You do not
have existing contact orders
You may be able to make an application under Article 21 of the
Hague Convention. You should seek advice from the ICACU, especially
if you are also pursuing a Hague Convention return application
as it is important to ensure that nothing you do could be understood
to be acquiescence to the child remaining in the country to which
they have been taken.
Contact with
your child outside the European Union in a Hague Convention Country
If
your child lives in a Hague Convention country which is outside
the European Union and you are being prevented from having contact
with them you should contact the ICACU. They will be able to provide
advice and assistance about making an application under Article
21 of the Hague Convention for contact. If you are also pursuing
a Hague Convention return application it is important to ensure
that nothing you do could be understood to be acquiescence to
the child remaining in the country to which they have been taken.
Contact with
your child in a non Hague Convention Country
If
your child lives in a country outside the European Union and that
country is not a party to the Hague Convention you will need to
commence legal proceedings in the country in which your child
is living. If you have existing British orders they will not be
enforceable in the country in which your child is living but such
orders may be of evidentiary value in the foreign proceedings.
How contact
cases are handled
Outgoing contact
cases
Outgoing
contact cases are those where children are living outside England
and Wales. Cases which come under either the Hague Convention,
the Revised Brussels II Regulation or the European Convention
will be handled by the ICACU. In outgoing cases the ICACU discusses
the circumstances with the applicant or their solicitor and may
ask them to fill in an application (questionnaire) . The ICACU
may also ask the parent to make a written statement, and provide
copies of any court orders. It is useful to provide a recent photo
of the child. An application is then prepared on the basis of
the material provided. That application and supporting documents
is sent off, with translations if necessary, to the Central Authority
of the country in which the child now lives. Thereafter, the ICACU
will monitor the progress of the case, liase with the Central
Authority of the requested state and the applicant, give advice
about English law and do all that it can to help to bring the
case to a successful conclusion. There is no charge for the services
of the ICACU.
If your case does
not come under the Conventions or the Regulation you will need
to secure the services of a solicitor in the country in which
your child is living. The Foreign and Commonwealth Office (FCO)
will be able to offer assistance in locating a solicitor and may
be able to provide similar assistance to that provided in the
case of abduction to a non Hague Convention country. Contact details
for the FCO are provided in section 14 of this booklet.
Incoming contact
cases
Incoming
contact cases are those where children are living in England and
Wales. The assistance which can be offered to applicants seeking
to establish or enforce rights of access under the Hague Convention
is limited in England and Wales. The reason for this is to be
found in the case of Re G (a Minor) (Hague Convention: Access)
[1993] 1 FLR 669 (Court of Appeal: 9th December, 1992). In that
case the Court of Appeal held that Article 21 of the Hague Convention
(which is incorporated into English law by Schedule 1 of the Child
Abduction and Custody Act 1985) gives no power to a court to determine
issues or make orders, and that, therefore, those wishing to apply
for access must apply for a "contact order" under the
usual domestic law provisions contained in section 8 of Children
Act 1989.
A circular dated 5
March, 1993 (reported at [1993] 1 FLR 804) explains that the duty
of the ICACU in access cases under the Hague Convention is limited
to finding solicitors who are willing to act for the applicant
and assisting them to apply for legal aid.
Once solicitors have
accepted an applicant's instructions, the case will be conducted
as if it were an ordinary application for contact under the Children
Act. This means that no special priority is accorded to these
cases and no special provisions are made for the fact that the
applicant is overseas.
Although it is possible
to make an application for contact under the Hague Convention
to any level of court competent to deal with family proceedings,
it is generally accepted that, because of their substantial foreign
element, contact applications arising from Article 21 should be
heard and determined in the High Court.
Costs
Except
in a very few countries such as Australia and New Zealand, legal
assistance is not available for access cases under the Hague Convention.
Under the Revised Brussels II Regulation you will be eligible
for legal assistance in the European Country in which your child
is living if you have qualified for legal assistance in the United
Kingdom and vice versa. This is set out in article 50 of the Revised
Brussels II Regulation. No payment for legal costs is required
for applications made under the European Convention. Legal assistance
is not available in other countries unless you qualify under the
domestic rules for the provision of legal aid in the country to
which you are applying.
