Iceland: Act No. 160 of 1995, on the Recognition and Enforcement of Foreign Decisions on the Custody of Children and the Return of Abducted Children, etc.
|Publisher||National Legislative Bodies / National Authorities|
|Publication Date||27 December 1995|
|Cite as||Iceland: Act No. 160 of 1995, on the Recognition and Enforcement of Foreign Decisions on the Custody of Children and the Return of Abducted Children, etc. [Iceland], 27 December 1995, available at: http://www.refworld.org/docid/3ae6b520c.html [accessed 31 January 2015]|
|Comments||This is the official translation.|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Chapter I. Scope
Articles 3-10, Article 13, Article 14, paragraph 1 of Article 16, Article 17, Article 18, paragraph 1 of Article 19, Article 21, Article 22 and paragraph 1 of Article 23 of this Act shall apply to dealings between Iceland and states which are members of the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children done at Luxembourg on 20th May 1980 (hereinafter referred to as the European Convention). The aforementioned Articles do not apply regarding Denmark, Finland, Norway or Sweden to the extent that special rules apply to dealings between Iceland and those states.
Articles 3-5, Articles 11-13, Articles 15-18, paragraph 2 of Article 19 and Articles 20-23 of this Act shall apply to dealings between Iceland states which are signatories to the Convention on the Civil Aspects in International Child Abduction done at The Hague on 25th October 1980 (hereinafter referred to as the Hague Convention).
The Minister of Justice may decide that this Act shall be applied to dealings between Iceland and states which are not members of the European Convention or signatories to the Hague Convention.
This Act shall apply to children under the age of 16.
For the purposes of this Act, the term "decision" refers to judgements, rulings and other decisions taken by judicial or administrative authorities, and also to settlements made in court and settlements that have been sanctioned by administrative authorities.
Chapter II. Central Authorities.
The Ministry of Justice is the central authority for the purposes of the European Convention and the Hague Convention. As the central authority, the ministry shall:
1.receive applications made on the basis of the conventions and transmit them to the relevant administrative authorities,
2.co-operate with central authorities in other states which are members of or signatories to the conventions, and
3.carry out the other duties which central authorities are required to carry out under the conventions.
Chapter III.Recognition and Enforcement under the European Convention.
A decision on custody of, place of residence of, or right of access to, a child taken in a state which is a member of the European Convention shall be recognized in Iceland. In response to an application, it shall be permitted to enforce such a decision in Iceland if it is permitted to enforce it in the state where it was taken (the State of origin).
If no decision under paragraph 1 which could be enforced in the State of origin had been taken at the time when the child was taken to another country, then any decision taken in a Contracting State at a later date shall be regarded as the equivalent of a decision under paragraph 1 if it states that the removal of the child was improper.
An application for recognition or enforcement of a decision shall be rejected if:
1.it is manifestly not in conformity with the fundamental principles of Iceland legislation on the legal status of families and children,
2.the decision is, in the light of changed circumstances, manifestly no longer in accordance with the best interests of the child;
3.the child was an Icelandic citizen, or was habitually resident in Iceland, when the case was brought before a judicial authority in the State of origin, or when the administrative authorities there received the application, without the child having had comparable connections with that state, or if he held citizenship of both the State of origin and Iceland and was habitually resident in Iceland,
4.the child has the right to determine his place of residence himself under the laws of the state where he holds citizenship or is habitually resident, or
5.the decision is incompatible with a decision that has been taken in Iceland in a case which was initiated before the application for recognition or enforcement was submitted, providing that rejection is considered in the best interests of the child. In this connection, a decision taken in a third state shall have the same validity as a decision taken in Iceland, providing it can be enforced in Iceland.
A decision taken in the absence of the defendant may only be recognized or enforced if:
1.the defendant himself was demonstrably summonsed to appeal before the relevant judicial or administrative authority with sufficient notice to enable him to defend his interests, or if this was not possible because the defendant concealed his whereabouts from the plaintiff and
2.the judicial or administrative authority which took the decision was competent to do so in terms of the place of habitual residence of the defendant, the last common place of habitual residence of the parents of the child, providing that one of them is still habitually resident there, or the place of habitual residence of the child.
Recognition or enforcement of a decision may be deferred by a ruling if:
1.an appeal against the decision has been lodged with a higher judicial or administrative authority in the State of origin in accordance with the ordinary rules applying to appeals,
2.proceedings regarding custody of, the place of residence of, or the right of access to, the child which were initiated before the proceedings in the State of origin are in progress in Iceland, or
3.other proceedings regarding recognition or enforcement of another decision on custody of, the place of habitual residence of, or the right of access to, the child are in progress.
In a case involving the enforcement of a decision on right of access, a district commissioner may take a decision on the substance of the right of access and how it is to be applied. In accordance with the provisions of the Children's Act, an appeal may be lodged with the Ministry of Justice against a decision taken by a district commissioner. The ordinary provisions of the Enforcement Procedures Act shall apply to the review of other decisions taken by a district commissioner regarding enforcement measures.
Chapter IV.Return of Children under the Hague Convention.
A child who has been wrongfully removed to Iceland, or is wrongfully retained in Iceland, shall, in response to an application, be returned to the person who has the right to make the application, if the child was habitually resident in a Contracting state immediately prior to his removal or retention. Removal or retention of a child is considered to be wrongful if:
1.such conduct violates the right of the custodial party or another party, irrespective of whether he exercises that right jointly or alone, to care for the child under the laws of the state in which the child was habitually resident immediately prior to his removal or retention, and
2.the party concerned actually exercised that right when the child was removed or at the time he was retained, or would have exercised it if the wrongful conduct had not taken place.
The return of a child may be refused if:
1.more than one year elapsed between the removal or retention of the child and the receipt by a district court of the application for this return, providing that the child has adapted to his new circumstances,
2.there is a grave risk that return would cause the child psychological or physical harm, or would otherwise place the child in an intolerable position,
3.the child is opposed to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his views, or
4.return of the child is not compatible with the basic principles pertaining in Iceland to the protection of human rights.
Where no provisions are made under this chapter, procedure regarding applications for enforcement of decisions under the European Convention or the Hague Convention shall be subject to the Enforcement Procedures Act, with the condition that an application for enforcement shall in all cases be treated by the judicial authority under Chapter 13 of that act.
The provisions of Article 63 of the Children's Act concerning court sessions and of Article 75 of the same act concerning the implementation of decisions relating to custody shall apply to the procedure in cases under this Act when a decision under the European Convention is enforced or a child is returned under the Hague Convention.
An application for enforcement under the European Convention shall provide information on the probable whereabouts of the child in Iceland and propose a method of returning the child.
The application shall be accompanied by a certified copy of the decision and a document confirming that the conditions of Article 8 for recognition and enforcement have been met if the decision was taken in the absence of the defendant. In addition, a document shall be submitted stating that the decision is enforceable in the State of origin.
An application for the return of a child under the Hague Convention shall provide information about the applicant, the child and the person alleged to have removed or retained the child. The application shall state the child's date of birth and probable whereabouts in Iceland. The application shall be supported with reasons.
The application shall be accompanied by the documents on which it is based.
In processing an application for return under the Hague Convention, a district court judge may decide to require the submission of a declaration by an authority in the state in which the child was habitually resident immediately prior to his removal or retention stating that the removal or retention was wrongful. However, this shall only apply where it is possible to obtain such a declaration.
Cases concerning the enforcement of decisions under the European Convention and the return of children under the Hague Convention shall be processed as quickly as possible.
If no decision on the return of a child under the Hague Convention has been taken within six weeks of the receipt of an application by a district court, the court shall explain the reasons for the delay if the applicant requests it to do so.
Before taking a decision on the enforcement of a decision under the European Convention or the return of a child under the Hague Convention, the district court judge shall ascertain the views of the child if he has attained the age and degree of maturity at which it is appropriate to take account of his views. The provisions of paragraph 4 of Article 34 of the Children's Act shall apply when the child's views are ascertained.
When processing a case under the European Convention or the Hague Convention, the district court judge may, if requested, and if need demands, decide that the child shall be placed with one of the parents or in a neutral place through the agency of, and under the supervision of, the child welfare authorities. Such a decision, expressed in the form of a ruling, shall remain valid until the case is resolved. Such a ruling may include provisions on the parents' right of access to the child during the time that the child is in care, and set specific conditions relating to access.
Appeals may be lodged with the Supreme Court against rulings under paragraph 1.
The Treasury shall pay expenses incurred by the applicant in the processing of a case in Iceland in connection with the enforcement of a decision under the European Convention, excluding expenses arising from the removal of the child from Iceland.
The Treasury shall pay expenses incurred by the applicant in the processing of a case in Iceland in connection with the return of a child under the Hague Convention to the extent that these costs are not recovered from the applicant.
Chapter VI.Miscellaneous Provisions.
When an application is submitted for the return of a child under the Hague Convention, no decision shall be taken in Iceland regarding the custody or fostering of the child until a final decision has been taken on the application for the child's return.
If the central authorities dealing with a custody or fostering case in Iceland reveal that a child is unlawfully resident in Iceland (cf. Paragraph 2 of Article 11) without an application for his return having been submitted under paragraph 1 of Article 11, then no decision shall be taken in the custody or fostering case until a suitable period has passed in which such an application can be submitted.
At the demand of the custodial party who exercises sole custody of a child, the Ministry of Justice may decide that a child who is habitually resident in Iceland has been improperly removed to another state, or that his retention in another state is improper.
In an action for the termination of joint custody, a court or the Ministry of Justice, depending on where the action is being handled, may, at the request of a custodial party, deliver a ruling stating that the child has been improperly removed to another state or that his retention in another state is improper.
A ruling under paragraphs 1 and 2 may be delivered even if it has not been possible to serve a writ, or demand, on the person against whom the demand is directed, or make him aware of it because his whereabouts are unknown and it is not possible to obtain any information about him.
An appeal may be lodged with the Supreme Court against a ruling by a district court under this Article.
The Minister of Justice may issue further provisions on the application of this Act in the form of regulations.
This Act shall enter into force immediately.
The provisions of the Hague Convention shall only apply to improper removal or retention of a child occurring after the validation of the Convention regarding the state in which the child was habitually resident immediately prior to his removal or retention.