Protection of Children (Hague Convention) Act, 2000

Publication Date:January 01, 2000
 
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PROTECTION OF CHILDREN (HAGUE CONVENTION) ACT, 2000

2000 Number 37

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 Interpretation.

(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.

2 Convention to have force of law.

(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.

3 Application of Convention in the State.

(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,

or

(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.

4 Exercise of jurisdiction.

(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).

5 Interpretation of Convention.

(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...

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