Supreme Court.q
L.R.O.
current authorised Pages
Pages Authorised
(inclusive) by L.R.O.
1–19 ..
act
8 of 2008
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international child abduction act
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UNOFFICIAL VERSION
UPDATED TO DECEMBER 31ST 2014
MINISTRY OF LEGAL AFFAIRS www.legalaffairs.gov.tt
note on Subsidiary legislation
This Chapter contains no subsidiary legislation.
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international child abduction act
ARRANGEMENT OF SECTIONS
Section
1. Short title and commencement.
2. Application.
3. Interpretation.
4. Convention to have force of law.
5. Contracting States.
6. Civil Child Abduction Authority.
7. Jurisdiction.
8. Interim powers.
9. Reports.
10. Proof of documents and evidence.
11. Declarations by the Court.
12. Additional orders.
13. Rules of Court.
14. Regulations.
Schedule.
UNOFFICIAL VERSION
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MINISTRY OF LEGAL AFFAIRS www.legalaffairs.gov.tt
8 of 2008.
Commencement.
[155/2008].
Short title and
commencement.
[155/2008].
Application.
Interpretation.
Convention to
have force of
law.
Schedule.
Contracting
States.
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international child abduction act
an act to provide for the application on trinidad and tobago
of the hague convention on the civil aspects of
international child abduction and to provide for
matters connected with or related thereto.
[15Th OCTObER 2008]
1. (1) This Act may be cited as the International Child
Abduction Act.
(2) This Act came into operation on the 15th October 2008.
2. This Act applies to a child who is under the age of
sixteen years.
3. In this Act—
“Civil Child Abduction Authority” means the Central Authority
established under section 6 pursuant to Article 6 of the
Convention;
“Convention” means the Convention on the Civil Aspects of
International Child Abduction which was signed at The
hague on 25th October 1980;
“Court” means the Supreme Court of Judicature;
“custody order” means an order made under any written law
relating to the custody of or access to a child.
4. The provisions of the Convention as set out in the
Schedule shall have the force of law in Trinidad and Tobago.
5. (1) For the purposes of giving the Convention the force
of law in Trinidad and Tobago under this Act, the Contracting
States other than Trinidad and Tobago shall be those for the time
being specified by the Minister with responsibility for foreign
affairs by Order in the Gazette.
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Civil Child
Abduction
Authority.
Jurisdiction.
Interim powers.
Reports.
(2) The Order under this section shall specify the date of
the coming into force of the Convention as between Trinidad and
Tobago and any State specified in the Order.
(3) The Convention shall apply as between Trinidad
and Tobago and that State, only in relation to removals or
retentions occurring on or after that date, except where the Order
otherwise provides.
(4) 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.
(5) An Order under this section is subject to negative
resolution of Parliament.
6. (1) There is established a Central Authority to be known
as the Civil Child Abduction Authority.
(2) The functions of the Authority referred to in
subsection (1) shall be discharged by the Attorney General.
7. (1) The Court has jurisdiction to entertain
applications under the Convention.
(2) Any party to the proceedings has a right of appeal to
the Court of Appeal.
8. 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 or make such interim
Orders as it thinks fit for the purpose of securing the welfare of
the child concerned.
9. Where the Civil Child Abduction Authority is
requested to provide information relating to a child under Article 7
of the Convention it may request any—
(a) person to make a report to it in writing with
respect to any matter which appears to it to be
relevant; and
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(b) Court to which a written report relating to the
child has been made, to send a copy of the
report to the Civil Child Abduction Authority.
10. (1) For the purposes of Article 14 of the Convention, a
decision or determination of a judicial or administrative
authority outside Trinidad and Tobago may be proved by a duly
authenticated copy of the decision or determination.
(2) Any document purporting to be a duly
authenticated copy of a decision or determination is deemed to
be a true copy unless the contrary is shown.
(3) For the purposes of subsection (1), a copy of a
decision or determination is duly authenticated if it bears the
seal, or is signed by a judge or a duly authorised officer of the
Authority in question.
(4) For the purposes of Articles 14 and 30 of the
Convention any document mentioned in Article 8 of the
Convention, or a certified copy of the document, shall be
sufficient evidence of anything stated in it.
11. 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 Trinidad
and Tobago, was wrongful within the meaning of Article 3 of
the Convention.
12. The Court, after making its final determination on the
application, may make any Order it sees fit to protect the welfare
of the child.
13. The Rules Committee, established under section 77 of the
Supreme Court of Judicature Act, may make such provisions for
giving effect to this Act as appears to it to be necessary or expedient.
14. The Attorney General may make Regulations for the
purpose of giving effect to this Act, subject to the negative
resolution of Parliament.
Proof of
documents and
evidence.
Declarations by
the Court.
Additional
orders.
Rules of Court.
Ch. 4:01.
Regulations.
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Schedule
CONvENTION ON ThE CIvIl ASPECTS OF INTERNATIONAl ChIlD
AbDuCTION
The States signatory to the present Convention,
Firmly convinced that the interests of children are of importance in
matters relating to their custody,
Desiring to protect children internationally from the harmful effects of
their wrongful removal or retention and to establish procedures to ensure their
prompt return to the State of their habitual residence, as well as to secure
protection for rights of access,
have resolved to conclude a Convention to this effect, and have agreed
upon the following provisions:
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SCOPE OF ThE CONvENTION
Article 1
The objects of the present Convention are—
(a) to secure the prompt return of children wrongfully removed
to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law
of one Contracting State are effectively respected in the
other Contracting States.
Article 2
Contracting States shall take all appropriate measures to secure within
their territories the implementation of the objects of the Convention. For this
purpose they shall use the most expeditious procedures available.
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 removal or retention those rights were actually
exercised, either jointly or alone, or would have been so
exercised but for the removal or retention.
[Section 4].
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The rights of custody mentioned in subparagraph (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
sixteen 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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CENTRAl AuThORITIES
Article 6
A Contracting State shall designate a Central Authority to discharge the
duties which are imposed by the Convention upon such authorities.
Federal States, States with more than one system of law or States having
autonomous territorial organisations shall be free to appoint more than one
Central Authority and to specify the territorial extent of their powers. Where
a State has appointed more than one Central Authority, it shall designate the
Central Authority to which applications may be addressed for transmission to
the appropriate Central Authority within that State.
Article 7
Central Authorities shall co-operate with each other and promote
co-operation amongst the competent authorities in their respective State
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;
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(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 organising 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.
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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;
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(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.
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,
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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.
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
within 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.
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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.
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.
Article 20
The return of the child under the provisions of Article 12 may be refused
if this would not be permitted by the fundamental principles of the requested
State relating to the protection of human rights and fundamental freedoms.
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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 fulfilment 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.
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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.
Article 23
No legalisation or similar formality may be required in the context of
this Convention.
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.
however, a Contracting State may, by making a reservation in
accordance with Article 42, object to the use of either French or English, but
not both, in any application, communication or other document sent to its
Central Authority.
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Article 25
Nationals of the Contracting States and persons who are habitually
resident within those States shall be entitled in matters concerned with the
application of this Convention to legal aid and advice in any other Contracting
State on the same conditions as if they themselves were nationals of and
habitually resident in that State.
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.
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.
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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.
Article 33
A State within which different territorial units have their own rules of law
in respect of custody of children shall not be bound to apply this Convention
where a State with a unified system of law would not be bound to do so.
Article 34
This Convention shall take priority in matters within its scope over the
Convention of 5th October 1961 concerning the powers of authorities and the
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law applicable in respect of the protection of minors, as between parties to
both Conventions. Otherwise the present Convention shall not restrict the
application of an international instrument in force between the State of origin
and the State addressed or other law of the State addressed for the purposes of
obtaining the return of a child who has been wrongfully removed or retained
or of organising access rights.
Article 35
This Convention shall apply as between Contracting States only to
wrongful removals or retentions occurring after its entry into force in those States.
Where a declaration has been made under Article 39 or 40, the reference
in the preceding paragraph to a Contracting State shall be taken to refer to the
territorial unit or units in relation to which this Convention applies.
Article 36
Nothing in this Convention shall prevent two or more Contracting
States, in order to limit the restrictions to which the return of the child may be
subject, from agreeing among themselves to derogate from any provisions of
this Convention which may imply such a restriction.
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FINAl ClAuSES
Article 37
The Convention shall be open for signature by the States which were
Members of The hague Conference on Private International law at the time
of its Fourteenth Session.
It shall be ratified, accepted or approved and the instruments of
ratification, acceptance or approval shall be deposited with the Ministry of
Foreign Affairs of the Kingdom of the Netherlands.
Article 38
Any other State may accede to the Convention.
The instrument of accession shall be deposited with the Ministry of
Foreign Affairs of the Kingdom of the Netherlands.
The Convention shall enter into force for a State acceding to it on
the first day of the third calendar month after the deposit of its
instrument of accession.
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The accession will have effect only as regards the relations between the
acceding State and such Contracting States as will have declared their
acceptance of the accession. Such a declaration will also have to be made by
any Member State ratifying, accepting or approving the Convention after an
accession. Such declaration shall be deposited at the Ministry of Foreign
Affairs of the Kingdom of the Netherlands; this Ministry shall forward,
through diplomatic channels, a certified copy to each of the Contracting States.
The Convention will enter into force as between the acceding State and
the State that has declared its acceptance of the accession on the first day of
the third calendar month after the deposit of the declaration of acceptance.
Article 39
Any State may, at the time of signature, ratification,
acceptance, approval or accession, declare that the Convention shall extend to
all the territories for the international relations of which it is responsible, or to
one or more of them. Such a declaration shall take effect at the time the
Convention enters into force for that State.
Such declaration, as well as any subsequent extension, shall be notified
to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
Article 40
If a Contracting State has two or more territorial units in which
different systems of law are applicable in relation to matters dealt with in
this Convention, it may at the time of signature, ratification, acceptance,
approval or accession declare that this Convention shall extend to all its
territorial units or only to one or more of them and may modify this
declaration by submitting another declaration at any time. Any such
declaration shall be notified to the Ministry of Foreign Affairs of the
Kingdom of the Netherlands and shall state expressly the territorial units to
which the Convention applies.
Article 41
Where a Contracting State has a system of government under which
executive, judicial and legislative powers are distributed between central
and other authorities within that State, its signature or ratification,
acceptance or approval of, or accession to this Convention, or its making
of any declaration in terms of Article 40 shall carry no implication as to the
internal distribution of powers within that State.
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Article 42
Any State may, not later than the time of ratification,
acceptance, approval or accession, or at the time of making a declaration
in terms of Article 39 or 40, make one or both of the reservations provided
for in Article 24 and Article 26, third paragraph. No other reservation shall
be permitted.
Any State may at any time withdraw a reservation it has made. The
withdrawal shall be notified to the Ministry of Foreign Affairs of the Kingdom
of the Netherlands.
The reservation shall cease to have effect on the first day of the third
calendar month after the notification referred to in the preceding paragraph.
Article 43
The Convention shall enter into force on the first day of the third
calendar month after the deposit of the third instrument of ratification,
acceptance, approval or accession referred to in Articles 37 and 38. Thereafter
the Convention shall enter into force—
(1) for each State ratifying, accepting, approving or acceding to it
subsequently, on the first day of the third calendar month after
the deposit of its instrument of ratification, acceptance,
approval or accession;
(2) for any territory or territorial unit to which the Convention has
been extended in conformity with Article 39 or 40, on the first
day of the third calendar month after the notification referred to
in that Article.
Article 44
The Convention shall remain in force for five years from the date of its
entry into force in accordance with the first paragraph of Article 43 even for
States which subsequently have ratified, accepted, approved it or acceded to it.
If there has been no denunciation, it shall be renewed tacitly every five years.
Any denunciation shall be notified to the Ministry of Foreign Affairs of
the Kingdom of the Netherlands at least six months before the expiry of the
five-year period. It may be limited to certain of the territories or territorial
units to which the Convention applies.
The denunciation shall have effect only as regards the State which has
notified it. The Convention shall remain in force for the other Contracting States.
UNOFFICIAL VERSION
UPDATED TO DECEMBER 31ST 2014
MINISTRY OF LEGAL AFFAIRS www.legalaffairs.gov.tt
L.R.O.
International Child Abduction chap. 12:08 19
laWS oF trinidad and tobaGo
Article 45
The Ministry of Foreign Affairs of the Kingdom of the Netherlands shall
notify the States Members of the Conference, and the States which have
acceded in accordance with Article 38, of the following:
(1) the signatures and ratifications, acceptances and approvals
referred to in Article 37;
(2) the accessions referred to in Article 38;
(3) the date on which the Convention enters into force in
accordance with Article 43;
(4) the extensions referred to in Article 39;
(5) the declarations referred to in Articles 38 and 40;
(6) the reservations referred to in Article 24 and Article 26, third
paragraph, and the withdrawals referred to in Article 42;
(7) the denunciations referred to in Article 44.
In witness whereof the undersigned, being duly authorised thereto, have
signed this Convention.
Done at The hague, on the 25th day of October, 1980, in the English
and French languages, both texts being equally authentic, in a single copy
which shall be deposited in the archives of the Government of the Kingdom
of the Netherlands, and of which a certified copy shall be sent, through
diplomatic channels, to each of the States Members of The hague Conference
on Private International law at the date of its Fourteenth Session.
UNOFFICIAL VERSION
UPDATED TO DECEMBER 31ST 2014
MINISTRY OF LEGAL AFFAIRS www.legalaffairs.gov.tt