The Child Abduction and Custody (Falkland Islands) Order 1996

• Citation: S.I. 1996/3156
• Sections: 33

Section 1

This Order may be cited as the Child Abduction and Custody (Falkland Islands) Order 1996, and shall come into force on 1 March 1997.

Section 1 The Hague Convention.

(1) In this Part of this Order “ the Convention ” means the Convention on the Civil Aspects of International Child Abduction which was signed at The Hague on 25th October 1980.

(2) Subject to the provisions of this Part of this Order, the provisions of that Convention set out in Schedule 1 to this Order shall have the force of law in the Falkland Islands.

Section 2

Sections 1 to 24A, inclusive, section 25(1) and (2), sections 26 and 27 of and Schedules 1 to 3, inclusive, to the Child Abduction and Custody Act 1985, modified as in the Schedule hereto, shall extend to the Falkland Islands.

Section 2 Contracting States.

(1) For the purposes of the Convention as it has effect under this Part of this Order the Contracting States shall be the United Kingdom and those for the time being specified by an Order in Council under section 2(2) of the United Kingdom Child Abduction and Custody Act 1985.

(2) An Order in Council under that section shall specify the date of the coming into force of the Convention as between the United Kingdom and any State specified in the Order. On the same date the Convention shall come into force as between the Falkland Islands and that State; and except where the Order otherwise provides, the Convention shall apply as between the Falkland Islands and that State only in relation to wrongful removals or retentions occurring on or after that date.

(3) Where the Convention applies, or applies only, to a particular territory or particular territories specified in a declaration made by a Contracting State under Article 39 or 40 of the Convention references to that State in sub-sections (1) and (2) above shall be construed as references to that territory or those territories.

Section 3

For the purpose of the Schedule hereto, the term “ Governor ” means the officer for the time being administering the Government of the Falkland Islands.

Section 3 Central Authority.

The functions under the Convention of a Central Authority shall be discharged by the Governor.

Section 4 Judicial authority.

The court having jurisdiction to entertain applications under the Convention shall be the Supreme Court of the Falkland Islands.

Section 5 Interim powers.

Where an application has been made to the Supreme Court under the Convention, the court may, 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 of preventing changes in the circumstances relevant to the determination of the application.

Section 6 Reports.

Where the Governor is requested to provide information relating to a child under Article 7(d) of the Convention he may—

(a) request any public officer he believes to be appropriate to make a report to him in writing with respect to any matter which appears to him to be relevant;

(b) request any court to which a written report relating to the child has been made to send him a copy of the report;

and such a request shall be duly complied with.

Section 7 Proof of documents and evidence.

(1) For the purposes of Article 14 of the Convention a decision or determination of a judicial or administrative authority outside the Falkland Islands may be proved by a duly authenticated copy of the decision or determination; and any document purporting to be such a copy shall be deemed to be a true copy unless the contrary is shown.

(2) For the purposes of sub-paragraph (1) above a copy is duly authenticated if it bears the seal, or is signed by a judge or officer, of the authority in question.

(3) For the purposes of Articles 14 and 30 of the Convention any such document as is mentioned in Article 8 of the Convention, or a certified copy of any such document, shall be sufficient evidence of anything stated in it.

Section 8 Declaration by the Supreme Court.

The Supreme Court may, on an application made for the purposes of Article 15 of the Convention by any person appearing to the court to have an interest in the matter, make a declaration that the removal of any child from, or his retention outside the Falkland Islands was wrongful within the meaning of Article 3 of the Convention.

Section 9 Suspension of Court’s powers in cases of wrongful removal.

The reference in Article 16 of the Convention to deciding on the merits of rights of custody shall be construed as a reference to—

(a) making, varying or revoking a custody Order, or a supervision order under section 17 of the Children Ordinance 1994; or

(b) registering or enforcing a decision under Part II of this Order.

Section 10 Suspension of Court’s powers in cases of wrongful removal.

(1) An authority having power to make rules of court may make such provision for giving effect to this Part of this Order as appears to that authority to be necessary or expedient.

(2) Without prejudice to the generality of subsection (1) above, rules of court may make provision—

(a) with respect to the procedure on applications for the return of a child and with respect to the documents and information to be furnished and the notices to be given in connection with any such application;

(b) for the giving of notices by or to a court for the purposes of the provisions of Article 16 of the Convention and paragraph 9 above and generally as respects proceedings to which those provisions apply;

(c) for enabling a person who wishes to make an application under the Convention in a Contracting State other than the Falkland Islands to obtain from any court in the Falkland Islands an authenticated copy of any decision of that court relating to the child to whom the application is to relate.

Section 11 Cost of applications.

The United Kingdom having made such a reservation as is mentioned in the third paragraph of Article 26 of the Convention, the costs mentioned in that paragraph shall not be borne by the Governor or any other authority in the Falkland Islands except so far as they fall to be so borne by virtue of the grant of legal aid or legal advice and assistance provided by funds appropriated from the Consolidated Fund of the Falkland Islands.

Section 12

(1) In this Part of this Order “ the Convention ” means the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children which was signed in Luxembourg on 20th May 1980.

(2) Subject to the provisions of this Part of this Order, the provisions of that Convention set out in Schedule 2 to this Order (which include Articles 9 and 10 as they have effect in consequence of a reservation made by the United Kingdom under Article 17) shall have the force of law in the Falkland Islands.

Section 13 Contracting States.

(1) For the purposes of the Convention as it has effect under this Part of this Order the Contracting States shall be the United Kingdom and those for the time being specified by an Order in Council under section 13(1) of the United Kingdom Child Abduction and Custody Act 1985.

(2) An Order in Council under that section shall specify the date of the coming into force of the Convention as between the United Kingdom and any State specified in the Order. On the same date the Convention shall come into force as between the Falkland Islands and that State.

(3) Where the Convention applies, or applies only, to a particular territory or particular territories specified by a Contracting State under Articles 24 or 25 of the Convention references to that State in sub-paragraph (1) and (2) above shall be construed as references to that territory or those territories.

Section 14 Central Authority.

The functions under the Convention of a Central Authority shall be discharged by the Governor.

Section 15 Recognition of decisions.

(1) Articles 7 and 12 of the Convention shall have effect in accordance with this paragraph.

(2) A decision to which either of those Articles applies which was made in a Contracting State other than the Falkland Islands shall be recognised in the Falkland Islands as if made by a court having jurisdiction to make it there but—

(a) the Supreme Court may, on the application of any person appearing to it to have an interest in the matter, declare on any of the grounds specified in Article 9 or 10 of the Convention that the decision is not to be recognised in the Falkland Islands; and

(b) the decision shall not be enforceable in the Falkland Islands unless registered in the appropriate court under paragraph 16 below.

(3) The references in Article 9(1)(c) of the Convention to the removal of the child are to his improper removal within the meaning of the Convention.

Section 16 Registration of decisions.

(1) 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 Falkland Islands may make an application for the registration of the decision in an appropriate court in the Falkland Islands.

(2) The Central Authority in the Falkland Islands shall assist such a person in making such an application if a request for such assistance is made by him or on his behalf by the Central Authority of the Contracting State in question.

(3) An application under sub-paragraph (1) above or a request under sub-paragraph (2) above shall be treated as a request for enforcement for the purposes of Articles 10 and 13 of the Convention.

(4) The Supreme Court shall refuse to register a decision if—

(a) the court is of the opinion that on any of the grounds specified in Article 9 or 10 of the Convention the decision should not be recognised in any part of the Falkland Islands;

(b) the court is of the 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; or

(c) an application in respect of the child under Part I of this Order is pending.

(5) In this paragraph “ decision relating to custody ” has the same meaning as in the Convention.

Section 17 Variation and revocation of registered decisions.

(1) Where a decision which has been registered under paragraph 16 above is varied or revoked by an authority in the Contracting State in which it was made, the person on whose behalf the application for registration of the decision was made shall notify the court in which the decision is registered of the variation or revocation.

(2) Where a court is notified under sub-paragraph (1) above of the revocation of a decision, it shall—

(a) cancel the registration, and

(b) notify such persons as may be prescribed by rules of court of the cancellation.

(3) Where a court is notified under sub-paragraph (1) above of the variation of a decision, it shall—

(a) notify such persons as may be prescribed by rules of court of the variation; and

(b) subject to any conditions which may be so prescribed, vary the registration.

(4) The court in which a decision is registered under paragraph 16 above may also, on the application of any person appearing to the court to have an interest in the matter, cancel or vary the registration if it is satisfied that the decision has been revoked or, as the case may be, varied by an authority in the Contracting State in which it was made.

Section 18 Enforcement of decisions.

Where a decision relating to custody has been registered under paragraph 16 above, the court in which it is registered shall have the same powers for the purpose of enforcing the decision as if it had been made by that court; and proceedings for or with respect to enforcement may be taken accordingly.

Section 19 Interim powers.

Where an application has been made to a court for the registration of a decision under paragraph 16 above or for the enforcement of such a decision, the court may, 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 of preventing changes in the circumstances relevant to the determination of the application or, in the case of an application for registration, to the determination of any subsequent application for the enforcement of the decision.

Section 20 Suspension of court’s powers.

(1) Where it appears to any court in which such proceedings as are mentioned in sub-paragraph (2) below are pending in respect of a child that—

(a) an application has been made for the registration of a decision in respect of the child under paragraph 16 above other than a decision mentioned in sub-paragraph (3) below) or that such a decision is registered; and

(b) the decision was made in proceedings commenced before the proceedings which are pending,

the powers of the court with respect to the child in those proceedings shall be restricted as mentioned in sub-paragraph (2) below unless, in the case of an applicant for registration, the application is refused.

(2) Where sub-paragraph (1) above applies the Court shall not in the case of custody proceeding, make, vary, or revoke any custody order, or a supervision order under section 17 of the Children Ordinance 1994.

(3) The decision referred to in sub-paragraph (1) above is a decision which is only a decision relating to custody within the meaning of paragraph 16 of this Order by virtue of being a decision relating to rights of access.

(4) Paragraph (b) of Article 10(2) of the Convention shall be construed as referring to custody proceedings within the meaning of this Order.

Section 21 Reports.

Where the Governor is requested to make enquiries about a child under Article 15(1)(b) of the Convention he may—

(a) request a probation officer to make a report to him in writing with respect to any matter relating to the child concerned which appears to him to be relevant;

(b) request any court to which a written report relating to the child has been made to send him a copy of the report;

and any such request shall be duly complied with.

Section 22 Proof of documents and evidence.

(1) In any proceedings under this Part of this Order a decision of an authority outside the Falkland Islands may be proved by a duly authenticated copy of the decision; and any document purporting to be such a copy shall be deemed to be a true copy unless the contrary is shown.

(2) For the purposes of sub-paragraph (1) above a copy is duly authenticated if it bears the seal, or is signed by a judge or officer, of the authority in question.

(3) In any proceedings under this Part of this Order any such document as is mentioned in Article 13 of the Convention, or a certified copy of any such document, shall be sufficient evidence of anything stated in it.

Section 23 Decisions of Falkland Islands courts.

(1) Where a person on whom any rights are conferred by a decision relating to custody made by a court in the Falkland Islands makes an application to the Governor under Article 4 of the Convention with a view to securing its recognition or enforcement in another Contracting State, the Governor may require the court which made the decision to furnish him with all or any of the documents referred to in Article 13(1)(b), (c) and (d) of the Convention.

(2) Where in any custody proceedings a court in the Falklands Islands makes a decision relating to a child who has been removed from the Falkland Islands, the court may also, on an application made by any person for the purposes of Article 12 of the Convention, declare the removal to have been 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 Falkland Islands without the consent of the person (or, if more than one, all the persons) having the right to determine the child’s place of residence under the law of the part of the Falkland Islands in which the child was habitually resident.

(3) In this section “ decision relating to custody ” has the same meaning as in the Convention.

Section 24 Rules of court.

(1) An authority having power to make rules of court may make such provision for giving effect to this Part of this Order as appears to that authority to be necessary or expedient.

(2) Without prejudice to the generality of subsection (1) above, rules of court may make provision—

(a) with respect to the procedure on applications to a court under any provision of this Part of this Order and with respect to the documents and information to be furnished and the notices to be given in connection with any such application;

(b) for the giving of directions requiring the disclosure of information about any child who is the subject of proceedings under this Part of this Order and for safeguarding its welfare.

Section 24A Power to order disclosure of child’s whereabouts

(1) Where—

(a) in proceedings for the return of a child under Part I of this Order; or

(b) on an application for the recognition, registration or enforcement of a decision in respect of a child under Part II of this Order,

there is not available to the court adequate information as to where the child is, the court may order any person who it has reason to believe may have relevant information to disclose it to the court.

(2) A person shall not be excused from complying with an order under subsection (1) above by reason that to do so may incriminate him or his spouse of an offence; but a statement or admission made in compliance with such an order shall not be admissible in evidence against either of them in proceedings for any offence other than perjury.

Section 25 Termination of existing custody orders etc.

(1) Where—

(a) an order is made for the return of a child under Part I of this Order; or

(b) a decision with respect to a child (other than a decision mentioned in sub-paragraph (2) below) is registered under paragraph 16 of this Order,

any custody order relating to him shall cease to have effect.

(2) The decision referred to in sub-paragraph 1(b) above is a decision which is only a decision relating to custody within the meaning of paragraph 16 of this Order by virtue of being a decision relating to rights of access.

Section 26 Expenses.

There shall be paid out of money provided by Parliament—

(a) any expenses incurred by the Governor by virtue of this Order; and

(b) any increase attributable to this Order in the sums so payable under any other Act or Order.

Section 27 Interpretation.

(1) In this Order “ custody order ” means (unless the contrary intention appears) any such order as is mentioned in Schedule 3 to this Order and “ custody proceedings ” means proceedings in which an order within that Schedule may be made, varied or revoked.

(2) In this Order a decision relating to rights access means a decision as to the contact which a child may, or may not, have with any person.

Section 1

The following are the orders referred to in paragraph 27(1) of this Order—

(a) a care order under the Children Ordinance 1994 (as defined by section 2(1) of that Ordinance);

(b) a residence order within the meaning it has for the purposes of section 9 of the Children Ordinance 1994; and

(c) any order under—

(i) the Matrimonial Proceedings (Courts of Summary Jurisdiction) Ordinance 1967;

(ii) the Matrimonial Causes Ordinance 1979; or

(iii) the Guardianship of Minors Ordinance 1979.

which is an existing order for the purposes of paragraphs 4 to 9 of Schedule 4 to the Children Ordinance 1994.

Section 2

An order made by the Supreme Court in the exercise of its jurisdiction relating to wardship so far as it gives the care and control of a child to any person.