CHILD ABDUCTION AND CUSTODY [ CAP. 410.  1
CHAPTER 410
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.
1st August, 2000
ACT XIII of 1999 as amended by Act VI of 2001.
Short title.
Act.
Interpretation.
"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
International Child Abduction
The Hague 
Convention.
3. (1) In this Part of this Act "the Convention" means the
Convention on the Civil Aspects of International Child Abduction
which was signed at The Hague on the 25th October, 1980 and the
relevant Articles of which Convention are set out in the First
Schedule to this Act.
(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.
Contracting States.
of law in Malta under this Part of this Act, the Contracting States
other than Malta shall be those for the time being specified by the
Minister responsible for foreign affairs by an order in the Gazette
under this article.
(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 Contracting State under Article 39 or 40 of the
Convention, references to that State in subarticles (1) and (2) above
2 [ CAP. 410. CHILD ABDUCTION AND CUSTODY
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
outside Malta may be addressed to the office of the Director
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
the meaning of Article 3 of the Convention, he may, without
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
thinks fit for the purpose of securing the welfare of the child
concerned or of preventing changes in the circumstances relevant
to the determination of the application.
Reports. 8. Where the Director responsible for welfare is requested to
provide information relating to a child under 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.
9. (1) For the purposes of Article 14 of the Convention a
decision or determination of a judicial or administrative authority
outside Malta may be proved by a duly authenticated copy of the
decision or determination; and any document purporting to be such
a copy shall be deemed to be a true copy unless the contrary is
shown.
(2) For the purposes of 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,
or a certified copy of any such document, shall be sufficient
evidence of anything stated in it.
CHILD ABDUCTION AND CUSTODY [ CAP. 410.  3
Declarations by the 
First Hall of the 
Civil Court or any 
other designated 
court. 
10. The First Hall of the Civil Court or any other court
designated by order by the Minister 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, Malta was wrongful within the meaning of Article 3 of the
Convention.
Suspension of 
court’s powers in 
cases of wrongful 
removal.
11. The reference in Article 16 of the Convention to deciding
on the merits of rights of custody shall be construed as a reference
to -
Cap. 16.
( 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.
Rules of Court.
Cap. 12.
12. The Rule-Making Board established under article 29 of the
Code of Organization and Civil Procedure may make such
provision for giving effect to this Part of this Act as appears to it to
be necessary or expedient.
Reservations.
the Third Schedule to this Act) as is mentioned in the third
paragraph of Article 26 of the Convention, the costs mentioned in
that paragraph shall not be borne by any Minister or any authority
in Ma1ta.
(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
Recognition and Enforcement of Custody Decisions
The European 
Convention.
14. (1) In this Part of this Act "the Convention" means the
European Convention on Recognition and Enforcement of
Decisions concerning Custody of Children and on the Restoration
of Custody of Children which was signed in Luxembourg on 20th
May, 1980, and the relevant Articles of which Convention are set
out in the Second Schedule to this Act.
(2) Subject to the provisions of this Part of this Act, the
provisions of that Convention set out in the Second Schedule to this
Act (which include Articles 9 and 10 as they have effect 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.
Contracting States.
of law in Malta under this Part of this Act, the Contracting States
other than Malta shall be those for the time being specified by the
Minister responsible for foreign affairs by an order in the Gazette
under this article.
(2) Such order shall specify the date of the coming into force of
the Convention as between Malta and any State specified in the
4 [ CAP. 410. CHILD ABDUCTION AND CUSTODY
order.
(3) Where the Convention applies, or applies only, to a
particular territory or particular territories specified by a
Contracting State under Article 24 or 25 of the Convention,
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
authority shall be discharged by the Director responsible for
welfare.
(2) Any application made under the Convention by or on behalf
of a person outside Malta may be addressed to the Director
responsible for welfare.
Recognition of 
decisions.
17. (1) Articles 7 and 12 of the Convention shall have effect
in accordance with this article.
(2) A decision to which either of those Articles applies which
was made in a Contracting State other than Malta shall be
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
removal of the child are to his improper removal within the
meaning of the Convention.
Registration of 
decisions.
18. (1) A person on whom any rights are conferred by a
decision relating to custody made by an authority in a Contracting
State other than Malta may make an application for the registration
of the decision in the registry of the Court of Appeal.
(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
CHILD ABDUCTION AND CUSTODY [ CAP. 410.  5
this Act is pending.
(5) In this article "decision relating to custody" has the same
meaning as in the Convention.
Variation and 
revocation of 
registered 
decisions.
19. (1) Where a decision which has been registered under
article 18 above is varied or revoked by an authority in the
Contracting State in which it was made, the person on whose behalf
the application for registration of the decision was made shall
notify the Court of Appeal of the variation or revocation.
(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
Cap. 12.
( 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
person appearing to the court to have an interest in the matter,
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.
Enforcement of 
decisions.
20. Where a decision relating to custody has been registered
under article 18, the Court of Appeal shall have the same powers
for the purpose of enforcing the decision as if it had been made by
it; and proceedings for or with respect to enforcement may be taken
accordingly.
Interim  powers.
for the registration of a decision under 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
thinks fit for the purpose of securing the welfare of the child
concerned or of preventing changes in the circumstances relevant
to the determination of the application or, in the case of an
application for registration, to the determination of any subsequent
application for the enforcement of the decision.
Suspension of 
court’s powers.
22. (1) Where it appears to any court in which such
proceedings as are mentioned in subarticle (2) are pending in
respect of a child that -
( 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
6 [ CAP. 410. CHILD ABDUCTION AND CUSTODY
( b ) the decision was made in proceedings commenced
before the proceedings which are pending,
the powers of the court with respect to the child in those
proceedings shall be restricted 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.
24. (1) In any proceedings under this Part of this Act a
decision of an authority outside Malta may be proved by a duly
authenticated copy of the decision; and any document purporting to
be such a copy shall be deemed to be a true copy unless the
contrary is shown.
(2) For the purposes of 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 Convention with a view to securing its recognition 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 may also, on an application made by any person for the
purposes of Article 12 of the Convention, declare the removal to
have been unlawful if it is satisfied that the applicant has an
CHILD ABDUCTION AND CUSTODY [ CAP. 410.  7
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.
Rules of court.
Amended by:
VI. 2001.33.
Cap. 12.
26. (1) The Rule-Making Board set up under article 29 of the
Code of Organization and Civil Procedure may make such
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:
Cap. 12.
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
Supplementary
Termination of 
existing custody 
orders, etc.
27. (1) Where -
( 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.
Expenses.
for the purposes of this Act shall be paid out of money provided by
the House of Representatives for the purpose.
8 [ CAP. 410. CHILD ABDUCTION AND CUSTODY
Ratification of 
Treaties.
29. By virtue of this Act, the Government of Malta is
authorised to ratify the Convention on the Civil Aspects of
International Child Abduction which was signed at The Hague on
the 25th October, 1980, and the European Convention on
Recognition and Enforcement of Decisions Concerning Custody of
Children signed in Luxembourg on the 20th May, 1980.
CHILD ABDUCTION AND CUSTODY [ CAP. 410.  9
SCHEDULES
FIRST SCHEDULE
[Article 3(1)]
CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD 
ABDUCTION
CHAPTER 1 - SCOPE OF THE CONVENTION
Article 3
The removal or the retention of a child is to be considered wrongful where -
( a ) it is in breach of rights of custody attributed to a person, an institution
or any other body, either jointly or alone, under the law of the State in
which the child was habitually resident immediately before the removal
or retention; and
( b ) at the time of 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.
CHAPTER II - CENTRAL AUTHORITIES
Article 7
Central Authorities shall co-operate with each other and promote co-
operation amongst the competent authorities in their respective States to secure the
prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all
appropriate measures -
( a ) to discover the whereabouts of a child who has been wrongfully
removed or retained;
( b ) to prevent further harm to the child or prejudice to interested parties by
taking or causing to be taken provisional measures;
( c ) to secure the voluntary return of the child or to bring about an amicable
resolution of the issues;
( d ) to exchange, where desirable, information relating to the social
10 [ CAP. 410. CHILD ABDUCTION AND CUSTODY
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.
CHAPTER III - RETURN OF CHILDREN
Article 8
Any person, institution or other body claiming that a child has been removed
or retained in breach of custody rights may apply either to the Central Authority of
the child’s habitual residence or to the Central Authority of any other Contracting
State for assistance in securing the return of the child.
The application shall contain -
( a ) information concerning the identity of the applicant, of the child and of
the person alleged to have removed or retained the child;
( b ) where available, the date of birth of the child;
( c ) the grounds on which the applicant’s claim for return of the child is
based;
( d ) all available information relating to the whereabouts of the child and the
identity of the person with whom the child is presumed to be.
The application may be accompanied or supplemented by -
( e )  an authenticated copy of any relevant decision or agreement;
( f ) a certificate or an affidavit emanating from a Central Authority, or other
competent authority of the State of the child’s habitual residence, or
from a qualified person, concerning the relevant law of that State;
( g ) any other relevant document.
Article 9
If the Central Authority which receives an application referred to in Article
8 has reason to believe that the child is in another Contracting State, it shall directly
and without delay transmit the application to the Central Authority of that
Contracting State and inform the requesting Central Authority, or the applicant, as
the case may be.
Article 10
The Central Authority of the State where the child is shall take or cause to
be taken all appropriate measures in order to obtain the voluntary return of the child.
CHILD ABDUCTION AND CUSTODY [ CAP. 410.  11
Article 11
The judicial or administrative authorities of Contracting States shall act
expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a
decision within six weeks from the date of commencement of the proceedings, the
applicant or the Central Authority of the requested State, on its own initiative or if
asked by the Central Authority of the requesting State, shall have the right to request
a statement of the reasons for the delay. If a reply is received by the Central
Authority of the requested State, that Authority shall transmit the reply to the
Central Authority of the requesting State, or to the applicant, as the case may be.
Article 12
Where a child has been wrongfully removed or retained in terms of Article 3
and, at the date of the commencement of the proceedings before the judicial or
administrative authority of the Contracting State where the child is, a period of less
than one year has elapsed from the date of the wrongful removal or retention, the
authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have
been commenced after the expiration of the period of one year referred to in the
preceding paragraph, shall also order the return of the child, unless it is
demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has
reason to believe that the child has been taken to another State, it may stay the
proceedings or dismiss the application for the return of the child.
Article 13
Notwithstanding the provisions of the preceding Article, the judicial or
administrative authority of the requested State is not bound to order the return of the
child if the person, institution or other body which opposes its return establishes
that-
( a ) the person, institution or other body having the care of the person of the
child was not actually exercising the custody rights at the time of
removal or retention, or had consented to or subsequently acquiesced in
the removal or retention; or
( b ) there is a grave risk that his or her return would expose the child to
physical or psychological harm or otherwise place the child in an
intolerable situation.
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
12 [ CAP. 410. CHILD ABDUCTION AND CUSTODY
that law or for the recognition of foreign decisions which would otherwise be
applicable.
Article 15
The judicial or administrative authorities of a Contracting State may, prior to
the making of an order for the return of the child, request that the applicant obtain
from the authorities of the State of the habitual residence of the child a decision or
other determination that the removal or retention was wrongful within the meaning
of Article 3 of the Convention, where such a decision or determination may be
obtained in that State. The Central Authorities of the Contracting States shall so far
as practicable assist applicants to obtain such a decision or determination.
Article 16
After receiving notice of a wrongful removal or retention of a child in the
sense of Article 3, the judicial or administrative authorities of the Contracting State
to which the child has been removed or in which it has been retained shall not decide
on the merits of rights of custody until it has been determined that the child is not to
be returned under this Convention or unless an application under this Convention is
not lodged within a reasonable time following receipt of the notice.
Article 17
The sole fact that a decision relating to custody has been given in or is
entitled to recognition in the requested State shall not be a ground for refusing to
return a child under this Convention, but the judicial or administrative authorities of
the requested State may take account of the reasons for that decision in applying this
Convention.
Article 18
The provisions of this Chapter do not limit the power of a judicial or
administrative authority to order the return of the child at any time.
Article 19
A decision under this Convention concerning the return of the child shall not
be taken to be a determination on the merits of any custody issue.
CHAPTER IV - RIGHTS OF ACCESS
Article 21
An application to make arrangements for organising or securing the
effective exercise of rights of access may be presented to the Central Authorities of
the Contracting States in the same way as an application for the return of a child.
The Central Authorities are bound by the obligations of co-operation which
are set forth in Article 7 to promote the peaceful enjoyment of access rights and the
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.
CHAPTER V - GENERAL PROVISIONS
Article 22
No security, bond or deposit, however described, shall be required to
guarantee the payment of costs and expenses in the judicial or administrative
CHILD ABDUCTION AND CUSTODY [ CAP. 410.  13
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 the original language, and shall be
accompanied by a translation into the official language or one of the official
languages of the requested State or, where that is not feasible, a translation into
French or English.
Article 26
Each Central Authority shall bear its own costs in applying this Convention.
Central Authorities and other public services of Contracting States shall not
impose any charges in relation to applications submitted under this Convention. In
particular, they may not require any payment from the applicant towards the costs
and expenses of the proceedings or, where applicable, those arising from the
participation of legal counsel or advisers. However, they may require the payment of
the expenses incurred or to be incurred in implementing the return of the child.
However, a Contracting State may, by making a reservation in accordance
with Article 42, declare that it shall not be bound to assume any costs referred to in
the preceding paragraph resulting from the participation of legal counsel or advisers
or from court proceedings, except insofar as those costs may be covered by its
system of legal aid and advice.
Upon ordering the return of a child or issuing an order concerning rights of
access under this Convention, the judicial or administrative authorities may, where
appropriate, direct the person who removed or retained the child, or who prevented
the exercise of rights of access, to pay necessary expenses incurred by or on behalf
of the applicant, including travel expenses, any costs incurred or payments made for
locating the child, the costs of legal representation of the applicant, and those of
returning the child.
Article 27
When it is manifest that the requirements of this Convention are not fulfilled
or that the application is otherwise not well founded, a Central Authority is not
bound to accept the application. In that case, the Central Authority shall forthwith
inform the applicant or the Central Authority through which the application was
submitted, as the case may be, of its reasons.
Article 28
A Central Authority may require that the application be accompanied by a
written authorisation empowering it to act on behalf of the applicant, or to designate
a representative so to act.
Article 29
This Convention shall not preclude any person, institution or body who
claims that there has been a breach of custody or access rights within the meaning of
Article 3 or 21 from applying directly to the judicial or administrative authorities of
a Contracting State, whether or not under the provisions of this Convention.
Article 30
Any application submitted to the Central Authorities or directly to the
judicial or administrative authorities of a Contracting State in accordance with the
terms of this Convention, together with documents and any other information
appended thereto or provided by a Central Authority, shall be admissible in the
14 [ CAP. 410. CHILD ABDUCTION AND CUSTODY
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)]
EUROPEAN CONVENTION ON RECOGNITION AND ENFORCEMENT OF 
DECISIONS CONCERNING CUSTODY OF CHILDREN
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 State may submit an application for this purpose to the
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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
without delay all steps which it considers 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
16 [ CAP. 410. CHILD ABDUCTION AND CUSTODY
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.
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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 State addressed may apply to its competent authorities 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 custody of that child and declaring the removal to be unlawful, given in 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.
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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 ).
