International Child Abduction Act 1998

Link to law: http://www.bermudalaws.bm/Laws/Annual%20Laws/1998/Acts/International%20Child%20Abduction%20Act%201998.pdf

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International Child Abduction Act 1998
INTERNATIONAL CHILD ABDUCTION ACT 1998

1

BERMUDA
1998 : 23

INTERNATIONAL CHILD ABDUCTION ACT 1998

[Date of Assent 24 June 1998]

[Operative Date 1 November 1999]

WHEREAS it is expedient to provide for the application in
Bermuda of the Hague Convention on the Civil Aspects of International
Child Abduction:

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

Citation
1 This Act may be cited as the International Child Abduction Act
1998.

Definitions
2 In this Act—

"child" means a child who has not attained the age of 16 years;

"the Convention" means the Convention on the Civil Aspects of
International Child Abduction which as signed at the Hague
on 25th October 1980;

"the Court" means the Supreme Court;

"custody order" means an order made under any statutory
provision relating to the custody of, or access to, a child.

INTERNATIONAL CHILD ABDUCTION ACT 1998

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Convention to have force of law in Bermuda
3 Subject to the provisions of this Act, the provisions of the
Convention set out in the Schedule shall have the force of law in
Bermuda.

Contracting States
4 (1) For the purposes of the Convention as it has effect under
this Act the Contracting States shall be those for the time being specified
in an order under this section.

(2) An order under this section shall be made by the Attorney-
General and shall specify the date of the coming into force of the
Convention as between Bermuda and any state specified in the order;
and except when the order otherwise provides, the Convention shall
apply as between Bermuda 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 subsections (1) and (2) shall be construed as
references to that territory or those territories.

(4) An order under this section is subject to the negative
resolution procedure.

Central authority
5 The functions under the Convention of a Central Authority shall
be discharged by the Attorney-General.

Judicial authorities
6 The court having jurisdiction to entertain applications under the
Convention shall be the Supreme Court.

Interim powers
7 Where an application has been made to the 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.

Reports
8 Where the Attorney-General is requested to provide information
relating to a child under Article 7(d) of the Convention he may—

INTERNATIONAL CHILD ABDUCTION ACT 1998

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(a) request the Department of Child and Family Services 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.

Proof of documents and evidence
9 (1) For the purposes of Article 14 of the Convention a decision
or determination of a judicial or administrative authority outside
Bermuda 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 subsection (1) 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.

Declarations by Supreme Court
10 The 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, Bermuda was wrongful within
the meaning of Article 3 of the Convention.

Suspension of court's powers in cases of wrongful removal
11 The reference in Article 16 of the Convention to deciding on the
merits of rights of custody shall be construed as a reference to making,
varying, revoking or enforcing a custody order.

Rules of court
12 (1) The Court may make such provision for giving effect to this
Act as appears to the Court to be necessary or expedient.

(2) Without prejudice to the generality of subsection (1), 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

INTERNATIONAL CHILD ABDUCTION ACT 1998

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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
section 11 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
Bermuda to obtain from any court in Bermuda an
authenticated copy of any decision of that court relating
to the child to whom the application is to relate.

Cost of applications
13 Bermuda 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 any Minister or other authority in
Bermuda except so far as they fall to be so borne by virtue of the grant of
legal aid under the Legal Aid Act 1980.

Termination of existing custody orders, etc.
14 Where an order is made for the return of a child under this Act,
any custody order relating to him shall cease to have effect.

Commencement
15 This Act comes into force on such day as the Minister
responsible for child and family services may appoint by notice published
in the Gazette.

INTERNATIONAL CHILD ABDUCTION ACT 1998

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SCHEDULE (section 2)

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL
CHILD ABDUCTION

CHAPTER I—SCOPE OF THE CONVENTION

Article 3

The removal or the retention of a child is to be considered
wrongful where—

(a) it is in breach of rights of custody attributed to a person,
an institution or any other body, either jointly or alone,
under the law of the State in which the child was
habitually resident immediately before the removal or
retention; and

(b) at the time of the removal or retention those rights were
actually exercised, either jointly or alone, or would have
been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above,
may arise in particular by operation of law or by reason of a judicial or
administrative decision, or by reason of an agreement having legal effect
under the law of that State.

Article 4

The Convention shall apply to any child who was habitually
resident in a Contracting State immediately before any breach of custody
or access rights. The Convention shall cease to apply when the child
attains the age of 16 years.

Article 5

For the purposes of this Convention—

(a) "rights of custody" shall include rights relating to the
care of the person of the child and, in particular, the
right to determine the child's place of residence;

(b) "rights of access" shall include the right to take a child
for a limited period of time to a place other than the
child's habitual residence.

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CHAPTER II—CENTRAL AUTHORITIES

Article 7

Central Authorities shall co-operate with each other and promote
co-operation amongst the competent authorities in their respective States
to secure the prompt return of children and to achieve the other objects
of this Convention.

In particular, either directly or through any intermediary, they
shall take all appropriate measures—

(a) to discover the whereabouts of a child who has been
wrongfully removed or retained;

(b) to prevent further harm to the child or prejudice to
interested parties by taking or causing to be taken
provisional measures;

(c) to secure the voluntary return of the child or to bring
about an amicable resolution of the issues;

(d) to exchange, where desirable, information relating to the
social background of the child;

(e) to provide information of a general character as to the
law of their State in connection with the application of
the Convention;

(f) to initiate or facilitate the institution of judicial or
administrative proceedings with a view to obtaining the
return of the child and, in a proper case, to make
arrangements for organizing or securing the effective
exercise of rights of access;

(g) where the circumstances so require, to provide or
facilitate the provision of legal aid and advice, including
the participation of legal counsel and advisers;

(h) to provide such administrative arrangements as may be
necessary and appropriate to secure the safe return of
the child;

(i) to keep each other informed with respect to the
operation of this Convention and, as far as possible, to
eliminate any obstacles to its application.

INTERNATIONAL CHILD ABDUCTION ACT 1998

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CHAPTER III—RETURN OF CHILDREN

Article 8

Any person, institution or other body claiming that a child has
been removed or retained in breach of custody rights may apply either to
the Central Authority of the child's habitual residence or to the Central
Authority of any other Contracting State for assistance in securing the
return of the child.

The application shall contain—

(a) information concerning the identity of the applicant, of
the child and of the person alleged to have removed or
retained the child;

(b) where available, the date of birth of the child;

(c) the grounds on which the applicant's claim for return of
the child is based;

(d) all available information relating to the whereabouts of
the child and the identity of the person with whom the
child is presumed to be.

The application may be accompanied or supplemented by—

(e) an authenticated copy of any relevant decision or
agreement;

(f) a certificate or an affidavit emanating from a Central
Authority, or other competent authority of the State of
the child's habitual residence, or from a qualified
person, concerning the relevant law of that State;

(g) any other relevant document.

Article 9

If the Central Authority which receives an application referred to
in Article 8 has reason to believe that the child is in another Contracting
State, it shall directly and without delay transmit the application to the
Central Authority of that Contracting State and inform the requesting
Central Authority, or the applicant, as the case may be.

Article 10

The Central Authority of the State where the child is shall take or
cause to be taken all appropriate measures in order to obtain the
voluntary return of the child.

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Article 11

The judicial or administrative authorities of Contracting States
shall act expeditiously in proceedings for the return of children.

If the judicial or administrative authority concerned has not
reached a decision within six weeks from the date of commencement of
the proceedings, the applicant or the Central Authority of the requested
State, on its own initiative or if asked by the Central Authority of the
requesting State, shall have the right to request a statement of the
reasons for the delay. If a reply is received by the Central Authority of
the requested State, that Authority shall transmit the reply to the Central
Authority of the requesting State, or to the applicant, as the case may be.

Article 12

Where a child has been wrongfully removed or retained in terms
of Article 3 and, at the date of the commencement of the proceedings
before the judicial or administrative authority of the Contracting State
where the child is, a period of less than one year has elapsed from the
date of the wrongful removal or retention, the authority concerned shall
order the return of the child forthwith.

The judicial or administrative authority, even where the
proceedings have been commenced after the expiration of the period of
one year referred to in the preceding paragraph, shall also order the
return of the child, unless it is demonstrated that the child is now settled
in its new environment.

Where the judicial or administrative authority in the requested
state has reason to believe that the child has been taken to another
State, it may stay the proceedings or dismiss the application for the
return of the child.

Article 13

Notwithstanding the provisions of the preceding Article, the
judicial or administrative authority of the requested State is not bound to
order the return of the child if the person, institution or other body
which opposes its return establishes that—

(a) the person, institution or other body having the care of
the person of the child was not actually exercising the
custody rights at the time of removal or retention, or had
consented to or subsequently acquiesced in the removal
or retention; or

(b) there is a grave risk that his or her return would expose
the child to physical or psychological harm or otherwise
place the child in an intolerable situation.

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The judicial or administrative authority may also refuse to order
the return of the child if it finds that the child objects to being returned
and has attained an age and degree of maturity at which it is appropriate
to take account of its views.

In considering the circumstances referred to in this Article, the
judicial and administrative authorities shall take into account the
information relating to the social background of the child provided by the
Central Authority or other competent authority of the child's habitual
residence.

Article 14

In ascertaining whether there has been a wrongful removal or
retention with the meaning of Article 3, the judicial or administrative
authorities of the requested State may take notice directly of the law of,
and of judicial or administrative decisions, formally recognised or not in
the State of the habitual residence of the child, without recourse to the
specific procedures for the proof of that law or for the recognition of
foreign decisions which would otherwise be applicable.

Article 15

The judicial or administrative authorities of a Contracting State
may, prior to the making of an order for the return of the child, request
that the applicant obtain from the authorities of the State of the habitual
residence of the child a decision or other determination that the removal
or retention was wrongful within the meaning of Article 3 of the
Convention, where such a decision or determination may be obtained in
that State. The Central Authorities of the Contracting States shall so far
as practicable assist applicants to obtain such a decision or
determination.

Article 16

After receiving notice of a wrongful removal or retention of a child
in the sense of Article 3, the judicial or administrative authorities of the
Contracting State to which the child has been removed or in which it has
been retained shall not decide on the merits of rights of custody until it
has been determined that the child is not to be returned under this
Convention or unless an application under this Convention is not lodged
within a reasonable time following receipt of the notice.

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Article 17

The sole fact that a decision relating to custody has been given
in or is entitled to recognition in the requested State shall not be a
ground for refusing to return a child under this Convention, but the
judicial or administrative authorities of the requested State may take
account of the reasons for that decision in applying this Convention.

Article 18

The provisions of this Chapter do not limit the power of a judicial
or administrative authority to order the return of the child at any time.

Article 19

A decision under this Convention concerning the return of the
child shall not be taken to be a determination on the merits of any
custody issue.

CHAPTER IV—RIGHTS OF ACCESS

Article 21

An application to make arrangements for organising or securing
the effective exercise of rights of access may be presented to the Central
Authorities of the Contracting States in the same way as an application
for the return of a child.

The Central Authorities are bound by the obligations of co-
operation which are set forth in Article 7 to promote the peaceful
enjoyment of access rights and the fulfillment of any conditions to which
the exercise of those rights may be subject. The Central Authorities shall
take steps to remove, as far as possible, all obstacles to the exercise of
such rights. The Central Authorities, either directly or through
intermediaries, may initiate or assist in the institution of proceedings
with a view to organising or protecting these rights and securing respect
for the conditions to which the exercise of these rights may be subject.

CHAPTER V—GENERAL PROVISIONS

Article 22

No security, bond or deposit, however described, shall be
required to guarantee the payment of costs and expenses in the judicial
or administrative proceedings falling within the scope of this Convention.

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Article 24

Any application, communication or other document sent to the
Central Authority of the requested State shall be in the original language,
and shall be accompanied by a translation into the official language or
one of the official languages of the requested State or, where that is not
feasible, a translation into French or English.

Article 26

Each Central Authority shall bear its own costs in applying this
Convention.

Central Authorities and other public services of Contracting
States shall not impose any charges in relation to applications submitted
under this Convention. In particular, they may not require any payment
from the applicant towards the costs and expenses of the proceedings or,
where applicable, those arising from the participation of legal counsel or
advisers. However, they may require the payment of the expenses
incurred or to be incurred in implementing the return of the child.

However, a Contracting State may, by making a reservation in
accordance with Article 42, declare that it shall not be bound to assume
any costs referred to in the preceding paragraph resulting from the
participation of legal counsel or advisers or from court proceedings,
except insofar as those costs may be covered by its system of legal aid
and advice.

Upon ordering the return of a child or issuing an order
concerning rights of access under this Convention, the judicial or
administrative authorities may, where appropriate, direct the person who
removed or retained the child, or who prevented the exercise of rights of
access, to pay necessary expenses incurred by or on behalf of the
applicant, including travel expenses, any costs incurred or payments
made for locating the child, the costs of legal representation of the
applicant, and those of returning the child.

Article 27

When it is manifest that the requirements of this Convention are
not fulfilled or that the application is otherwise not well founded, a
Central Authority is not bound to accept the application. In that case,
the Central Authority shall forthwith inform the applicant or the Central
Authority through which the application was submitted, as the case may
be, of its reasons.

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Article 28

A Central Authority may require that the application be
accompanied by a written authorisation empowering it to act on behalf of
the applicant, or to designate a representative so to act.

Article 29

This Convention shall not preclude any person, institution or
body who claims that there has been a breach of custody or access rights
within the meaning of Article 3 or 21 from applying directly to the
judicial or administrative authorities of a Contracting State, whether or
not under the provisions of this Convention.

Article 30

Any application submitted to the Central Authorities or directly
to the judicial or administrative authorities of a Contracting State in
accordance with the terms of this Convention, together with documents
and any other information appended thereto or provided by a Central
Authority, shall be admissible in the courts or administrative authorities
of the Contracting States.

Article 31

In relation to a State which in matters of custody of children has
two or more systems of law applicable in different territorial units—

(a) any reference to habitual residence in that State shall be
construed as referring to habitual residence in a
territorial unit of that State;

(b) any reference to the law of the State of habitual
residence shall be construed as referring to the law of
the territorial unit in that State where the child
habitually resides.

Article 32

In relation to a State which in matters of custody of children has
two or more systems of law applicable to different categories of persons,
any reference to the law of that State shall be construed as referring to
the legal system specified by the law of that State.