The Family Procedure Rules 2010

CHAPTER 6E+WPROCEEDINGS UNDER THE 1980 HAGUE CONVENTION, THE EUROPEAN CONVENTION, F1... AND THE 1996 HAGUE CONVENTION

ScopeE+W

12.43.  This Chapter applies to —

(a)[F2children proceedings] under the 1980 Hague Convention or the European Convention; and

(b)applications relating to F3... the 1996 Hague Convention in respect of children.

SECTION 1E+WProceedings under the 1980 Hague Convention or the European Convention

InterpretationE+W

12.44.  In this section—

“the 1985 Act” means the Child Abduction and Custody Act 1985;

“Central Authority” means, in relation to England and Wales, the Lord Chancellor;

“Contracting State” has the meaning given in—

“decision relating to custody” has the same meaning as in the European Convention.

(“the 1980 Hague Convention” and the “the European Convention” are defined in rule 2.3)

Where to start proceedingsE+W

12.45.  Every application under the 1980 Hague Convention or the European Convention must be—

(a)made in the High Court and issued in the principal registry; and

(b)heard by a Judge of the High Court unless the application is;

(i)to join a respondent; or

(ii)to dispense with service or extend the time for acknowledging service.

Evidence in support of applicationE+W

12.46.  Where the party making an application under this section does not produce the documents referred to in Practice Direction 12F, the court may—

(a)fix a time within which the documents are to be produced;

(b)accept equivalent documents; or

(c)dispense with production of the documents if the court considers it has sufficient information.

Without-notice applicationsE+W

12.47.—(1) This rule applies to applications—

(a)commencing or in proceedings under this section;

(b)for interim directions under section 5 or 19 of the 1985 Act M1;

(c)for the disclosure of information about the child and for safeguarding the child's welfare, under rule 12.57;

(d)for the disclosure of relevant information as to where the child is, under section 24A of the 1985 Act M2; or

(e)for a collection order, location order or passport order.

(2) Applications under this rule may be made without notice, in which case the applicant must file the application—

(a)where the application is made by telephone, the next business day after the making of the application; or

(b)in any other case, at the time when the application is made.

(3) Where an order is made without notice, the applicant must serve a copy of the order on the other parties as soon as practicable after the making of the order, unless the court otherwise directs.

(4) Where the court refuses to make an order on an application without notice, it may direct that the application is made on notice.

(5) Where any hearing takes place outside the hours during which the court office is usually open—

(a)if the hearing takes place by telephone, the applicant's solicitors will, if practicable, arrange for the hearing to be recorded; and

(b)in all other cases, the court or court officer will take a note of the proceedings.

(Practice Direction 12E (Urgent Business) provides further details of the procedure for out of hours applications. See also Practice Direction 12D (Inherent Jurisdiction (including Wardship Proceedings)).)

DirectionsE+W

12.48.—(1) As soon as practicable after an application to which this section applies has been made, the court may give directions as to the following matters, among others—

(a)whether service of the application may be dispensed with;

(b)whether the proceedings should be transferred to another court under rule 12.54;

(c)expedition of the proceedings or any part of the proceedings (and any direction for expedition may specify a date by which the court must issue its final judgment in the proceedings or a specified part of the proceedings);

(d)the steps to be taken in the proceedings and the time by which each step is to be taken;

(e)whether the child or any other person should be made a party to the proceedings;

(f)if the child is not made a party to the proceedings, the manner in which the child's wishes and feelings are to be ascertained, having regard to the child's age and maturity and in particular whether an officer of the Service or a Welsh family proceedings officer should report to the court for that purpose;

(g)where the child is made a party to the proceedings, the appointment of a children's guardian for that child unless a children's guardian has already been appointed;

(h)the attendance of the child or any other person before the court;

(i)the appointment of a litigation friend for a child or for any protected party, unless a litigation friend has already been appointed;

(j)the service of documents;

(k)the filing of evidence including expert evidence; and

(l)whether the parties and their representatives should meet at any stage of the proceedings and the purpose of such a meeting.

(Rule 16.2 provides for when the court may make the child a party to the proceedings and rule 16.4 for the appointment of a children's guardian for the child who is made a party. Rule 16.5 (without prejudice to rule 16.6) requires a child who is a party to the proceedings but not the subject of those proceedings to have a litigation friend.)

(2) Directions of a court which are in force immediately prior to the transfer of proceedings to another court under rule 12.54 will continue to apply following the transfer subject to—

(a)any changes of terminology which are required to apply those directions to the court to which the proceedings are transferred; and

(b)any variation or revocation of the directions.

(3) The court or court officer will—

(a)take a note of the giving, variation or revocation of directions under this rule; and

(b)as soon as practicable serve a copy of the directions order on every party.

AnswerE+W

12.49.—(1) Subject to paragraph (2) and to any directions given under rule 12.48, a respondent must file and serve on the parties an answer to the application within 7 days beginning with the date on which the application is served.

(2) The court may direct a longer period for service where the respondent has been made a party solely on one of the following grounds—

(a)a decision relating to custody has been made in the respondent's favour; or

(b)the respondent appears to the court to have sufficient interest in the welfare of the child.

Filing and serving written evidenceE+W

12.50.—(1) The respondent to an application to which this section applies may file and serve with the answer a statement verified by a statement of truth, together with any further evidence on which the respondent intends to rely.

(2) The applicant may, within 7 days beginning with the date on which the respondent's evidence was served under paragraph (1), file and serve a statement in reply verified by a statement of truth, together with any further evidence on which the applicant intends to rely.

AdjournmentE+W

12.51.  The court will not adjourn the hearing of an application to which this section applies for more than 21 days at at any one time.

Stay of proceedings upon notification of wrongful removal etc.E+W

12.52.—(1) In this rule and in rule 12.53—

(a)“relevant authority” means —

(i)the High Court;

(ii)[F4the family court];

F5(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iv)the Court of Session;

(v)a sheriff court;

[F6(vi)a children’s hearing within the meaning of the Children’s Hearings (Scotland) Act 2011;]

(vii)the High Court in Northern Ireland;

(viii)a county court in Northern Ireland;

(ix)a court of summary jurisdiction in Northern Ireland;

(x)the Royal Court of Jersey;

(xi)a court of summary jurisdiction in Jersey;

(xii)the High Court of Justice of the Isle of Man;

(xiii)a court of summary jurisdiction in the Isle of Man; or

(xiv)the Secretary of State; and

(b)“rights of custody” has the same meaning as in the 1980 Hague Convention.

(2) Where a party to proceedings under the 1980 Hague Convention knows that an application relating to the merits of rights of custody is pending in or before a relevant authority, that party must file within the proceedings under the 1980 Hague Convention a concise statement of the nature of that application, including the relevant authority in or before which it is pending.

(3) On receipt of a statement filed in accordance with paragraph (2) above, a court officer will notify the relegant authority in or before which the application is pending and will subsequently notify the relevant authority of the result of the proceedings.

(4) On receipt by the relevant authority of a notification under paragraph (3) from the High Court or equivalent notification from the Court of Session, the High Court in Northern Ireland or the High Court of Justice of the Isle of Man—

(a)all further proceedings in the action will be stayed^(GL) unless and until the proceedings under the 1980 Hague Convention in the High Court, Court of Session, the High Court in Northern Ireland or the High Court of Justice of the Isle of Man are dismissed; and

(b)the parties to the action will be notified by the court officer of the stay^(GL) and dismissal.

[F7Application to set aside a return order under the 1980 Hague ConventionE+W

12.52A.—(1) In this rule—

“return order” means an order for the return or non-return of a child made under the 1980 Hague Convention and includes a consent order;

“set aside” means to set aside a return order pursuant to section 17(2) of the Senior Courts Act 1981 and this rule.

(2) A party may apply under this rule to set aside a return order where no error of the court is alleged.

(3) An application under this rule must be made within the proceedings in which the return order was made.

(4) An application under this rule must be made in accordance with the Part 18 procedure, subject to the modifications contained in this rule.

(5) Where the court decides to set aside a return order, it shall give directions for a rehearing or make such other orders as may be appropriate to dispose of the application.

(6) This rule is without prejudice to any power the High Court has to vary, revoke, discharge or set aside other orders, declarations or judgments which are not specified in this rule and where no error of the court is alleged.]

Stay of proceedings where application made under s.16 of the 1985 Act (registration of decisions under the European Convention)E+W

12.53.—(1) A person who—

(a)is a party to—

(i)proceedings under section 16 of the 1985 Act; or

(ii)proceedings as a result of which a decision relating to custody has been registered under section 16 of the 1985 Act; and

(b)knows that an application is pending under—

(i)section 20(2) of the 1985 Act;

(ii)Article 21(2) of the Child Abduction and Custody (Jersey) Law 2005; or

(iii)section 42(2) of the Child Custody Act 1987 (an Act of Tynwald),

must file within the proceedings under section 16 of the 1985 Act a concise statement of the nature of the pending application.

(2) On receipt of a statement filed in accordance with paragraph (1) above, a court officer will notify the relevant authority in or before which the application is pending and will subsequently notify the relevant authority of the result of the proceedings.

(3) On receipt by the relevant authority of a notification under paragraph (2) from the High Court or equivalent notification from the Court of Session, the High Court in Northern Ireland or the High Court of Justice of the Isle of Man, the court officer will notify the parties to the action.

Transfer of proceedingsE+W

12.54.—(1) At any stage in proceedings under the 1985 Act the court may-

(a)of its own initiative; or

(b)on the application of a party with a minimum of two days' notice;

order that the proceedings be transferred to a court listed in paragraph (4).

(2) Where the court makes an order for transfer under paragraph (1)—

(a)the court will state its reasons on the face of the order;

(b)a court officer will send a copy of the order, the application and the accompanying documents (if any) and any evidence to the court to which the proceedings are transferred; and

(c)the costs of the proceedings both before and after the transfer will be at the discretion of the court to which the proceedings are transferred.

(3) Where proceedings are transferred to the High Court from a court listed in paragraph (4), a court officer will notify the parties of the transfer and the proceedings will continue as if they had been commenced in the High Court.

(4) The listed courts are the Court of Session, the High Court in Northern Ireland, the Royal Court of Jersey or the High Court of Justice of the Isle of Man.

Revocation and variation of registered decisionsE+W

12.55.—(1) This rule applies to decisions which—

(a)have been registered under section 16 of the 1985 Act; and

(b)are subsequently varied or revoked by an authority in the Contracting State in which they were made.

(2) The court will, on cancelling the registration of a decision which has been revoked, notify—

(a)the person appearing to the court to have care of the child;

(b)the person on whose behalf the application for registration of the decision was made; and

(c)any other party to the application.

(3) The court will, on being informed of the variation of a decision, notify—

(a)the party appearing to the court to have care of the child; and

(b)any party to the application for registration of the decision;

and any such person may apply to make representations to the court before the registration is varied.

(4) Any person appearing to the court to have an interest in the proceedings may apply for the registration of a decision for the cancellation or variation of the decision referred to in paragraph (1).

The central index of decisions registered under the 1985 ActE+W

12.56.  A central index of decisions registered under section 16 of the 1985 Act, together with any variation of those decisions made under section 17 of that Act, will be kept by the principal registry.

Disclosure of information in proceedings under the European ConventionE+W

12.57.  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^(GL) evidence.

SECTION 2E+WApplications relating to F8... the 1996 Hague Convention

InterpretationE+W

12.58.—(1) In this section —

F9...

“Contracting State” means a State party to the 1996 Hague Convention;

[F10“domestic Central Authority” means—

F12...

F13...

“parental responsibility” has the meaning given in —

F15...

(2) In rules 12.59 to 12.70, references to the court of another F16... Contracting State include F17...authorities of Contracting States which have jurisdiction to take measures directed to the protection of the person or property of the child within the meaning of the 1996 Hague Convention.

Procedure under Article 11(6) of the Council Regulation where the court makes a non-return order under Article 13 of the 1980 Hague ConventionE+W

F1812.59.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Procedure under Article 11(7) of the Council Regulation where the court receives a non-return order made under Article 13 of the 1980 Hague Convention by a court in another Member StateE+W

F1912.60.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Transfer of proceedings under F20... Article 8 of the 1996 Hague ConventionE+W

12.61.—(1) Where the court is considering the transfer of proceedings to the court of another F21... Contracting State under rules 12.62 to 12.64 it will—

(a)fix a date for a hearing for the court to consider the question of transfer; and

(b)give directions as to the manner in which the parties may make representations.

(2) The court may, with the consent of all parties, deal with the question of transfer without a hearing.

(3) Directions which are in force immediately prior to the transfer of proceedings to a court in another F22... Contracting State under rules 12.62 to 12.64 will continue to apply until the court in that other State accepts jurisdiction in accordance with the provisions of F23... the 1996 Hague Convention F24..., subject to any variation or revocation of the directions.

(4) The court or court officer will—

(a)take a note of the giving, variation or revocation of directions under this rule; and

(b)as soon as practicable serve a copy of the directions order on every party.

(5) A register of all applications and requests for transfer of jurisdiction to or from another F25... Contracting State will be kept by the principal registry.

Application by a party for transfer of the proceedingsE+W

12.62.—(1) A party may apply to the court F26...under Article 8(1) of the 1996 Hague Convention —

(a)to stay^(GL) the proceedings or a specified part of the proceedings and to invite the parties to introduce a request before a court of another F27... Contracting State; or

(b)to make a request to a court of F28... another Contracting State to assume jurisdiction for the proceedings, or a specified part of the proceedings.

(2) An application under paragraph (1) must be made—

(a)to the court in which the relevant parental responsibility proceedings are pending; and

(b)using the Part 18 procedure.

(3) The applicant must file the application notice and serve it on the respondents [F29not less than 42 days before the hearing of the application].

Application by a court of F30... another Contracting State for transfer of the proceedingsE+W

12.63.—(1) This rule applies where a court of F31... another Contracting State makes an application under F32... Article 9 of the 1996 Hague Convention that the court having jurisdiction in relation to the proceedings transfer the proceedings or a specific part of the proceedings to the applicant court.

(2) When the court receives the application, the court officer will—

(a)as soon as practicable, notify the [F33domestic Central Authority] of the application; and

(b)serve the application, and notice of the hearing on all other parties in England and Wales not less than 5 days before the hearing of the application.

Exercise by the court of its own initiative of powers to seek to transfer the proceedingsE+W

12.64.—(1) The court having jurisdiction in relation to the proceedings may exercise its powers of its own initiative under F34... Article 8 of the 1996 Hague Convention in relation to the proceedings or a specified part of the proceedings.

(2) Where the court proposes to exercise its powers, the court officer will give the parties not less than 5 days' notice of the hearing.

Application to High Court to make request under F35... Article 9 of the 1996 Hague Convention to request transfer of jurisdictionE+W

12.65.—(1) An application for the court to request transfer of jurisdiction in a matter concerning a child from F36... another Contracting State under F37... Article 9 of the 1996 Hague Convention F38... must be made to the principal registry and heard in the High Court.

(2) An application must be made without notice to any other person and the court may give directions about joining any other party to the application.

(3) Where there is agreement between the court and the court or competent authority to which the request under paragraph (1) is made to transfer the matter to the courts of England and Wales, the court will consider with that other court or competent authority the specific timing and conditions for the transfer.

(4) Upon receipt of agreement to transfer jurisdiction from the court or other competent authority in the F39... Contracting State to which the request has been made, the court officer will serve on the applicant a notice that jurisdiction has been accepted by the courts of England and Wales.

(5) The applicant must attach the notice referred to in paragraph (3) to any subsequent application in relation to the child.

(6) Nothing in this rule requires an application with respect to a child commenced following a transfer of jurisdiction to be made to or heard in the High Court.

(7) Upon allocation, the court to which the proceedings are allocated must immediately fix a directions hearing to consider the future conduct of the case.

Procedure where the court receives a request from the authorities of another F40... Contracting State to assume jurisdiction in a matter concerning a childE+W

12.66.—(1) Where any court other than the High Court receives a request to assume jurisdiction in a matter concerning a child from a court or other authority which has jurisdiction in another F41...Contracting State, that court must immediately refer the request to a Judge of the High Court for a decision regarding acceptance of jurisdiction to be made.

(2) Upon the High Court agreeing to the request under paragraph (1), the court officer will notify the parties to the proceedings before the other F42... Contracting State of that decision, and the case must be allocated as if the application had been made in England and Wales.

(3) Upon allocation, the court to which the proceedings are allocated must immediately fix a directions hearing to consider the future conduct of the case.

(4) The court officer will serve notice of the directions hearing on all parties to the proceedings in the other F43... Contracting State no later than 5 days before the date of that hearing.

Service of the court's order or request relating to transfer of jurisdiction under F44...the 1996 Hague ConventionE+W

12.67.  The court officer will serve an order or request relating to transfer of jurisdiction on all parties, the Central Authority of the other F45... Contracting State, and the [F46domestic Central Authority].

Questions as to the court's jurisdiction or whether the proceedings should be stayedE+W

12.68.—(1) If at any time after issue of the application it appears to the court that under F47... Article 13 of the 1996 Hague Convention it is or may be required to stay^(GL) the proceedings or to decline jurisdiction, the court must—

(a)stay^(GL) the proceedings; and

(b)fix a date for a hearing to determine jurisdiction or whether there should be a stay^(GL) or other order.

(2) The court officer will serve notice of the hearing referred to at paragraph (1)(b) on the parties to the proceedings.

(3) The court must, in writing—

(a)give reasons for its decision under paragraph (1); and

(b)where it makes a finding of fact, state such finding.

(4) The court may with the consent of all the parties deal with any question as to the jurisdiction of the court, or as to whether the proceedings should be stayed^(GL), without a hearing.

Request for consultation as to contemplated placement of child in England and WalesE+W

12.69.—(1) This rule applies to a request made —

F48(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)under Article 33 of the 1996 Hague Convention by a court in another Contracting State

for consultation on or consent to the contemplated placement of a child in England and Wales.

(2) Where the court receives a request directly from a court in another F49... Contracting State, the court shall, as soon as practicable after receipt of the request, notify the [F50domestic Central Authority] of the request and take the appropriate action under paragraph (4).

(3) Where it appears to the court officer that no proceedings relating to the child are pending before a court in England and Wales, the court officer must inform the [F50domestic Central Authority] of that fact and forward to the Central Authority all documents relating to the request sent by the court in the other F51... Contracting State.

(4) Where the court receives a request forwarded by the [F50domestic Central Authority], the court must, as soon as practicable after receipt of the request, either—

(a)where proceedings relating to the child are pending before the court, fix a directions hearing; or

(b)where proceedings relating to the child are pending before another court in England and Wales, send a copy of the request to that court.

Request made by court in England and Wales for consultation as to contemplated placement of child in another F52... Contracting StateE+W

12.70.—(1) This rule applies where the court is contemplating the placement of a child in another F53... Contracting State under Article 33 of the 1996 Hague Convention, and proposes to send a request for consultation with or for the consent of the central authority or other authority having jurisdiction in the other State in relation to the contemplated placement.

(2) In this rule, a reference to “the request” includes a reference to a report prepared for purposes of Article 33 of the 1996 Hague Convention where the request is made under that Convention.

(3) Where the court sends the request directly to the central authority or other authority having jurisdiction in the other State, it shall at the same time send a copy of the request to the [F54domestic Central Authority].

(4) The court may send the request to the [F54domestic Central Authority] for onward transmission to the central authority or other authority having jurisdiction in the other F55... State.

(5) The court should give consideration to the documents which should accompany the request. (See Chapters 1 to 3 of this Part generally, for the procedure governing applications for an order under paragraph 19(1) of Schedule 2 to the 1989 Act permitting a local authority to arrange for any child in its care to live outside England and Wales.) (Part 14 sets out the procedure governing applications for an order under section 84 (giving parental responsibility prior to adoption abroad) of the Adoption and Children Act 2002.)

Application for a declaration as to the extent, or existence, of parental responsibility in relation to a child under Article 16 of the 1996 Hague ConventionE+W

12.71.—(1) Any interested person may apply for a declaration —

(a)that a person has, or does not have, parental responsibility for a child; or

(b)as to the extent of a person's parental responsibility for a child,

where the question arises by virtue of the application of Article 16 of the 1996 Hague Convention.

(2) An application for a declaration as to the extent, or existence of a person's parental responsibility for a child by virtue of Article 16 of the 1996 Hague Convention must be made in the principal registry and heard in the High Court.

(3) An application for a declaration referred to in paragraph (1) may not be made where the question raised is otherwise capable of resolution in any other family proceedings in respect of the child.