Child Abduction and
Custody Rules 2005
1 Interpretation[1]
In these Rules –
“appropriate court” means –
(a) in
relation to England and Wales, the High Court of Justice in England and Wales;
(b) in
relation to Scotland, the Court of Session;
(c) in
relation to Northern Ireland, His Majesty’s High Court of Justice in
Northern Ireland;
“British jurisdiction” means England and Wales, Scotland
or Northern Ireland;
“Greffier” means Judicial Greffier;
“Law” means the Child Abduction and Custody (Jersey)
Law 2005.
2 Mode
of application
(1) Except as otherwise
provided by these Rules, every application under the Hague Convention and the
European Convention must be made by representation.
(2) An application in
custody proceedings for a declaration under Article 24(2) of the Law must
be made by summons in those proceedings.
3 Contents
of representation
(1) The representation by
which any application is made under the Hague Convention or the European
Convention must state –
(a) the
name and date of birth of the child in respect of whom the application is made;
(b) the
names of the child’s parents or guardians;
(c) the
whereabouts or suspected whereabouts of the child;
(d) the
interest of the plaintiff in the matter and the grounds of the application; and
(e) particulars
of any proceedings (including proceedings outside the Jersey) relating to the
child,
and must be accompanied by all relevant documents including (but not
limited to) the documents specified in Article 8 of the Hague Convention
or, as the case may be, Article 13 of the European Convention.
(2) In applications under
the Hague Convention, in addition to the matters specified in paragraph (1) –
(a) the
representation by which an application is made for the purposes of Article 8
of that Convention for the return of a child must state the identity of the
person alleged to have removed or retained the child and, if different, the
identity of the person with whom the child is presumed to be;
(b) the
representation by which an application is made for the purposes of Article 15
that Convention must identify the proceedings in which the request that such a
declaration be obtained was made.
(3) In applications under
the European Convention, in addition to the matters specified in paragraph (1),
the representation must identify the decision relating to custody or rights of
access which is sought to be registered or enforced or in relation to which a
declaration that it is not to be recognized is sought.
4 Service
of representation
The Court shall, subject to Rule 8, order that the representation
referred to in Rule 3 be served personally on –
(a) the person alleged to
have brought into Jersey the child in respect of whom an application under the
Hague Convention is made;
(b) the person with whom
the child is alleged to be;
(c) any parent or guardian
of the child who is in Jersey and is not otherwise a party;
(d) the person in whose
favour a decision relating to custody has been made if that person is not
otherwise a party; and
(e) any other person who
appears to the Court to have a sufficient interest in the welfare of the child.
5 The
return date
(1) The return date in
respect of a representation ordered to be served in accordance with Rule 4
shall be not more than 21 days from the date of the order.
(2) A representation by
which an application is made by an application is made under the Hague
Convention or the European Convention shall not be placed on the pending list.
6 Evidence
(1) A representation by
which an application is made under the Hague Convention or the European
Convention may be accompanied by affidavit evidence in support of the
application.
(2) A person on whom such a
representation has been served may lodge affidavit evidence with the Court and
serve a copy on the representor within 7 days after service of the
representation on that person.
(3) The representor may
within 7 days thereafter lodge with the Court a statement in reply and serve a
copy on the person referred to in paragraph (2).
7 Hearing
Any application under the Law may be dealt with by the Bailiff in
chambers and references in these Rules to “the Court” shall be
construed accordingly.
8 Dispensing
with service[2]
The Court, a Family Judge or the Greffier
may dispense with service of a representation or of any summons in any
proceedings under the Law.
9 Adjournment
of proceedings
The hearing in relation to a representation by which an application
under the Hague Convention or the European Convention is made may be adjourned
for a period not exceeding 21 days at any one time.
10 Stay
of proceedings
(1) A party to proceedings
under the Hague Convention must, where that party knows that an application
relating to the merits of rights of custody is pending in or before a relevant
authority, file with the Greffier a concise statement
of the nature of the application which is pending,
including the authority before which it is pending.
(2) A party to –
(a) pending
proceedings under Article 17 of the Law or under section 16 of the Child
Abduction and Custody Act 1985 of the United Kingdom; or
(b) proceedings
as a result of which a decision relating to custody has been registered under
Article 17 or section 16 (as the case may be),
must, where that party knows that such an application as is
specified in Article 21(2) of the Law, or in section 20(2) of that
Act, is pending in or before a relevant authority, file a concise statement of
the nature of the application which is pending.
(3) The Greffier
shall, on receipt of such a statement as is mentioned in paragraph (1) or
(2), notify the relevant authority in which or before whom the application is
pending and shall subsequently notify the authority of the result of the
proceedings.
(4) On the Greffier receiving notification equivalent to that
mentioned in paragraph (3) from the appropriate court in any British
jurisdiction –
(a) where
the application relates to the merits of rights of custody, all further proceedings
in the action shall be stayed unless and until the proceedings under the Hague
Convention in the court in the British jurisdiction are dismissed, and the Greffier must notify the parties to the action of the stay
and of any such dismissal accordingly; and
(b) where
the application is such a one as is specified in Article 21(2) of the Law,
or section 20(2) of the Child Abduction and Custody Act 1985 of the
United Kingdom, the Greffier shall notify the parties
to the action.
(5) In this Rule
“relevant authority” includes –
(a) the
High Court, a county court and a magistrates’
court in England and Wales;
(b) the
Court of Session, a sheriff court and a children’s hearing in Scotland;
(c) the
High Court, a county court and a court of summary
jurisdiction in Northern Ireland; and
(d) the
Secretary of State.
11 Transfer
of proceedings
(1) At any stage in any
proceedings under the Law the Court may, of its own motion or on the
application by summons of any party to the proceedings issued on 2 days’
notice, order that the proceedings be transferred to the appropriate court in
any British jurisdiction.
(2) Where an order is made
under paragraph (1), the Greffier shall send a
copy of the order, which must state the grounds therefor, together with the
originating summons, the documents accompanying it and any evidence, to the
appropriate court in the relevant British jurisdiction.
(3) Where proceedings are
transferred to the appropriate court in any British jurisdiction, the costs of
the whole proceedings both before and after the transfer shall be in the
discretion of the court to which the proceedings are transferred.
(4) Where proceedings are
transferred to the Royal Court from the appropriate court in any British jurisdiction,
the Greffier shall notify the parties of the transfer
and the proceedings shall continue as if they had been begun by representation
under Rule 2.
(5) In paragraph (1)
“the Court” includes the Greffier.
12 Interim
directions
(1) An application for interim
directions under Article 7 or Article 20 of the Law may be made to
the Court ex parte,
but must be supported by affidavit.
(2) If the Court refuses to
make an order on an ex parte
application, it may direct that the application be made inter partes by summons.
13 Obtaining
authenticated copies of decisions
Any person who intends to make an application under the Hague
Convention in a Contracting State other than the United Kingdom shall, on
satisfying the Greffier as to that intention, be
entitled to obtain an office copy sealed with the official seal of the Court of
any order made by the Court relating to the child in respect of whom the
application is made.
14 Revocation
and variation of registered decisions
(1) This Rule applies to
decisions which have been registered under Article 17 of the Law and are
subsequently varied or revoked by an authority in the Contracting State in
which they were made.
(2) When the Court cancels
the registration of a decision which has been revoked, the Greffier
shall notify the following of the cancellation –
(a) the
person appearing to the Court to have actual custody of the child;
(b) the
person on whose behalf the application for registration of the decision was
made; and
(c) any
other party to that application.
(3) Where the Court is
notified of the variation of a decision, the Greffier
shall notify the following of the variation –
(a) the
person appearing to the Court to have actual custody of the child; and
(b) any
party to the application for registration of the decision,
and any such person may apply by summons in the proceedings for the
registration of the decision, for the purpose of making representations to the
Court before the registration is varied.
(4) Any person appearing to
the Court to have an interest in the matter may apply by summons in the
proceedings for the registration of a decision for the cancellation or
variation of the registration,
(5) In this Rule “the
Court” includes the Greffier.
15 Orders
for disclosure of information
At any stage in proceedings under the European Convention the Court
may, if it has reason to believe that any person may have relevant information
about the child who is the subject of those proceedings, order that person to
disclose such information and may for that purpose order that the person attend
before it or file affidavit evidence.
16 Citation
These Rules may be cited as the Child Abduction and Custody
Rules 2005.