S.I. No. 94/2001 - Rules of the Superior Courts (No. 1) (Child Abduction and Enforcement of Custody Orders Act, 1991), 2001

We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the Courts of Justice Act, 1936 , section 67, and reconstituted pursuant to the provisions of the Courts of Justice Act, 1953 , section 15, by virtue of the powers conferred upon us by the Courts of Justice Act, 1924 , section 36, and the Courts of Justice Act, 1936 , section 68 (as applied by the Courts (Supplemental Provisions) Act, 1961 , section 48), and the Courts (Supplemental Provisions) Act, 1961 , section 14, and of all other powers enabling us in this behalf, do hereby make the annexed Rules of Court.

Dated this 13th day of July, 2000.

I concur in the making of the annexed Rules of Court.

Dated this 20th day of March, 2001.

John O'Donoghue

Aire Dli agus Cirt

Comhionannais agus Athchoirithe Dli.

S.I. NO. 94 OF 2001

RULES OF THE SUPERIOR COURTS (NO. 1) (CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991), 2001

1.       The following shall be inserted as Order 133 of the Rules of the Superior Courts immediately after Order 132 thereof:

“                               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.

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 (as the case may be)

and In the Matter of [X], a minor,

Between

AB,

the applicant,

And

CD,                            the respondent”.

(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.

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 Article 13 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.

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.

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.

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.

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.

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.

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.

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”

2.       This rule shall come into operation on the 23rd day of April, 2001.

3.       This rule shall be construed together with the Rules of the Superior Courts, 1986 to 1999 and may be cited as the Rules of the Superior Courts (No. 1) (Child Abduction and Enforcement of Custody Orders Act, 1991), 2001.

Explanatory Note

(This note is not part of the Instrument and does not purport to be a legal interpretation).

These Rules precribe procedures in relation to proceedings under the Child Abduction and Enforcement of Custody Orders Act, 1991 .