Superior Court Rules

ORDER 133

CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS

1. For the purposes of this Order–

‘the Act’ means the Child Abduction and Enforcement of Custody Orders Act, 1991;

‘the Hague Convention’ means the Convention on the Civil Aspects of International Child Abduction, signed at the Hague on the 25th day of October, 1980 and set out in the First Schedule to the Act;

‘The Luxembourg Convention’ means the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children, signed at Luxembourg on the 20th day of May, 1980 and set out in the Second Schedule to the Act;

‘Contracting State’ means a State as defined by section 3 or section 17 of the Act, as the case may be;

‘The Central Authority’ means the Central Authority appointed by the Minister pursuant to section 8 or section 22 of the Act, as the case may be.

[SI 307/13; SI 506/05; SI 94/01]

2. (1) Any applications made pursuant to section 9(2), section 10(2), section 11, section 15, section 24(2), or section 25 of the Act shall be brought by way of special summons which shall be a family law summons and shall be entitled:

‘The High Court

Family Law

In the Matter of the Child Abduction and Enforcement of Custody Orders Act, 1991

And In the Matter of the Convention

And In the Matter of [X], a minor

Between

[A.B.]

Applicant

And

[C.D.]

Respondent’.

Where an application under section 9(2) or section 10(2) of the Act is one to which Article 11 of Regulation No 2201/2003 applies, the summons shall additionally be entitled ‘And in the matter of Council Regulation No 2201/2003 (EC)’.

[SI 506/05]

(2) Where applications are brought by the Central Authority, the applicant shall be referred to as ‘the Minister for Justice, Equality and Law Reform, as the Central Authority for Ireland, ex parte (the applicant)’.

(3) The indorsement of claim shall be entitled ‘Special Indorsement of Claim’ and state, with all necessary particulars, the relief sought, each section of the Act under which the relief is sought and the grounds upon which the relief is sought. The indorsement shall, where possible, specify:

(a) the name and (where available) the date of birth of the minor;

(b) if known, the date on which the disputed removal or retention of the minor occurred;

(c) the name of the minor’s parents or guardians;

(d) details of any decision relating to custody or access which is sought to be recognised or enforced;

(e) the interest of the applicant in the matter;

(f) the identity of the person alleged to have removed the minor and, if different, of the person with whom the minor is alleged to be;

(g) the believed whereabouts of the minor.

[SI 94/01]

3. (1) In any proceeding pursuant to rule 2(1) above, an affidavit verifying such proceeding shall have regard to the matters specified in Article 8 of the Hague Convention and Article 13 of the Luxembourg Convention, as the case may be, and shall, where possible, be accompanied by all relevant documentation including that listed in Article 8 of the Hague Convention or Art13 of the Luxembourg Convention, as the case may be.

(2) Notwithstanding the provisions of Order 38, rule 1, the special summons when issued shall be returnable before the court. Proper proof of service shall be made available to the court on the return date.

[SI 94/01]

4. (1) A respondent may deliver a replying affidavit and such replying affidavit shall be served on the applicant within seven days of the grounding affidavit having been served upon the respondent.

(2) The replying affidavit shall set out all grounds of defence being relied upon in opposition to the applicant’s application.

(3) The applicant may file a further affidavit replying to any issue or matter raised by the respondent within seven days after the service upon the applicant of the respondent’s affidavit.

[SI 94/01]

5. (1) The court shall, at the earliest opportunity, give such directions as are necessary to provide for an expeditious hearing of the matter and all parties shall comply therewith.

(2) Applications shall be heard on the basis of affidavit evidence only. The court, at its discretion, may, in exceptional circumstances, direct or permit oral evidence to be adduced.

[SI 94/01]

6. (1) Where an application is about to be made to the court under Part II or Part III of the Act, the applicant may apply to the court, pursuant to section 12(1), 12(2), 26(1) or 26(2) of the Act for interim directions.

(2) An application pursuant to section 12(2) or 26(2) may be made ex parte to the court in any case where interim directions are required in a case of urgency. Such an application shall be heard on affidavit unless the court otherwise directs. Where any oral evidence is heard by the court in the course of any such application ex parte, a note of such evidence shall be prepared by the applicant or the applicant’s solicitor and approved by the court and shall be served upon the respondent forthwith together with a copy of the order made, if any, unless otherwise directed by the court.

(3) Where a special summons has issued and been served, an application brought pursuant to section 12(1) or 26(1) of the Act shall be brought by notice of motion to the court. Such notice shall be served upon the other party to the proceeding seven days before the return date and shall specify the directions or relief sought from the court. The said notice shall be grounded upon the affidavit of the party concerned.

(4) Any application brought under the Act (not being an application mentioned in rule 2(1)) shall be brought by motion on notice in the proceedings.

[SI 506/05; SI 94/01]

7. (1) An application made pursuant to section 31(1) of the Act shall be brought by way of notice of motion seeking the variation or revocation of the order of recognition or enforcement previously made by the court. The said application shall be grounded upon affidavit served seven days before the return date. The said affidavit shall be accompanied by the documentation referred to at Article 13 of the Luxembourg Convention.

[SI 94/01]

8. (1) Where an application is made pursuant to section 36(3) of the Act, the said application shall be brought by way of an originating notice of motion. The said notice of motion shall be entitled

‘The High Court

Family Law,

In the Matter of Section 36(3) of the Child Abduction and Enforcement of Custody Orders Act, 1991 And in the matter of Foreign Proceedings entitled or to be entitled “ ” (as the case may be).’

(2) The said notice of motion shall be grounded on affidavit sworn by the applicant setting out:

(a) the applicant’s interest in the matter;

(b) the manner in which the minor 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 that State;

(c) the persons within the jurisdiction of the court who may have relevant information;

(d) the grounds for believing that the said persons may have relevant information;

(e) the nature of the relevant information in respect of which an order for disclosure is sought.

[SI 94/01]

9. The provisions of Order 119, rules 2 and 3 solely insofar as they relate to the wearing of a wig and gown shall not apply to any proceedings under this Order.

[SI 94/01]

10. Where the court makes an order of non-return pursuant to Article 13 of the Hague Convention in a case to which Article 11 of Regulation No 2201/2003 applies, the Registrar shall cause the transmission, through the Central Authority, to the court with jurisdiction or central authority in the Member State of the European Union where the child was habitually resident before the wrongful removal or retention, of the documents specified in Article 11(6) of Regulation No 2201/2003.

[SI 506/05]

11. (1) Where the Central Authority receives documents specified in Article 11(6) of Regulation No 2201/2003 in respect of an order of non-return pursuant to Article 13 of the Hague Convention made concerning a child who was habitually resident in the State before his or her wrongful removal or retention, and no proceedings are in being before a court in the State concerning the custody of or access to the child, the Central Authority shall issue an originating notice of motion entitled:

‘The High Court

Family Law

In the Matter of Article 11(6) of Regulation No 2201/2003

And In the Matter of the Foreign Proceedings entitled “ ”.’

(2) The said originating notice of motion shall be grounded on an affidavit exhibiting the documents received pursuant to Article 11(6) of Regulation No 2201/2003 and shall seek the directions of the court for the purposes of Article 11(7) of Regulation No 2201/2003. The originating notice of motion shall be served on the parties referred to in Article 11(7) of Regulation No 2201/2003.

(3) Where the Central Authority receives documents specified in Article 11(6) of Regulation No 2201/2003 in respect of an order of non-return pursuant to Article 13 of the Hague Convention made concerning a child who was habitually resident in the State before his or her wrongful removal or retention, and proceedings are in being before the court concerning the custody of or access to the child, the Central Authority shall transmit the said documents to the appropriate office of the High Court or, as the case may be, to the Office of the Registrar of the Court of Appeal or the Supreme Court Office.

(4) Where the court receives documents specified in Article 11(6) of Regulation No 2201/2003 in respect of an order of non-return pursuant to Article 13 of the Hague Convention made concerning a child who was habitually resident in the State before his or her wrongful removal or retention (whether under sub-rule (3) of this rule or otherwise), and proceedings are in being before a court in the State concerning the custody of or access to the child, the court shall (i) if such proceedings are in being before the High Court, Court of Appeal or Supreme Court, cause the Registrar to transmit copies of such documents to the parties to those proceedings by registered post or in such other manner as the court may direct or (ii) if such proceedings are in being before another court in the State, cause the Registrar to transmit such documents to the appropriate office of that court.

(5) Where the court receives documents specified in Article 11(6) of Regulation No 2201/2003 in respect of an order of non-return pursuant to Article 13 of the Hague Convention made concerning a child who was habitually resident in the State before his or her wrongful removal or retention, and no proceedings are in being before any court in the State, concerning the custody of or access to the child, the court shall cause the Registrar to transmit copies of such documents to the persons appearing to have an interest in such order by registered post or in such other manner as the court may direct. Such persons shall also be notified of a date, within three months of the receipt of such documents, when the matter of the child shall be listed before the court and any submissions by or on behalf of such persons heard. The title employed in proceedings in respect of the matter shall be the same title as in proceedings to which sub-rule (1) of this rule applies. Copies of the documents and notification referred to shall also be provided to the Central Authority, which shall be at liberty to appear and to apply to be heard on the date on which the matter of the child is listed before the court. However, nothing in this rule shall be interpreted as requiring the Central Authority to appear or otherwise to participate in the matter or in any such proceedings.

[SI 485/14; SI 506/05]

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