement of custody decisions in another Contracting State.

32. —(1) A person on whom any rights are conferred by a decision relating to custody made by a court in the State or by an authority within the meaning of the Luxembourg Convention in another Contracting State may make an application, in such form as may be prescribed, to the Central Authority in the State under Article 4 of the Luxembourg Convention with a view to securing its recognition or enforcement in another Contracting State.

(2) Where the Central Authority in the State receives any such application and is satisfied that the application is an application to which Article 4 of the Luxembourg Convention applies it shall, on behalf of the applicant, take any action required to be taken by a Central Authority under that Convention.

Provision of certain documents by courts in the State for purposes of Luxembourg Convention.

33. —As respects a decision relating to custody made by a court in the State (including a declaration made by a court under section 34 of this Act), the registrar or clerk of the court shall, at the request of a person who wishes to make an application under the Luxembourg Convention in a Contracting State other than the State or at the request on his behalf of the Central Authority in the State and subject to any conditions that may be specified by rules of court, give to the person or the Central Authority, as the case may be, all or any of the documents referred to in Article 13.1.b, c and d of that Convention, that is to say—

(a) a copy of the decision duly authenticated;

(b) a certificate signed by the registrar or clerk of the court stating—

(i) the nature of the proceedings,

(ii) the date on which the time for the lodging of an appeal against the decision will expire or, if it has expired, the date on which it expired,

(iii) whether notice of appeal against, or, in any case where the defendant does not appear, a notice to set aside, the decision has been entered, and

(iv) such particulars (if any) as may be specified by rules of court,

and

(c) in case the decision was given 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 proceedings was served on the person in default.

Declaration by a court of unlawful removal of child.

34. —(1) Where a court in the State makes a decision relating to the custody of a child who has been removed from the State that court may also, on an application made by any person for the purposes of Article 12 of the Luxembourg Convention, make a declaration that the removal of the child from the State was unlawful if it is satisfied that the applicant has an interest in the matter and that the child has been taken from or sent or kept out of the State without the consent of any of the persons having the right to determine the child's place of residence under the law of the State.

(2) The Central Authority in the State shall take action or cause action to be taken to assist the person referred to in subsection (1) of this section in making an application under this section if a request for such assistance, in such form as may be prescribed, is made by him or on his behalf by the Central Authority of another Contracting State.