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Maltese Laws |
CHILD ABDUCTION AND CUSTODY ACT
To enable Malta to ratify two international Conventions relating respectively to the civil aspects of international child abduction and to the recognition and enforcement of custody decisions.
ACT XIII of 1999 as amended by Act VI of 2001.
1st August, 2000
Act.
"abduction" means the taking by force or the kidnapping of a person;
"child" means a person under the age of sixteen years;
"Malta" has the same meaning assigned to it by the Constitution; "Minister" means the Minister responsible for justice.
(2) In the First and Second Schedules to this Act, if there is any conflict between the English and the Maltese texts, the English
text shall prevail.
PARTI
(2) Subject to the provisions of this Part of this Act, the provisions of the Convention set out in the First Schedule to this Act shall have the force of law in Malta.
Short title. Interpretation.
The Hague
Convention.
(2) Such order shall specify the date of the coming into force of the Convention as between Malta and any State specified in it;
and, except where the order otherwise provides, the Convention shall apply as between Malta 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 Cont ractin g S t ate under Article 39 or 40 of the Convention, references to that State in subarticles (1)
and (2) above
Contracting States.
shall be construed as references to that territory or those territories.
Central authority. 5. The functions under the Convention of a central authority shall be discharged by the Director responsible for welfare and any application made under the Convention by or on behalf of a person o u tside M a l t a m a y be ad dressed to the office of the Direct or responsible for welfare.
Jurisdiction. 6. (1) The First Hall of the Civil Court or any other court which the Minister may by order designate shall have jurisdiction to entertain applications under the Convention.
(2) Whenever any person interested or the Director responsible for welfare alleges that a child has been wrongfully removed within
th e m e an ing of Article 3 of the Conventio n, he m a y, wi thout prejudice to any other action with respect to the same matter
that is lawfully available, make an application under subarticle (1) for redress.
(3) Any party to the proceedings shall have a right of appeal to the Court of Appeal.
Interim powers. 7. Where an application has been made under the Convention to the First Hall of the Civil Court or to any other court which the Minister
may by order designate, the court may, at any time before the application is determined, give such interim directions as it t h ink s fit fo r t h e p u rpo s e of se curing the welfare of the child concerned or of preventing changes in
the circumstances relevant to the determination of the application.
Reports. 8. Where the Director responsible for welfare is requested to p r o v i d e in fo rmat io n re lat i n g to a child unde r Article 7 of the Convention he may -
(a) request any person 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.
(2) For the purposes of subarticle (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,
o r a certified co py o f an y such docum ent, shall be su ff i c ient evidence of anything stated in it.
(a) making, varying or revoking a custody order under articles 47, 56, 60, 61 or 149 of the Civil Code;
(b) registering or enforcing a decision under Part II of this
Act.
Declarations by the First Hall of the Civil Court or any other designated court.
Suspension of court’s powers in cases of wrongful removal.
Cap. 16.
12. The Rule-Making Board established under article 29 of the Code of Or ganizat i on and Civ il Pro c edure may make su ch provision for giving effect to this Part of this Act as appears to it to be necessary or expedient.
(2) Malta is also making a reservation to the effect that communications sent to the central authority shall be accompanied
by a translation in English.
PART II
(2) Subject to the provisions of this Part of this Act, the provisions of that Convention set out in the Second Schedule to this A c t (which include Articles 9 and 10 as th ey have ef fect in consequence of a reservation made by Malta under Article 17, which reservation is reproduced in the Fourth Schedule to this Act) shall have the force of law in Malta.
Rules of Court. Cap. 12.
Reservations.
The European
Convention.
(2) Such order shall specify the date of the coming into force of the Convention as between Malta and any State specified in the
Contracting States.
order.
(3) Where the Convention applies, or applies only, to a parti c ular territ o ry o r p a r ticul ar terr ito ries sp
ecif ied b y a Con t racting S t at e under Article 2 4 or 25 of the Co nventio n, references to that State in subarticles (1) and
(2) above shall be construed as references to that territory or those territories.
Central authority. 16. (1) The functions under the Convention of a central aut horit y shall be disch a r g ed by the Di rector responsible for welfare.
(2) Any application made under the Convention by or on behalf of a person outside Malta m a y be a ddres sed to the Dire ctor responsible for welfare.
Recognition of decisions.
Registration of decisions.
(2) A decision to which either of those Articles applies which was made in a Con t ract ing S t at e o t her th an Malta shall
b e recognised in Malta as if made by a court in Malta but -
(a) the Court of Appeal may, on the application of any person appearing to it to have an interest in the matter, declare on any of
the grounds specified in Article 9 or
10 of the Convention that the decision is not to be recognised in Malta; and
(b) the decision shall not be enforceable in Malta unless registered in the appropriate court under article 18.
(3) The references in Article 9 (1)(c) of the Convention to the rem oval of t h e chil d are t o his im proper rem oval wi th in the meaning of the Convention.
(2) The central authority in Malta shall assist such a person in making such an application if a request for such assistance is
made by him or on his behalf by the central authority of the Contracting State in question.
(3) An application under subarticle (1) or a request under subarticle (2) shall be treated as a request for enforcement
for the purposes of Articles 10 and 13 of the Convention.
(4) The Court of Appeal shall refuse to register a decision if - (a) the court is of the opinion that on any of the grounds
specified in Article 9 or 10 of the Convention the
decision should not be recognised in Malta;
(b) the court is of the 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; or
(c) an application in respect of the child under Part I of
this Act is pending.
(5) In this article "decision relating to custody" has the same meaning as in the Convention.
(2) Where the Court of Appeal is notified under subarticle (1)
above of the revocation of a decision, it shall -
(a) cancel the registration, and
(b) notify such persons as may be prescribed by such rules of court as may be made by the Rule-Making Board set up under article 29
of the Code of Organization and Civil Procedure, of the cancellation.
(3) Where a court is notified under subarticle (1) of the variation of a decision, it shall -
(a) notify such persons as may be prescribed by rules of court as may be made of the variation; and
(b) subject to any conditions which may be prescribed by such rules, vary the registration.
(4) The Court of Appeal may also, on the application of any per son a pp ear in g to t he cou r t to have an intere st in the
matt er, cancel or vary the registration if it is satisfied that the decision has been revoked or, as the case may be, varied by
an authority in the Contracting State in which it was made.
Variation and revocation of registered decisions.
Cap. 12.
21. Where an application has been made to the Court of Appeal fo r th e regi st rati on o f a deci si on u nder article 18 or for the enforcement of such a decision, the court may, at any time before the application is determined, give such interim directions as it thin ks fi t for the purpose of s ecuring the welfare of the child concerned or of preventing changes in the circumstances relevant t o the determinat ion of th e app licatio n or, i n the case of an application for registration, to the determination of any subsequent application for the enforcement of the decision.
(a) an application has been made for the registration of a decision in respect of the child under article 18 (other than a decision to which subarticle (3) applies) or that such a decision is registered; and
Enforcement of decisions.
Interim powers.
Suspension of court’s powers.
(b) the decision was made in proceedings commenced before the proceedings which are pending,
th e powers o f th e co urt with r e sp ect to th e child in th ose proceedings shall be re stricted as mentioned in subarticle (2)
unless, in the case of an application for registration, the application is refused.
(2) Where subarticle (1) applies the court shall not, in the case of custody proceedings, make, vary or revoke any custody order.
(3) The decision referred to in subarticle (1) above is a decision which is only a decision relating to custody within the meaning
of article 18 by virtue of being a decision relating to rights of access.
(4) Article 10(2)(b) of the Convention shall be construed as referring to custody proceedings within the meaning of this Act.
Reports. 23. Where the Director responsible for welfare is requested to make enquiries about a child under Article 15(1) of the Convention he may -
(a) request any person to make a report to him in writing with respect to any matter relating to the child concerned
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 any such request shall be duly complied with.
Proof of documents and evidence.
(2) For the purposes of subarticle (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) In any proceedings under this Part of this Act any such document as is mentioned in Article 13 of the Convention, or
a certified copy of any such document, shall be sufficient evidence of anything stated in it.
Decisions of
Maltese courts.
25. (1) Where a person on whom any rights are conferred by a decision relating to custody made by a court in Malta makes an application
to the Director responsible for welfare under Article 4 of the Conv en tio n wit h a v i ew t o secu rin g i t s recogn iti on or
enforcement in another Contracting State, the said Director may require the court which made the decision to furnish him with all
or any of the documents referred to in Article 13 (1) (b), (c) and (d) of the Convention.
(2) Where in any custody proceedings a court in Malta makes a decision relating to a child who has been removed from Malta, the
court m a y also, on an application made by any person for the purposes of Article 12 of the Convention, declare the removal to
have been u n lawfu l if it is sati sfied that the app licant has an
interest in the matter and that the child has been taken from or sent or kept out of Malta without the consent of the person (or,
if more than one, all the persons) having the right to determine the child’s place of residence in Malta.
(3) In this article "decision relating to custody" has the same meaning as in the Convention.
26. (1) The Rule-Making Board set up under article 29 of the Code of Or ganizat i on and Civ il Pro c edure may make su ch provision for giving effect to this Part of this Act as appears to that authority to be necessary or expedient.
(2) Without prejudice to the generality of subarticle (1), rules of court may make provision -
(a) with respect to the procedure on applications to a court under any provision of this Part of this Act and with respect to
the documents and information to be furnished and the notices to be given in connection with any such application;
(b) for the giving of directions requiring the disclosure of information about any child who is the subject of proceedings
under this Part of this Act and for safeguarding its welfare.
(3) The Minister responsible for justice may by regulations under this subarticle establish the fees payable in the registry
of the courts in relation to the filing of judicial acts in connection with any procedure under this Part of this Act:
Provided that until such fees are so established by the Minister, the fees contained in the Code of Organization and Civil Procedure shall apply.
PART III
Rules of court. Amended by: VI. 2001.33.
Cap. 12.
Cap. 12.
Termination of existing custody
(a) an order is made for the return of a child under Part I
of this Act; or
(b) a decision with respect to a child (other than decisions to which subarticle (2) applies) is registered under article 18,
any custody order inconsistent with such order or decision relating to him shall cease to have effect.
(2) The decision referred to in subarticle (1)(b) above is a decision which is only a decision relating to custody within the meaning of article 18 by virtue of being a decision
relating to rights of access.
orders, etc.
Expenses.
Ratification of
Treaties.
SCHEDULES
FIRST SCHEDULE [Article 3(1)]
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.
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 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.
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.
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 withou t delay transm i t the appli
c ation to th e Cen t ral Auth ority 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 de lay. If a reply is received
by the Central Authority of the r equested St ate, that Authority shall transm it 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 comm encement 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 th e 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 m ay 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 S t ate may t a ke notice directl y of the law of, and o f judici al 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 f o r the recogn itio n of fo reig n decisio n s whi c h wo uld other w ise 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 th e Conv ent ion, wh ere su ch a decision or determi nat ion 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 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 Centra l 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.
Article 22
No security, bond or deposit, however described, shall be required to gua r antee the payment of costs and e x pe ns es
in the ju dicial or admi nistrativ e
proceedings falling within the scope of this Convention.
Article 24
Any application, communication or other document sent to the Central Authority of the requested State shall be in th e original lang uage, and shall be acco mp an ied b y a transl at ion int o t h e offi ci al lan guage or one o f t h e offi cial 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 expen s es of t h e p r oc eedin gs o r, w h
ere 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.
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 t e rms of th is Co nvent io n, t o g e t h er w i t h d o cumen t s and any ot her inf o rmati o n
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.
SECOND SCHEDULE
[Article 14(2)]
Article 1
For the purposes of this Convention:
(a) "child" means a person of any nationality, so long as he is under 16 years of age and has not the right to
decide on his own place of residence under the law of his habitual residence, the law of his nationality or the
internal law of the State addressed;
(b) "authority" means a judicial or administrative authority;
(c) "decision relating to custody" means a decision of an authority in so far as it relates to the care of the person of
the child, including the right to decide on the place of his residence, or to the right of access to him;
(d) "improper removal" means the removal of a child across an international frontier in breach of a
decision relating to his custody which has been given in a Contracting State and which is enforceable in such a State; "improper
removal" also includes:
(i) the failure to return a child across an international frontier at the end of a period of the exercise of the right of access
to this child or at the end of any other temporary stay in a territory other than that where the custody is exercised;
(ii) a removal which is subsequently declared unlawful within the meaning of Article 12.
Article 4
(1) Any person who has obtained in a Contracting State a decision relating to the custody of a child and who wishes to have that
decision recognised or enforced in another Contracting St ate may submit an application for this purpose to the
Central Authority in any Contracting State.
(2) The application shall be accompanied by the documents mentioned in
Article 13.
(3) The Central Authority receiving the application, if it is not the Central Authority in the State addressed, shall
send the documents directly and without delay to that Central Authority.
(4) The Central Authority receiving the application shall keep the applicant informed without delay of the progress of his
application.
Article 5
(1) The Central Authority in the State addressed shall take or cause to be taken with out delay all step s which it consider s
to be appropriate, if necessary by instituting proceedings before its competent authorities, in order -
(a) to discover the whereabouts of the child;
(b) to avoid, in particular by any necessary provisional measures, prejudice to the interests of the child or of the applicant;
(c) to secure the recognition or enforcement of the decision;
(d) to secure the delivery of the child to the applicant where enforcement is granted;
(e) to inform the requesting authority of the measures taken and their results.
(2) Where the Central Authority in the State addressed has reason to believe that the child is in the territory of another Contracting
State it shall send the documents directly and without delay to the Central Authority of that State.
(3) With the exception of the cost of repatriation, each Contracting State undertakes not to claim any payment from
an applicant in respect of any measures taken under paragraph (1) by the Central Authority of that State on the applicant’s behalf,
including the costs of proceedings and, where applicable, the costs incurred by the assistance of a lawyer.
(4) If recognition or enforcement is refused, and if the Central Authority of the State addressed considers that it should comply
with a request by the applicant to bring in that State proceedings concerning the substance of the case, that authority shall use
its best endeavours to secure the representation of the applicant in the proceedings under conditions no less favourable than those
available to a person who is resident in and a national of that State and for this purpose it may, in particular, institute proceedings
before its competent authorities.
Article 7
A decision relating to custody given in a Contracting State shall be recognised and, where it is enforceable in the State of origin, made enforceable in every other Contracting State.
Article 9
(1) [Recognition and enforcement may be refused] if -
(a) in the case of a decision given in the absence of the defendant or his legal representative, the defendant was not duly
served with the document which instituted the proceedings or an equivalent document in sufficient time to enable him to arrange
his defence; but such a failure to effect service cannot constitute a ground for refusing recognition or
enforcement where service was not effected because the defendant had concealed his whereabouts from the person who instituted
the proceedings in the State of origin;
(b) in the case of a decision given in the absence of the defendant or his legal representative, the competence of the authority
giving the decision was not founded -
i. on the habitual residence of the defendant; or
ii. on the last common habitual residence of the child’s parents, at least one parent being still habitually resident there;
or
iii. on the habitual residence of the child;
(c) the decision is incompatible with a decision relating to custody which became enforceable in the State addressed before the removal
of the child, unless the child has had his habitual residence in the territory of the requesting State for one year before his removal.
(3) In no circumstances may the foreign decision be reviewed as to its substance.
Article 10
(1) [Recognition and enforcement may also be refused] on any of the following grounds:
(a) if it is found that the effects of the decision are manifestly incompatible with the fundamental principles of the law relating
to the family and children in the State addressed;
(b) if it is found that by reason of a change in the circumstances including the passage of time but not including a mere change in
the residence of the child after an improper removal, the effects of the original decision are manifestly no longer in accordance
with the welfare of the child;
(c) if at the time when the proceedings were instituted in the State of origin -
i. the child was a national of the State addressed or was habitually resident there and no such connection existed with the
State of origin;
ii. the child was a national both of the State of origin and of the State addressed and was habitually resident in the State addressed;
(d) if the decision is incompatible with a decision given in the State addressed or enforceable in that State after being
given in a third State, pursuant to proceedings begun before the submission of the request for recognition or enforcement, and if
the refusal is in accordance with the welfare of the child.
(2) Proceedings for recognition or enforcement may be adjourned on any of the following grounds:
(a) if an ordinary form of review of the original decision has been commenced;
(b) if proceedings relating to the custody of the child, commenced before the proceedings in the State of origin were instituted,
are pending in the State addressed;
(c) if another decision concerning the custody of the child is the subject of proceedings for enforcement or of any other proceedings
concerning the recognition of the decision.
Article 11
(1) Decisions on rights of access and provisions of decisions relating to custody which deal with the rights of access shall be
recognised and enforced subject to the same conditions as other decisions relating to custody.
(2) However, the competent authority of the State addressed may fix the conditions for the implementation and exercise
of the right of access taking into account, in particular, undertakings given by the parties on this matter.
(3) Where no decision on the right of access has been taken or where recognition or enforcement of the decision relating
to custody is refused, the Central Authority of the St at e ad dressed m a y ap ply to its competent aut horiti es for a decision
on the right of access if the person claiming a right of access so requests.
Article 12
Where, at the time of the removal of a child across an international frontier, there is no enforceable decision given in a Contracting State relating to his custody, the provisions of this Convention shall apply to any subsequent decision, relating to the cu st ody of th at chi l d an d d eclari ng t h e remo val t o b e unl awfu l, giv e n i n a Contracting State at the request of any interested person.
Article 13
(1) A request for recognition or enforcement in another Contracting State of a decision relating to custody shall be accompanied
by -
(a) a document authorising the Central Authority of the State addressed to act on behalf of the applicant or to designate another
representative for that purpose;
(b) a copy of the decision which satisfies the necessary conditions of authenticity;
(c) in the case of a decision given in the absence of the defendant or his legal representative, a document which establishes that
the defendant was duly served with the document which instituted the proceedings or an equivalent document;
(d) if applicable, any document which establishes that, in accordance with the law of the State of origin, the decision is enforceable;
(e) if possible, a statement indicating the whereabouts or likely whereabouts of the child in the State addressed;
(f) proposals as to how the custody of the child should be restored.
Article 15
(1) Before reaching a decision under paragraph (1) of Article 10, the authority concerned in the State addressed -
(a) shall ascertain the child’s views unless this is impracticable having regard in particular to his age and understanding;
and
(b) may request that any appropriate enquiries be carried out.
(2) The cost of enquiries in any Contracting State shall be met by the authorities of the State where they are carried out.
Requests for enquiries and the results of enquiries may be sent to the authority concerned through the central authorities.
THIRD SCHEDULE
(Article 13)
Reservations
(1) The Government of Malta declares that it shall not be bound to assume any costs resulting from the participation of legal
counsel or advisers or from court proceedings, except in so far as those costs may be covered by legal aid.
(2) In accordance with Article 24 of the Convention, Malta reserves the right to accept translations of the original documents
only in English.
FOURTH SCHEDULE
[Article 14(2)]
Reservation
In accordance with Article 17, paragraph 1 of the Convention, the Government of Malta reserves the right to refuse recognition and enforcement of decisions relating to custody, in cases covered by Articles 8 and 9 or either of these Articles, on any of the grounds provided under Article 10, paragraph 1(a), (b), (c) and (d).
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