The Family Proceedings (Amendment) Rules (Northern Ireland) 2011

Rule 2(4)

SCHEDULE 1

“APPLICATIONS RELATING TO THE COUNCIL REGULATION AND THE 1996 HAGUE CONVENTION

Interpretation

4.28.— (1) In rules 4.28 to 4.39—

“Central Authority” means, in relation to Northern Ireland, the Department of Justice;

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

“judgment” has the meaning given in Article 2(4) of the Council Regulation;

“parental responsibility” has the meaning given in—

(a)

Article 2(7) of the Council Regulation in relation to proceedings under that Regulation; and

(b)

Article 1(2) of the 1996 Hague Convention in relation to proceedings under that Convention; and

“seised” has the meaning given in Article 16 of the Council Regulation.

(2) In rules 4.29 to 4.38, references to the court of another Member State or Contracting State include authorities within the meaning of “court” in Article 2(1) of the Council Regulation and 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.

Transfer of proceedings under Article 15 of the Council Regulation or under Article 8 of the 1996 Hague Convention

4.29.— (1) Where a court is considering the transfer of proceedings to the court of another Member State or Contracting State under rules 4.30 to 4.32 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 Member State or Contracting State under rules 4.30 to 4.32 will continue to apply until the court in that other State accepts jurisdiction in accordance with the provisions of the Council Regulation or the 1996 Hague Convention (as appropriate), subject to any variation or revocation of the directions.

(4) The proper officer or chief clerk 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 Member State or Contracting State will be kept by the proper officer.

Application by a party for transfer of the proceedings

4.30.— (1) A party may apply to the court under Article 15(1) of the Council Regulation or under Article 8(1) of the 1996 Hague Convention—

(a) to stay the proceedings, or a specified part of the proceedings, and to invite the parties to introduce a request before a court of another Member State or Contracting State; or

(b) to make a request to a court of another Member State or 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) in Form C1 or C2 as appropriate.

(3) The applicant must file the application and serve it on the respondents—

(a) where the application is also made under Article 11 of the Council Regulation, not less than 5 days, and

(b) in any other case, not less than 6 weeks,

before the hearing of the application.

Application by a court of another Member State or another Contracting State for transfer of the proceedings

4.31.— (1) This rule applies where a court of another Member State or another Contracting State makes an application under Article 15(2)(of the Council Regulation or under Article 9 of the 1996 Hague Convention that the court having jurisdiction in relation to the proceedings transfer the proceedings, or a specified part of the proceedings, to the applicant court.

(2) When the court receives the application, the proper officer or chief clerk will—

(a) as soon as practicable, notify the Central Authority for Northern Ireland of the application; and

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

Exercise by the court of its own motion of powers to seek to transfer the proceedings

4.32.— (1) The court having jurisdiction in relation to the proceedings may exercise its powers of its own motion under Article 15 of the Council Regulation or 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 proper officer or chief clerk will give the parties not less than 5 days notice of the hearing.

Application to High Court to make request under Article 15 of the Council Regulation or Article 9 of the 1996 Hague Convention to request transfer of jurisdiction

4.33.— (1) An application from an interested person for the court to request transfer of jurisdiction in a matter concerning a child from another Member State or another Contracting State under Article 15 of the Council Regulation or Article 9 of the 1996 Hague Convention (as the case may be) must be made to the Office of Care and Protection 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 Northern Ireland, 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 Member State or Contracting State to which the request has been made, the proper officer will serve on the applicant a notice that jurisdiction has been accepted by the courts of Northern Ireland.

(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 forthwith fix a directions hearing to consider the future conduct of the case.

Procedure where the court receives a request from the authorities of another MemberState or ContractingState to assume jurisdiction in a matter concerning a child

4.34.— (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 Member State or Contracting State, that court must forthwith 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 proper officer will notify the parties to the proceedings before the other Member State or Contracting State of that decision, and the case must be allocated as if the application had been made in Northern Ireland.

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

(4) The proper officer will serve notice of the directions hearing on all parties to the proceedings in the other Member State or 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 the Council Regulation or the 1996 Hague Convention

4.35.   The proper officer will serve an order or request relating to transfer of jurisdiction on all parties, the Central Authority of the other Member State or Contracting State, and the Central Authority for Northern Ireland.

Questions as to the court’s jurisdiction or whether the proceedings should be stayed

4.36.— (1) If at any time after issue of an application it appears to the court that under any of Articles 16 to 18 of the Council Regulation it does not or may not have jurisdiction to hear the application, or that under Article 19 of the Council Regulation or Article 13 of the 1996 Hague Convention it is or may be required to stay the proceedings or to decline jurisdiction, the court must—

(a) stay the proceedings; and

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

(2) The proper officer or chief clerk 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, without a hearing.

Request for consultation as to contemplated placement of child in Northern Ireland

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

(a) under Article 56 of the Council Regulation, by a court in another Member State; or

(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 Northern Ireland.

(2) Where the court receives a request directly from a court in another Member State or Contracting State, the court must, as soon as practicable after receipt of the request, notify the Central Authority for Northern Ireland of the request and take the appropriate action under paragraph (4).

(3) Where it appears to the proper officer or chief clerk that no proceedings relating to the child are pending before a court in Northern Ireland, the proper officer or chief clerk, as the case may be, must inform the Central Authority for Northern Ireland of that fact and forward to the Central Authority all documents relating to the request sent by the court in the other Member State or Contracting State.

(4) Where the court receives a request forwarded by the Central Authority for Northern Ireland, 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 Northern Ireland, send a copy of the request to that court and notify the Central Authority for Northern Ireland of this action.

Request made by court in Northern Ireland for consultation as to contemplated placement of child in another Member State or Contracting State

4.38.— (1) This rule applies where the court is contemplating the placement of a child in another Member State under Article 56 of the Council Regulation or another 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 the 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 must at the same time send a copy of the request to the Central Authority for Northern Ireland.

(4) The court may send the request to the Central Authority for Northern Ireland for onward transmission to the Central Authority or other authority having jurisdiction in the other Member State.

(5) The court should give consideration to the documents which should accompany the request.

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 Convention

4.39— (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 Office of Care and Protection and heard in the High Court.

(3) An application under 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.”