Child Abduction and Enforcement of Custody Orders Act , 1991

PART I Preliminary and General

1. Short title, construction and commencement.

1.—(1)This Act may be cited as the Child Abduction and Enforcement of Custody Orders Act, 1991.

(2)The Courts (Supplemental Provisions) Acts, 1961 to 1988, and this Act, insofar as it affects the jurisdiction or procedure of any court in the State, shall be construed together as one.

(3)This Act shall come into operation on such day or days as the Minister shall fix by order or orders either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes and different provisions.

2. Interpretation.

2.—F1[(1) In this Act—]

“Central Authority in the State” shall be construed in accordance with section 8 or 22 (as may be appropriate) of this Act;

“child” where used in the context of the Children Act, 1908, includes a young person within the meaning of that Act;

F2["Council Regulation" means Council Regulation (EU) 2019/1111 of 25 June 2019^1;]

“the Court” means the High Court;

“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;

F3[…]

“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;

“the Minister” means the F4[the Minister for Justice, Equality and Law Reform];

“prescribed” means prescribed by regulations made by the Minister under this Act;

“probation and welfare officer” means a person appointed by the F5[the Minister for Justice, Equality and Law Reform] to be a probation and welfare officer or to be a welfare officer or probation officer.

F6[(2) References in this Act to the Hague Convention shall, where the context requires in relation to applications under the Hague Convention to which the Council Regulation relates, be deemed to include references to the Council Regulation.]

PART II The Hague Convention

3. “Contracting State”.

3.—In this Part “Contracting State” means a state in respect of which the Hague Convention is in force in accordance with the provisions of that Convention and shall be construed so that this Act shall have effect in relation to—

(a)the states which have acceded to that Convention, or any states which may accede to that Convention, and in respect of which the State has made a declaration pursuant to Article 38 of that Convention, and

(b)the places as respects which that Convention has effect by virtue of Articles 39 and 40 of that Convention.

4. Contracting States and declarations, reservations, withdrawals and denunciations under Hague Convention.

4.—(1)The Minister for Foreign Affairs may by order declare—

(a)that any state specified in the order is a Contracting State, or

(b)that—

(i)a declaration (the text of which shall be set out in the order) has been made pursuant to Article 38, 39 or 40 of the Hague Convention, or

(ii)a reservation, or a withdrawal thereof (the text of which shall be set out in the order) has been made pursuant to Article 24, 26 or (in the case of a withdrawal) 42 of that Convention, or

(iii)a denunciation (the text of which shall be set out in the order) has been made pursuant to Article 44 of that Convention,

to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

(2)An order that is in force under subsection (1) of this section shall, as the case may be, be evidence—

(a)that any state specified in the order is a Contracting State;

(b)that a declaration, a reservation, a withdrawal of a reservation or a denunciation set out in the order was made and of its contents.

(3)The Minister for Foreign Affairs may by order amend or revoke an order under this section (including an order under this subsection).

5. Evidence of decisions and determinations of authorities of Contracting States and other matters relating to Hague Convention.

5.—(1)For the purposes of Article 14 of the Hague Convention a document, duly authenticated, which purports to be a copy of a decision or determination of a judicial or administrative authority of a Contracting State other than the State shall without further proof be deemed to be a true copy of the decision or determination, unless the contrary is shown.

(2)For the purposes of Articles 14 and 30 of the Hague Convention the original or a copy of any such document as is mentioned in Article 8 of that Convention shall be admissible—

(a)insofar as it consists of a statement of fact, as evidence of that fact, and

(b)insofar as it consists of a statement of opinion, as evidence of that opinion.

(3)A document which—

(a)purports to be a translation of a decision or determination of a judicial or administrative authority of a Contracting State other than the State or of a document mentioned in Article 8 of the Hague Convention, and

(b)is certified as correct by a person competent to do so,

shall be admissible as evidence of the translation.

(4)A document purporting to be a copy of a decision, determination or declaration of a judicial or administrative authority of a Contracting State shall, for the purposes of this Part, be regarded as being duly authenticated if it purports—

(a)to bear the seal of that authority, or

(b)to be certified by a person in his capacity as a judge or officer of that authority to be a true copy of a decision, determination or declaration of that authority.

6. Hague Convention to have the force of law.

6.—(1)Subject to the provisions of F7[the Council Regulation and this Part], the Hague Convention shall have the force of law in the State and judicial notice shall be taken of it.

(2)The text of the Hague Convention in the English language is set out for convenience of reference in the First Schedule to this Act.

7. Jurisdiction of the Court for purposes of Part II.

7.—(1)For the purposes of this Part and the Hague Convention the Court shall have jurisdiction to hear and determine applications under that Convention.

F8[(2) For the purposes of such applications—

(a) references to "judicial or administrative authority" in the Hague Convention, and

(b) references toF9["authority competent for enforcement"]and to "court" inF9[Chapter III]of the Council Regulation,

shall be construed as references to the Court unless the context otherwise requires.]

8. Central Authority for purposes of Hague Convention.

8.—(1)The Minister may by order appoint a Central Authority (referred to in this Part as the Central Authority in the State) to discharge the functions under the Hague Convention of a Central Authority.

(2)Notwithstanding subsection (1) of this section, unless and until the Minister appoints a Central Authority under this section, the said functions shall be discharged by the Minister and references in this Part to the Central Authority in the State shall be construed, accordingly, as references to the Minister.

(3)The Minister may by order amend or revoke an order under this section (including an order under this subsection).

9. Application for return of child removed to the State.

9.—(1)Any application, in such form as may be prescribed, made under the Hague Convention in respect of a child removed to the State may be addressed to the Central Authority in the State.

(2)Where the Central Authority in the State receives any such application and is satisfied that the application is an application to which the Hague Convention applies, it shall take action or cause action to be taken under that Convention to secure the return of the child.

10. Application for return of child removed from the State.

10.—(1)Any application, in such form as may be prescribed, made under the Hague Convention in respect of a child removed from the State to another Contracting State may be addressed to the Central Authority in the State.

(2)Where the Central Authority in the State receives any such application and is satisfied that the application is an application to which the Hague Convention applies, it shall, on behalf of the applicant, take any action required to be taken by a Central Authority under that Convention.

(3)Nothing in subsection (1) of this section shall prevent the Central Authority in the State from dealing with any application made under the Hague Convention by or on behalf of a person in respect of a child removed from a Contracting State (not being the State) to another Contracting State (not being the State).

11. Operation of this Part not to affect jurisdiction of the Court.

11.—Nothing in this Part shall prevent a person from applying in the first instance to the Court, whether or not under the Hague Convention, in respect of the breach of rights of custody of, or breach of rights of access to, a child removed to the State.

12. Interim powers of the Court for the purposes of Part II.

12.—(1)Where an application has been made or is about to be made to the Court under the Hague Convention, the Court may of its own motion or on an application under this section, 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 preventing prejudice to interested persons or changes in the circumstances relevant to the determination of the application.

(2)An application for interim directions under this section may, where the case is one of urgency, be made ex parte.

13. Notice and stay of certain proceedings for purposes of Part II.

13.—(1)Any person who has an interest in proceedings in the Court or in proceedings about to be commenced in the Court under this Part in respect of a child removed to the State shall, where he knows that an application relating to the custody of the child is pending in or before any court in the State, give notice to that court of the proceedings, or pending proceedings (as the case may be), under the Hague Convention and that court, having notified the parties to the proceedings before it of that notice, shall stay in accordance with Article 16 of that Convention all further proceedings in the matter and shall notify the Court of the stay.

(2)For the purpose of this section an application relating to custody of a child shall be construed as including a reference to an application for—

(a)an order making, varying or discharging an order regarding the custody of, or the right of access to, a child under the Guardianship of Infants Act, 1964;

(b)an order made pursuant to Part II or IV of the Children Act, 1908, in relation to the care of a child;

(c)the recognition or enforcement of a decision relating to custody under Part III of this Act.

14. Reports for purposes of Part II.

14.—Where the Central Authority in the State is requested to provide information relating to a child under Article 7.d of the Hague Convention it may—

(a)request a probation and welfare officer to make a report to it in writing with respect to any matter relating to the child which appears to it to be relevant;

(b)request F10[theF11[Child and Family Agency]] to arrange for a suitably qualified person to make such a report to it; or

(c)request any court to which a written report relating to the child has been made to send it a copy of the report,

and any such request shall be duly complied with.

15. Declaration by the Court of wrongful removal of child.

15.—F12[(1)The Court may, on an application made for the purposes of Article 15 of the Hague 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, the State was—

(a) in the case of a removal to or retention in a Member State, a wrongfulremoval or retention within the meaning of Article 2 of the Council Regulation, or

(b) in any other case, wrongful within the meaning of Article 3 of the Hague Convention.]

(2)The Central Authority in the State shall take action or cause action to be taken to assist the person referred to in subsection (1) of this section in making an application under this section if a request for such assistance, in such form as may be prescribed, is made by him or on his behalf by the Central Authority of another Contracting State.

16. Provision of certain documents by courts in the State for purposes of Hague Convention.

16.—As respects a decision relating to custody made by a court in the State (including a declaration made by the Court under section 15 of this Act) the registrar or clerk of the court shall, at the request of a person who wishes to make an application under the Hague Convention in a Contracting State other than the State or at the request on his behalf of the Central Authority in the State and subject to any conditions that may be specified by rules of court, give to the person or the Central Authority, as the case may be, the following documents—

(a)a copy of the decision duly authenticated;

(b)Where the decision was given in default of appearance, the original or a copy, certified by the registrar or clerk of the court to be a true copy, of a document establishing that notice of the institution of proceedings was served on the person in default.

PART III The Luxembourg Convention

17. Interpretation of Part III.

17.—In this Part—

“Contracting State” means a state in respect of which the Luxembourg Convention is in force in accordance with the provisions of that Convention and shall be construed so that this Part shall have effect in relation to the places as respects which that Convention has effect by virtue of Articles 24 and 25 of that Convention;

“decision relating to custody” has the meaning given to it in Article 1 of the Luxembourg Convention;

“enforcement order” means an order of the Court for the recognition or enforcement of a decision relating to custody to which either Article 7 or 12 of the Luxembourg Convention applies.

18. Contracting States and declarations, reservations, withdrawals, notifications and denunciations under Luxembourg Convention.

18.—(1)The Minister for Foreign Affairs may by order declare—

(a)that any state specified in the order is a Contracting State, or

(b)that—

(i)a reservation, or a withdrawal thereof (the text of which shall be set out in the order) has been made pursuant to Article 6.3, 17, 18 or (in the case of a withdrawal) 27 of the Luxembourg Convention, or

(ii)a declaration (the text of which shall be set out in the order) has been made pursuant to Article 24 or 25 of that Convention, or

(iii)a notification (the text of which shall be set out in the order) has been received pursuant to Article 2 of that Convention, or

(iv)a notification of a decision or of an alteration or revocation of a decision (the text of which shall be set out in the order) has been made pursuant to Article 20 of that Convention, or

(v)a denunciation (the text of which shall be set out in the order) has been made pursuant to Article 29 of that Convention,

to or by, as the case may be, the Secretary General of the Council of Europe.

(2)An order that is in force under subsection (1) of this section shall, as the case may be, be evidence—

(a)that any state specified in the order is a Contracting State;

(b)that a reservation, a withdrawal of a reservation, a declaration, a notification or a denunciation set out in the order was made or received and of its contents.

(3)The Minister for Foreign Affairs may by order amend or revoke an order under this section (including an order under this subsection).

19. Evidence of decisions and declarations of authorities of Contracting States and other matters relating to Luxembourg Convention.

19.—(1)For the purposes of the Luxembourg Convention—

(a)a document, duly authenticated, which purports to be a copy of a decision or declaration relating to custody of a judicial or administrative authority of a Contracting State other than the State shall without further proof be deemed to be a true copy of the decision or declaration, unless the contrary is shown; and

(b)the original or a copy of any other document as is mentioned in Article 13 of the Luxembourg Convention shall be admissible—

(i)insofar as it consists of a statement of fact, as evidence of that fact, and

(ii)insofar as it consists of a statement of opinion, as evidence of that opinion.

(2)A document which—

(a)purports to be a translation of a decision or declaration of a judicial or administrative authority of a Contracting State other than the State or any other document mentioned in Article 13 of the Luxembourg Convention, and

(b)is certified as correct by a person competent to do so,

shall be admissible as evidence of the translation.

(3)A document purporting to be a copy of a decision or declaration relating to custody made by a judicial or administrative authority of a Contracting State shall, for the purposes of this Part, be regarded as being duly authenticated if it purports—

(a)to bear the seal of that authority, or

(b)to be certified by a person in his capacity as a judge or officer of that authority to be a true copy of a decision or declaration of that authority.

20. Application of this Part.

20.—This Part applies to any decision relating to custody (by whatever name called) that is a decision relating to custody for the purposes of the Luxembourg Convention.

21. Luxembourg Convention to have the force of law.

21.—(1)Subject to the provisions of this Part (including the restrictions on recognition and enforcement of a decision relating to custody contained in section 28 of this Act), the Luxembourg Convention shall have the force of law in the State and judicial notice shall be taken of it.

(2)The text of the Luxembourg Convention in the English language is set out for convenience of reference in the Second Schedule to this Act.

22. Central Authority for purposes of Luxembourg Convention.

22.—(1)The Minister may by order appoint a Central Authority (referred to in this Part as the Central Authority in the State) to discharge the functions under the Luxembourg Convention of a Central Authority.

(2)Notwithstanding subsection (1) of this section, unless and until the Minister appoints a Central Authority under this section, the said functions shall be discharged by the Minister and references in this Part to the Central Authority in the State shall be construed, accordingly, as references to the Minister.

(3)The Minister may by order amend or revoke an order under this section (including an order under this subsection).

23. Jurisdiction of the Court for purposes of Part III.

23.—For the purposes of this Part and the Luxembourg Convention the Court shall have jurisdiction to hear and determine applications under that Convention for the recognition or enforcement of a decision relating to custody.

24. Applications for recognition and enforcement of custody decisions in the State.

24.—(1)Any application, in such form as may be prescribed, made by or on behalf of a person on whom any rights are conferred by a decision relating to custody made by an authority in a Contracting State other than the State for the recognition or enforcement of the decision in the State may be addressed to the Central Authority in the State.

(2)Where the Central Authority in the State receives any such application and is satisfied that the application is an application to which the Luxembourg Convention applies, it shall take action or cause action to be taken under that Convention to secure the recognition or enforcement of the decision.

25. Applications in the first instance to the Court.

25.—Nothing in this Part shall prevent a person from applying in the first instance to the Court under the Luxembourg Convention for the recognition or enforcement of a decision relating to custody made by an authority in a Contracting State, other than the State.

26. Interim powers of the Court for the purposes of Part III.

26.—(1)Where an application has been made or is about to be made to the Court under the Luxembourg Convention for the recognition or enforcement of a decision relating to custody, the Court may of its own motion or on an application under this section, 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 preventing prejudice to interested persons or changes in the circumstances relevant to the determination of the application.

(2)An application for interim directions under this section may, where the case is one of urgency, be made ex parte.

27. Notice and stay of certain proceedings for purposes of Part III.

27.—(1)Any person who has an interest in proceedings in the Court under this Part for the recognition or enforcement of a decision relating to custody made by an authority in a Contracting State other than the State shall, where he knows that an application relating to custody of the child is pending in or before any court in the State and such proceedings were commenced before the proceedings in the Contracting State which resulted in the decision in respect of which recognition or enforcement is sought were instituted, give notice to the Court of those proceedings and the Court may stay all further proceedings in the application for recognition or enforcement until the other proceedings have been determined.

(2)Any person who has an interest in proceedings in the Court under this Part for the recognition or enforcement of a decision relating to custody made by an authority in a Contracting State other than the State shall, where he knows that an application relating to custody of the child is pending in or before any court in the State and such proceedings were commenced after the proceedings in the Contracting State which resulted in the decision in respect of which recognition or enforcement is sought were instituted, give notice to that court of the proceedings under the Luxembourg Convention and that court having notified the parties to the proceedings before it of that notice shall stay all further proceedings in the matter until the Court determines the application for recognition or enforcement. The court concerned shall notify the Court of the stay.

(3)For the purpose of this section an application relating to custody of a child shall be construed as including a reference to an application for—

(a)an order making, varying or discharging an order regarding the custody of, or the right of access to, a child under the Guardianship of Infants Act, 1964;

(b)an order made pursuant to Part II or IV of the Children Act, 1908, in relation to the care of a child.

28. Refusal of application for recognition or enforcement of custody decision in the State.

28.—(1)The Court shall refuse an application made under this Part for recognition or enforcement in the State of a decision relating to custody where—

(a)in relation to a decision to which Article 8 of the Luxembourg Convention applies, the Court is of opinion on any of the grounds specified in Article 10.1. a, b, c or d of that Convention that the decision should not be recognised or enforced in the State;

(b)in relation to a decision to which Article 9 or 10 of that Convention applies, the Court is of opinion on any of the grounds specified in the said Articles that the decision should not be recognised or enforced in the State;

(c)the Court is of opinion that the decision is not enforceable in the Contracting State where it was made and is not a decision to which Article 12 of the Convention applies.

(2)Where an application is made to the Court under this Part for recognition or enforcement in the State of a decision relating to custody and an application to the Court in respect of the child is pending under Part II of this Act the Court shall stay all further proceedings under this Part until the other proceedings have been determined.

(3)The references in Article 9.1.c of the Luxembourg Convention to the removal of the child are to his improper removal within the meaning of that Convention.

(4)For the purposes of this section a decision relating to custody includes a decision varying that decision.

29. Enforcement of custody decisions.

29.—A decision relating to custody in respect of which an enforcement order has been made shall be of the same force and effect and, as respects the enforcement of the decision, the Court shall have the same powers, and proceedings may be taken, as if the decision was a decision of the Court.

30. Reports for purposes of Part III.

30.—Where the Central Authority in the State is requested to make enquiries about a child under Article 15.1.b of the Luxembourg Convention the Central Authority may—

(a)request a probation and welfare officer to make a report to it in writing with respect to any matter relating to the child which appears to it to be relevant;

(b)request F13[theF14[Child and Family Agency]] to arrange for a suitably qualified person to make such a report to it;

(c)request any court to which a written report relating to the child has been made to send it a copy of the report,

and any such request shall be duly complied with.

31. Variation and revocation of custody decisions.

31.—(1)Where a decision relating to custody is varied or revoked by an authority in the Contracting State in which it was made, any person appearing to the Court to have an interest in the matter may make an application to the Court for an order for variation or revocation of the order of recognition or enforcement of that decision.

(2)Where an application is made under subsection (1) of this section for revocation of an order the Court shall, if it is satisfied that the decision (in respect of which the order of recognition or enforcement was made) has been revoked by an authority in the Contracting State in which it was made, discharge the order and the decision shall cease to be enforceable in the State.

(3)Where an application is made under subsection (1) of this section for variation of an order, the Court may, if it is satisfied that the decision has been varied by an authority in the Contracting State in which it was made and, subject to the grounds of refusal specified in section 28 (1) of this Act, make an order varying the order and a decision so varied shall be of the same force and effect, and as respects the enforcement of the decision so varied, the Court shall have the same powers and proceedings may be taken, as if the decision so varied was a decision of the Court.

(4)The Central Authority in the State shall assist the person referred to in subsection (1) of this section if a request for such assistance, in such form as may be prescribed, is made by him or on his behalf by the Central Authority of the Contracting State in question.

32. Applications for recognition and enforcement of custody decisions in another Contracting State.

32.—(1)A person on whom any rights are conferred by a decision relating to custody made by a court in the State or by an authority within the meaning of the Luxembourg Convention in another Contracting State may make an application, in such form as may be prescribed, to the Central Authority in the State under Article 4 of the Luxembourg Convention with a view to securing its recognition or enforcement in another Contracting State.

(2)Where the Central Authority in the State receives any such application and is satisfied that the application is an application to which Article 4 of the Luxembourg Convention applies it shall, on behalf of the applicant, take any action required to be taken by a Central Authority under that Convention.

33. Provision of certain documents by courts in the State for purposes of Luxembourg Convention.

33.—As respects a decision relating to custody made by a court in the State (including a declaration made by a court under section 34 of this Act), the registrar or clerk of the court shall, at the request of a person who wishes to make an application under the Luxembourg Convention in a Contracting State other than the State or at the request on his behalf of the Central Authority in the State and subject to any conditions that may be specified by rules of court, give to the person or the Central Authority, as the case may be, all or any of the documents referred to in Article 13.1.b, c and d of that Convention, that is to say—

(a)a copy of the decision duly authenticated;

(b)a certificate signed by the registrar or clerk of the court stating—

(i)the nature of the proceedings,

(ii)the date on which the time for the lodging of an appeal against the decision will expire or, if it has expired, the date on which it expired,

(iii)whether notice of appeal against, or, in any case where the defendant does not appear, a notice to set aside, the decision has been entered, and

(iv)such particulars (if any) as may be specified by rules of court,

and

(c)in case the decision was given in default of appearance, the original or a copy, certified by the registrar or clerk of the court to be a true copy, of a document establishing that notice of the institution of proceedings was served on the person in default.

34. Declaration by a court of unlawful removal of child.

34.—(1)Where a court in the State makes a decision relating to the custody of a child who has been removed from the State that court may also, on an application made by any person for the purposes of Article 12 of the Luxembourg Convention, make a declaration that the removal of the child from the State was unlawful if it is satisfied that the applicant has an interest in the matter and that the child 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 the State.

(2)The Central Authority in the State shall take action or cause action to be taken to assist the person referred to in subsection (1) of this section in making an application under this section if a request for such assistance, in such form as may be prescribed, is made by him or on his behalf by the Central Authority of another Contracting State.

PART IV Supplementary

35. Termination of existing custody orders.

35.—Where the Court makes—

(a)an order for the return of a child under Part II of this Act; or

(b)an order recognising or enforcing a decision relating to the custody of a child (other than a decision relating only to rights of access) under Part III of this Act,

the Court may, on notice to any interested parties, discharge any order regarding the custody of, or the right of access to, the child.

36. Power of the Court to order disclosure of child's whereabouts.

36.—(1)Where—

(a)in proceedings for the return of a child under Part II of this Act, or

(b)on an application for the recognition or enforcement of a decision in respect of a child under Part III of this Act,

there is not available to the Court adequate information as to the whereabouts of the child, the Court may order any person who, it has reason to believe, may have relevant information to disclose it to the Court.

(2)Any person who is the subject of an order under subsection (1) of this section may, notwithstanding production of the child, be ordered to disclose any information that is relevant to proceedings under Part II or III of this Act.

(3)Where—

(a)in proceedings in a Contracting State other than the State for the return of a child under the Hague Convention, or

(b)in proceedings for the recognition or enforcement of a decision in a Contracting State other than the State in respect of a child under the Luxembourg Convention,

or where such proceedings are about to be commenced, there is not available to the authorities in the Contracting State adequate information as to the whereabouts of the child, the Court may, on application made to it by any person, if it is satisfied that the applicant has an interest in the matter and that the child 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 the State, order any person who, it has reason to believe, may have relevant information to disclose it to the Court.

(4)Any person who is the subject of an order under subsection (3) of this section may, notwithstanding production of the child in the Contracting State, be ordered to disclose any information that is relevant to proceedings in that state.

(5)A person shall not be excused from complying with any order under this section by reason that to do so may incriminate him or his spouse of an offence; but a statement or admission made in compliance with any such order shall not be admissible in evidence against either of them in proceedings for an offence other than perjury.

36A. F15[Obtaining information as to whereabouts of child.

36A.—The Central Authority in the State may, for the purposes of obtaining any information that is necessary or expedient for the performance of its functions under Article 7(a) of the Hague Convention or, as may be appropriate, Article 5.1.aof the Luxembourg Convention, require any holder of a public office or body financed wholly or partly by means of monies provided by the Oireachtas to provide it with any information in the possession or procurement of the holder or body which would assist in discovering the whereabouts of a child and any such request shall be duly complied with.]

37. Power of Garda Síochána to detain a child and matters consequential upon such detention.

37.—(1)A member of the Garda Síochána shall have power to detain a child who he reasonably suspects is about to be or is being removed from the State in breach of any of the following orders of a court in the State—

(a)an order regarding the custody of, or right of access to, the child (whether or not such an order contains an order prohibiting the removal of the child from the jurisdiction without leave of the court) or any order relating to the child made by the court in the exercise of its jurisdiction relating to wardship of a child;

(b)an order made pursuant to Part II or IV of the Children Act, 1908, in relation to the care of the child;

(c)an order made under section 12 of this Act or an order made for return of the child under Part II of this Act;

(d)an order made under section 26 of this Act or an order made for recognition or enforcement of a decision relating to custody under Part III of this Act,

or while proceedings for one of those orders are pending or an application for one of those orders is about to be made.

F16[(2) Where a child is detained under this section a member of the Garda Síochána shall as soon as possible—

(a) return the child to the custody of a person (not being theF17[Child and Family Agency]) in favour of whom a court has made an order referred to in subsection (1) of this section unless the member has reasonable grounds for believing that such person will act in breach of such order, or

(b) where the child has been in the care of theF17[Child and Family Agency], return the child to it, or

(c) in a case other than one to whichparagraph(a) or (b) of this subsection applies, or where the member is of the belief referred to in the saidparagraph(a), deliver the child into the care of theF17[Child and Family Agency].]

(3)Where a member of the Garda Síochána delivers into the care of F18[theF17[Child and Family Agency]] a child in accordance with subsection (2) (c) of this section, he shall as soon as possible inform or cause to be informed—

(a)a parent of the child, or

(b)a person acting in loco parentis, or

(c)the Central Authority referred to in section 8 (in a case to which subsection (1) (c) of this section applies) or section 22 (in a case to which subsection (1) (d) of this section applies) of this Act, of such delivery.

(4)Where any child is delivered into the care of F18[theF17[Child and Family Agency]] in accordance with subsection (2) (c) of this section F19[theF17[Child and Family Agency]] shall arrange suitable care and accommodation for the child, which may include placing the child in foster care or residential care, pending the determination of an application under subsection (5) of this section by F19[theF17[Child and Family Agency]].

(5)Where a child is delivered into the care of F18[theF17[Child and Family Agency]] under subsection (2) (c) of this section F19[theF17[Child and Family Agency]] shall apply at the next sitting of the District Court or, in the event that the next sitting is not due to be held within three days of the date on which the child is delivered into the care of F19[theF17[Child and Family Agency]], at a specially arranged sitting of the District Court held within the said three days, for directions as to the child's release from such care or otherwise in relation to the child's care and the District Court may make such order as it thinks proper in the circumstances regarding custody of and, where appropriate, access to, the child, taking into account any order referred to in subsection (1) of this section relating to the child and without prejudice to proceedings that may be pending or any application that is about to be made for one of those orders in relation to the child.

(6)Any order containing a direction under subsection (5) of this section shall be of the same force and effect as if it were an order made by the District Court under section 11 of the Guardianship of Infants Act, 1964.

(7)The jurisdiction of the District Court in respect of proceedings under subsection (5) of this section may be exercised by the justice of the District Court for the time being assigned to the district court district where the child resides or was at a material time residing and where a justice for the district in which the proceedings are brought is not immediately available, an order may be made by any justice of the District Court.

PART V Miscellaneous

38. Rules of court.

38.—(1)Proceedings under Part II or III of this Act shall be commenced in a summary manner.

(2)Rules of court may make provision for the expeditious hearing of an application under Part II or III of this Act.

39. Amendment of Judicial Separation and Family Law Reform Act, 1989.

39.—(1)In this section “the Act of 1989” means the Judicial Separation and Family Law Reform Act, 1989.

(2)The proceedings to which subsections (3) and (4) of section 33 (conduct of family proceedings in the High Court) of the Act of 1989 apply shall be deemed to include proceedings under this Act.

(3)Section 45 of the Act of 1989 is hereby amended by the substitution of the following for “and the Status of Children Act, 1987” in subsection (1):

40. Costs.

40.—(1)The costs of any proceedings under any provision of this Act shall be in the discretion of the court concerned.

(2)Without prejudice to the generality of subsection (1) of this section, a court in making an order for costs in any proceedings under this Act—

(a)may direct the person who removed or retained a child, or who prevented the exercise of rights of access in relation to a child, to pay any necessary expenses incurred by or on behalf of the applicant in the proceedings, 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;

(b)shall otherwise have regard to the provisions of Article 26 of the Hague Convention (where proceedings under Part II of this Act are concerned) or Article 5.3 of the Luxembourg Convention (where proceedings under Part III of this Act are concerned).

41. Regulations.

41.—(1)The Minister may make regulations for the purpose of giving effect to this Act.

(2)Without prejudice to the generality of subsection (1) of this section, regulations under this section may prescribe forms to be used in connection with any of the provisions of this Act.

42. Laying of orders and regulations before Houses of Oireachtas.

42.—Every order or regulation made by the Minister under this Act (other than an order made under section 1 (3) of this Act) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next subsequent twenty-one days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

43. Expenses.

43.—The expenses incurred in the administration of this Act by the Minister or a Central Authority appointed under section 8 or 22 of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.