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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Family Law
Amendment (Child Protection Convention) Bill
2001
No. ,
2001
(Attorney-General)
A
Bill for an Act to implement the Convention on Jurisdiction, Applicable Law,
Recognition, Enforcement and Co-operation in respect of Parental Responsibility
and Measures for the Protection of Children, and for related
purposes
Contents
A Bill for an Act to implement the Convention on
Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in
respect of Parental Responsibility and Measures for the Protection of Children,
and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Family Law Amendment (Child Protection
Convention) Act 2001.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) Schedule 1 commences on the day on which the Child Protection
Convention enters into force for Australia.
(3) In this section:
Child Protection Convention means the Convention on
Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in
respect of Parental Responsibility and Measures for the Protection of Children,
signed at The Hague on 19 October 1996.
Subject to section 2, each Act that is specified in a Schedule to
this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
1 At the end of subsection
31(2)
Add:
Note: Division 4 of Part XIIIAA (International
protection of children) may affect the jurisdiction of the
Court.
2 At the end of paragraph
39(5)(a)
Add “or”.
3 At the end of paragraph
39(5)(b)
Add “or”.
4 After paragraph 39(5)(d)
Insert:
(da) proceedings are instituted under Division 4 of Part XIIIAA
or under regulations made for the purposes of section 111CZ; or
5 At the end of subsection
39(5A)
Add:
; or (d) proceedings are instituted under Division 4 of
Part XIIIAA or under regulations made for the purposes of
section 111CZ.
6 At the end of paragraph
39(6)(a)
Add “or”.
7 At the end of paragraph
39(6)(b)
Add “or”.
8 After paragraph 39(6)(d)
Insert:
(da) proceedings are instituted under Division 4 of Part XIIIAA
or under regulations made for the purposes of section 111CZ; or
9 At the end of subsection
42(2)
Add:
Note: Subdivision D of Division 4 of Part XIIIAA
(Applicable law) may affect the law to be applied by a court.
10 At the end of
section 61C
Add:
Note: Section 111CS may affect the attribution of
parental responsibility for a child.
11 At the end of
section 63E
Add:
Note: Division 4 of Part XIIIAA (International
protection of children) may affect the court’s power to register a
parenting plan.
12 At the end of subsection
63F(1)
Add:
Note: Section 111CT may affect the operation of the
child welfare provisions of a registered parenting plan.
13 At the end of subsection
65D(1)
Add:
Note: Division 4 of Part XIIIAA (International
protection of children) may affect the jurisdiction of a court to make a
parenting order.
14 At the end of
section 67K
Add:
(2) For the purposes of the Child Protection Convention, a person
(including the Commonwealth Central Authority) may apply to a court for a
location order.
(3) In subsection (2):
Child Protection Convention has the same meaning as in
section 111CA.
Commonwealth central authority has the same meaning as in
section 111CA.
15 Subsection 67M(2)
After “this Part”, insert “or
section 111CX”.
16 Subsection 67N(2)
After “this Part”, insert “or
section 111CX”.
17 At the end of subsection
67P(1)
Add:
; or (f) with the leave of the court that made the location
order:
(i) the Commonwealth central authority; or
(ii) a central authority or a competent authority of a Convention
country.
18 At the end of
section 67P
Add:
(3) In paragraph (1)(f):
central authority has the same meaning as in
section 111CA.
Commonwealth central authority has the same meaning as in
section 111CA.
competent authority has the same meaning as in
section 111CA.
Convention country has the same meaning as in
section 111CA.
19 At the end of subsection
67ZC(1)
Add:
Note: Division 4 of Part XIIIAA (International
protection of children) may affect the jurisdiction of a court to make an order
relating to the welfare of a child.
20 At the end of
section 69E
Add:
Note: Division 4 of Part XIIIAA (International
protection of children) has effect despite this section.
21 At the end of
section 70H
Add:
Note: Division 4 of Part XIIIAA (International
protection of children) may affect the operation of a registered overseas child
order.
22 Before section 110
Insert:
23 After section 111A
Insert:
24 After section 111B
Insert:
25 After section 111C
Insert:
(1) In this Division:
another country means a Convention country or a
non-Convention country.
Australia includes the external Territories.
central authority of a Convention country means:
(a) if there is one central authority of the Convention country under
Article 29 of the Child Protection Convention—the Convention
country’s central authority; or
(b) otherwise—the central authority designated, under Article 29 of
the Child Protection Convention, as the Convention country’s central
authority to which any communication may be addressed for transmission to the
appropriate central authority of the Convention country.
Child Protection Convention means the Convention on
Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in
respect of Parental Responsibility and Measures for the Protection of Children
done at The Hague on 19 October 1996, a copy of the English text of which
is set out in Schedule 1.
Commonwealth central authority means the Secretary of the
Attorney-General’s Department.
Commonwealth personal protection measure relating to a child
means a measure (within the meaning of the Child Protection Convention) under
this Act that is directed to the protection of the person of the
child.
Commonwealth property protection measure relating to a child
means a measure (within the meaning of the Child Protection Convention) under
this Act for appointing, or deciding the powers of, a guardian of the
child’s property.
competent authority:
(a) competent authority of Australia means an entity that
has responsibility or authority under the law in force in Australia, or part of
Australia, to take measures or make decisions about:
(i) protecting the person of a child; or
(ii) appointing or deciding the powers of a guardian of a child’s
property; and
(b) competent authority of a Convention country means an
entity that has responsibility or authority under the law in force in the
Convention country to take a foreign measure relating to a child; and
(c) competent authority of a non-Convention country means an
entity that has responsibility or authority under the law in force in the
country to take measures or make decisions about:
(i) protecting the person of a child; or
(ii) appointing or deciding the powers of a guardian of a child’s
property.
Convention country means a country, other than Australia,
that is a party to the Child Protection Convention.
country of refuge of a child means a country in which the
child is present as a refugee child.
entity includes the following:
(a) an individual;
(b) a corporation;
(c) an unincorporated body;
(d) a government authority or body;
(e) a court or tribunal.
foreign measure means:
(a) a foreign personal protection measure; or
(b) a foreign property protection measure.
foreign personal protection measure relating to a child means
a measure (within the meaning of the Child Protection Convention) taken by a
competent authority of a Convention country for protecting the person of the
child.
foreign property protection measure relating to a child means
a court order or other measure (within the meaning of the Child Protection
Convention) taken by a competent authority of a Convention country for
appointing, or deciding the powers of, a guardian of the child’s
property.
non-Convention country means a country that is not a party to
the Child Protection Convention.
parental responsibility has the same meaning as in the Child
Protection Convention.
refugee child means a child:
(a) who is a refugee; or
(b) who is internationally displaced due to disturbances occurring in his
or her country of habitual residence; or
(c) whose country of habitual residence cannot be determined.
Territory includes each external Territory.
(2) Unless the contrary intention appears, expressions used:
(a) in this Division; or
(b) in regulations made for the purposes of this Division;
have the same meaning as they have in the Child Protection
Convention.
(1) This Division has effect despite the rest of this Act, except
sections 69ZK and 111B and the regulations made for the purposes of
section 111B.
(2) This Division, except section 111CZ, has effect subject to
sections 69ZK and 111B and the regulations made for the purposes of
section 111B.
(3) Section 111CZ, and regulations made for the purposes of that
section, have effect despite sections 69ZK and 111B and the regulations
made for the purposes of section 111B.
This Subdivision applies only if an issue under this Act is whether a
court, as opposed to any of the following authorities, has jurisdiction to take
measures directed to the protection of the person of a child:
(a) a central authority or competent authority of a Convention
country;
(b) a competent authority of a non-Convention country.
(1) A court may exercise jurisdiction for a Commonwealth personal
protection measure only in relation to:
(a) a child who is present and habitually resident in Australia;
or
(b) a child who is present in Australia and habitually resident in a
Convention country, if:
(i) the child’s protection requires taking the measure as a matter
of urgency; or
(ii) the measure is provisional and limited in its territorial effect to
Australia; or
(iii) the child is a refugee child; or
(iv) a request to assume jurisdiction is made to the court by, or at the
invitation of, a competent authority of the country of the child’s
habitual residence or country of refuge; or
(v) a competent authority of the country of the child’s habitual
residence or country of refuge agrees to the court assuming jurisdiction;
or
(vi) the court is exercising jurisdiction in proceedings concerning the
divorce or separation of the child’s parents or the annulment of their
marriage (but see subsection (2)); or
(c) a child who is present in a Convention country, if:
(i) the child is habitually resident in Australia; or
(ii) the child has been wrongfully removed from or retained outside
Australia and the court keeps jurisdiction under Article 7 of the Child
Protection Convention; or
(iii) a request to assume jurisdiction is made to the court by, or at the
invitation of, a competent authority of the country of the child’s
habitual residence or country of refuge; or
(iv) a competent authority of the country of the child’s habitual
residence or country of refuge agrees to the court assuming jurisdiction;
or
(v) the child is habitually resident in a Convention country and the court
is exercising jurisdiction in proceedings concerning the divorce or separation
of the child’s parents or the annulment of their marriage (but see
subsection (2)); or
(d) a child who is present in Australia and is a refugee child;
or
(e) a child who is present in a non-Convention country, if:
(i) the child is habitually resident in Australia; and
(ii) any of paragraphs 69E(1)(b) to (e) (inclusive) applies to the child;
or
(f) a child who is present in Australia, if:
(i) the child is habitually resident in a non-Convention country;
and
(ii) any of paragraphs 69E(1)(b) to (e) (inclusive) applies to the
child.
(2) A court may only exercise jurisdiction in accordance with
subparagraph (1)(b)(vi) or (c)(v) for a Commonwealth personal protection
measure relating to a child if:
(a) one or both of the child’s parents are habitually resident in
Australia when the proceedings referred to in that subparagraph begin;
and
(b) one or both of the parents have parental responsibility for the child;
and
(c) the jurisdiction of the court to take the measure is accepted by the
parents and each other person with parental responsibility for the child;
and
(d) the exercise of jurisdiction to take the measure is in the best
interests of the child; and
(e) the proceedings on the application for divorce or separation of the
child’s parents or the annulment of their marriage have not been
finalised.
(3) Paragraphs 111CD(1)(a) to (d) are subject to the limitations in
sections 111CE, 111CF and 111CH.
A court may not, other than in a case of urgency, exercise jurisdiction
in accordance with paragraph 111CD(1)(a), (b), (c) or (d) to take a Commonwealth
personal protection measure relating to a child if:
(a) the child has been wrongfully removed from or retained outside a
Convention country; and
(b) an authority of the Convention country keeps jurisdiction under
Article 7 of the Child Protection Convention.
(1) This section applies to the exercise of jurisdiction by a court in
accordance with paragraph 111CD(1)(a), subparagraph 111CD(1)(b)(iii), (iv), (v)
or (vi) or paragraph 111CD(1)(c) or (d).
(2) The court may not exercise that jurisdiction to take a Commonwealth
personal protection measure relating to a child if:
(a) a corresponding measure has been sought from a competent authority of
a Convention country at the time of commencement of the proceedings before the
court; and
(b) any of the following applies:
(i) the child is habitually resident in the Convention country;
(ii) the child is present in the Convention country and is a refugee
child;
(iii) a request to assume jurisdiction is made to the competent authority
of the Convention country by, or at the invitation of, a competent authority of
the country of the child’s habitual residence;
(iv) a competent authority of the country of the child’s habitual
residence agrees to the competent authority of the Convention country assuming
jurisdiction;
(v) the competent authority of the Convention country is exercising
jurisdiction in proceedings concerning the divorce or separation of the
child’s parents or the annulment of their marriage (but see
subsection (3));
(vi) the child has been wrongfully removed from or retained outside the
Convention country and a competent authority of the Convention country keeps
jurisdiction under Article 7 of the Child Protection Convention.
(3) Subparagraph (2)(b)(v) only applies (subject to
subsection (4)) if:
(a) one or both of the child’s parents are habitually resident in
the Convention country when the proceedings referred to in that subparagraph
commence; and
(b) one or both of the parents has parental responsibility for the child;
and
(c) the jurisdiction of the competent authority of the Convention country
to take the measure is accepted by the parents and each other person with
parental responsibility for the child; and
(d) the exercise of jurisdiction to take the measure is in the best
interests of the child; and
(e) the proceedings on the application for divorce or separation of the
child’s parents or the annulment of their marriage have not been
finalised.
(4) Subsection (2) does not apply if the competent authority of the
Convention country has declined jurisdiction or is no longer considering taking
the measure sought.
(1) A court may accept or reject a request made under Article 8 of the
Child Protection Convention by, or at the invitation of, a competent authority
of a Convention country for the court to assume jurisdiction to take a
Commonwealth personal protection measure relating to the child.
(2) A court may order, or invite the parties to proceedings before the
court to ask, the Commonwealth central authority to do both of the following in
a way that the Commonwealth central authority considers appropriate:
(a) to request, under Article 9 of the Child Protection Convention, that a
competent authority of a Convention country agree to the court assuming
jurisdiction to take a Commonwealth personal protection measure relating to the
child;
(b) to report to the court about the outcome of the request.
(1) The court may order, or invite the parties to proceedings before the
court to ask, that the Commonwealth central authority, in a way the Commonwealth
central authority considers appropriate, request a competent authority described
in Article 8, paragraph 2, of the Child Protection Convention:
(a) to assume jurisdiction under Article 8 of the Convention for
protecting the person of the child; and
(b) as the competent authority considers necessary, to take measures to
protect the person of the child; and
(c) to report to the court about the outcome of the request.
(2) In addition, the court may make any other order it considers necessary
for an order under subsection (1).
(3) The court may accept or reject a request under Article 9 of the Child
Protection Convention made by, or at the invitation of, a competent authority of
a Convention country described in Article 8, paragraph 2 of the Convention, for
the competent authority to assume jurisdiction to take a measure for protecting
the person of the child.
(4) If the competent authority assumes jurisdiction under the request, a
court must not exercise jurisdiction in accordance with paragraph 111CD(1)(a),
subparagraphs 111CD(1)(b)(iii) to (vi) (inclusive), or paragraph 111CD(1)(c) or
(d) while the competent authority continues to exercise its
jurisdiction.
(1) A Commonwealth personal protection measure relating to a child that is
taken by a court exercising jurisdiction in accordance with subparagraph
111CD(1)(b)(i) or (ii) lapses if:
(a) a foreign personal protection measure relating to the child is taken
by a competent authority of a Convention country; and
(b) any of the following applies:
(i) the child is habitually resident in the Convention country;
(ii) the child is present in the Convention country and is a refugee
child;
(iii) a request to assume jurisdiction is made to the competent authority
of the Convention country by, or at the invitation of, a competent authority of
the country of the child’s habitual residence;
(iv) a competent authority of the country of the child’s habitual
residence agrees to the competent authority of the Convention country assuming
jurisdiction;
(v) a competent authority of the Convention country is exercising
jurisdiction in proceedings concerning the divorce or separation of the
child’s parents or the annulment of their marriage (but see
subsection (2));
(vi) the child has been wrongfully removed from or retained outside the
Convention country and a competent authority of the Convention country keeps
jurisdiction under Article 7 of the Child Protection Convention.
(2) Subparagraph (1)(b)(v) only applies if:
(a) one or both of the child’s parents are habitually resident in
the Convention country when the proceedings referred to in that subparagraph are
started; and
(b) one or both of the parents has parental responsibility for the child;
and
(c) the jurisdiction of the competent authority of the Convention country
to take the measure is accepted by the parents and each other person with
parental responsibility for the child; and
(d) the exercise of jurisdiction to take the measure is in the best
interests of the child; and
(e) the proceedings on the application for divorce or separation of the
child’s parents or the annulment of their marriage have not been
finalised.
(3) A Commonwealth personal protection measure relating to a child that is
taken by a court exercising jurisdiction in a case of urgency, in accordance
with subparagraph 111CD(1)(b)(i) or in the taking of a measure of a provisional
character in accordance with subparagraph 111CD(1)(b)(ii), lapses if:
(a) a measure for protecting the person of the child is taken by a
competent authority of a non-Convention country; and
(b) the measure is registered:
(i) in accordance with regulations made for the purposes of
section 70G; or
(ii) under a law of a State or Territory.
This Subdivision applies only if an issue under this Act is whether a
court, as opposed to any of the following authorities, has jurisdiction to
appoint, or determine the powers of, a guardian of a child’s
property:
(a) a central authority or competent authority of a Convention
country;
(b) a competent authority of a non-Convention country.
(1) A court may exercise jurisdiction for a Commonwealth property
protection measure only in relation to:
(a) a child who is habitually resident in Australia; or
(b) a child who is habitually resident in a Convention country,
if:
(i) the protection of the child’s property in Australia requires
taking the measure as a matter of urgency; or
(ii) the measure is provisional and limited in its territorial effect to
property in Australia; or
(iii) a request to assume jurisdiction is made to the court by, or at the
invitation of, a competent authority of the country of the child’s
habitual residence or country of refuge; or
(iv) a competent authority of the country of the child’s habitual
residence or country of refuge agrees to the court assuming jurisdiction;
or
(v) the child has been wrongfully removed from or retained outside
Australia and the court keeps jurisdiction under Article 7 of the Child
Protection Convention; or
(vi) the court is exercising jurisdiction in proceedings concerning the
divorce or separation of the child’s parents or the annulment of their
marriage (but see subsection (2)); or
(c) a child who is present in Australia and is a refugee child;
or
(d) a child who is present in a non-Convention country, if:
(i) the child is habitually resident in Australia; and
(ii) any of paragraphs 69E(1)(b) to (e) (inclusive) applies to the child;
or
(e) a child who is present in Australia, if:
(i) the child is habitually resident in a non-Convention country;
and
(ii) any of paragraphs 69E(1)(b) to (e) (inclusive) applies to the
child.
(2) A court may only exercise jurisdiction in accordance with
subparagraph (1)(b)(vi) for a Commonwealth property protection measure
relating to a child if:
(a) one or both of the child’s parents are habitually resident in
Australia when the proceedings referred to in that subparagraph begin;
and
(b) one or both of the parents have parental responsibility for the child;
and
(c) the jurisdiction of the court to take the measure is accepted by the
parents and each other person with parental responsibility for the child;
and
(d) the exercise of jurisdiction to take the measure is in the best
interests of the child; and
(e) the proceedings on the application for divorce or separation of the
child’s parents or the annulment of their marriage have not been
finalised.
(3) Paragraphs (1)(a) to (c) are subject to the limitations in
sections 111CL, 111CM and 111CO.
A court may not, other than in a case of urgency, exercise jurisdiction
in accordance with paragraph 111CK(1)(a), (b) or (c) to take a Commonwealth
property protection measure relating to a child if:
(a) the child has been wrongfully removed from or retained outside a
Convention country; and
(b) an authority of the Convention country keeps jurisdiction under
Article 7 of the Child Protection Convention.
(1) This section applies to the exercise of jurisdiction by a court in
accordance with paragraph 111CK(1)(a), subparagraph 111CK(1)(b)(iii), (iv), (v)
or (vi) or paragraph 111CK(1)(c).
(2) The court may not exercise that jurisdiction to take a Commonwealth
property protection measure relating to a child if:
(a) a corresponding measure has been sought from a competent authority of
a Convention country at the time of commencement of proceedings before the
court; and
(b) any of the following applies:
(i) the child is habitually resident in the Convention country;
(ii) the child is present in the Convention country and is a refugee
child;
(iii) a request to assume jurisdiction is made to a competent authority of
the country of the child’s habitual residence;
(iv) a competent authority of the country of the child’s habitual
residence agrees to the competent authority assuming jurisdiction;
(v) the competent authority of the Convention country is exercising
jurisdiction in proceedings concerning the divorce or separation of the
child’s parents or the annulment of their marriage (but see
subsection (3));
(vi) the child has been wrongfully removed from or retained outside the
Convention country and a competent authority of the Convention country keeps
jurisdiction under Article 7 of the Child Protection Convention.
(3) Subparagraph (2)(b)(v) only applies (subject to
subsection (4)) if:
(a) one or both of the child’s parents are habitually resident in
the Convention country when the proceedings referred to in that subparagraph are
commenced; and
(b) one or both of the parents have parental responsibility for the child;
and
(c) the jurisdiction of the competent authority of the Convention country
to take the measure is accepted by the parents and each other person with
parental responsibility for the child; and
(d) the exercise of jurisdiction to take the measure is in the best
interests of the child; and
(e) the proceedings on the application for divorce or separation of the
child’s parents or the annulment of their marriage have not been
finalised.
(4) Subsection (2) does not apply if the competent authority of the
Convention country has declined jurisdiction or is no longer considering taking
the measure sought.
(1) A court may accept or reject a request made under Article 8 of the
Child Protection Convention by, or at the invitation of, a competent authority
of a Convention country for the court to assume jurisdiction to take a
Commonwealth property protection measure relating to the child.
(2) A court may order, or invite the parties to proceedings before the
court to ask, the Commonwealth central authority to do both of the following in
a way that the Commonwealth central authority considers appropriate:
(a) to request, under Article 9 of the Child Protection Convention, that a
competent authority of a Convention country agree to the court assuming
jurisdiction to take a Commonwealth property protection measure relating to the
child;
(b) to report to the court about the outcome of the request.
(1) The court may order, or invite the parties to proceedings before the
court to ask, that the Commonwealth central authority, in a way the Commonwealth
central authority considers appropriate, request a competent authority described
in Article 8, paragraph 2, of the Child Protection Convention:
(a) to assume jurisdiction under Article 8 of the Convention for
appointing, or deciding the powers of, a guardian for the child’s
property; and
(b) as the competent authority considers necessary, to take a measure
appointing, or deciding the powers of, a guardian for the child’s
property; and
(c) to report to the court about the outcome of the request.
(2) In addition, the court may make any other order it considers necessary
for an order under subsection (1).
(3) The court may accept or reject a request under Article 9 of the Child
Protection Convention made by, or at the invitation of, a competent authority of
a Convention country described in Article 8, paragraph 2 of the Convention, for
the competent authority to assume jurisdiction to take a measure for the
protection of the child’s property.
(4) If the competent authority assumes jurisdiction under the request, a
court must not exercise jurisdiction in accordance with paragraph 111CK(a) or
subparagraphs 111CK(1)(b)(iii) to (vi) (inclusive) or paragraph 111CK(1)(c)
while the competent authority continues to exercise its jurisdiction.
(1) A Commonwealth property protection measure relating to a child that is
taken by a court exercising jurisdiction in accordance with subparagraph
111CK(1)(b)(i) or (ii) lapses if:
(a) a foreign property protection measure relating to the child is taken
by a competent authority of a Convention country; and
(b) any of the following applies:
(i) the child is habitually resident in the Convention country;
(ii) the child is present in the Convention country and is a refugee
child;
(iii) a request to assume jurisdiction is made to the competent authority
of the Convention country by, or at the invitation of, a competent authority of
the country of the child’s habitual residence;
(iv) a competent authority of the country of the child’s habitual
residence agrees to the competent authority of the Convention country assuming
jurisdiction;
(v) a competent authority of the Convention country is exercising
jurisdiction in proceedings concerning the divorce or separation of the
child’s parents or the annulment of their marriage (but see
subsection (2));
(vi) the child has been wrongfully removed from or retained
outside the Convention country and a competent authority of the Convention
country keeps jurisdiction under Article 7 of the Child Protection
Convention.
(2) Subparagraph (1)(b)(v) only applies if:
(a) one or both of the child’s parents are habitually resident in
the Convention country when the proceedings referred to in that subparagraph are
started; and
(b) one or both of the parents have parental responsibility for the child;
and
(c) the jurisdiction of the competent authority of the Convention country
to take the measure is accepted by the parents and each other person with
parental responsibility for the child; and
(d) the exercise of jurisdiction to take the measure is in the best
interests of the child; and
(e) the proceedings on the application for divorce or separation of the
child’s parents or the annulment of their marriage have not been
finalised.
(3) A Commonwealth property protection measure relating to a child that is
taken by a court exercising jurisdiction in a case of urgency in accordance with
subparagraph 111CK(1)(b)(i) or in the taking of a measure of a provisional
character in accordance with subparagraph 111CK(1)(b)(ii) lapses if:
(a) a measure for the appointment, or the determination of the powers, of
a guardian for a child’s property is taken by a competent authority of a
non-Convention country; and
(b) the measure is registered:
(i) in accordance with regulations made for the purposes of
section 70G; or
(ii) under a law of a State or Territory.
In this Subdivision:
law does not include choice of law rules.
(1) This section applies to a court exercising jurisdiction in accordance
with Subdivision B or C.
(2) The court must apply the law of Australia in exercising that
jurisdiction.
(3) However, the court may in exceptional circumstances apply or
take into account the law of another country with which:
(a) a child has a substantial connection; or
(b) a child’s property is substantially connected;
if the court considers the protection of the person of the child, or the
child’s property, requires the court to do so.
(4) In subsection (2):
law of Australia means:
(a) law in force throughout Australia; or
(b) law in force in a part of Australia;
and includes the principles and rules of the common law and of equity as so
in force.
(1) The principles set out in this section apply despite anything in this
Act, any other Commonwealth law or any law of a State or Territory.
(2) The circumstances in which parental responsibility for a child is
attributed to a person, or extinguished, by operation of law (without the
intervention of a court or appropriate authority) are governed by the law that
applies in the country of the child’s habitual residence.
(3) The circumstances in which parental responsibility for a child is
attributed to a person, or extinguished, by an agreement or a unilateral act
(without the intervention of a court or appropriate authority) are governed by
the law that applies in the country of the child’s habitual residence when
the agreement or act takes effect.
(4) The exercise of parental responsibility for a child is governed by the
law applying in the country of the child’s habitual residence.
(5) If a child’s country of habitual residence changes to another
country:
(a) parental responsibility for the child that exists under the law
applying in the country in which the child was habitually resident continues to
exist; and
(b) the circumstances in which parental responsibility for the child is
attributed by operation of law to a person who does not already have such
responsibility are governed by the law applying in the country of the new
habitual residence; and
(c) the exercise of parental responsibility for the child is governed by
the law applying in the country of the new habitual residence.
(6) Despite subsections (2) to (5), if:
(a) the law that applies because of this section is the law of a
non-Convention country; and
(b) the choice of law rules of that non-Convention country designate that
the law of another non-Convention country applies; and
(c) the other non-Convention country would apply its own law;
the law of that other non-Convention country applies instead.
(7) The parental responsibility referred to in subsection (2), (3),
(4) or (5) may be ended, or the conditions of its exercise changed, by a measure
taken in accordance with section 111CD or 111CK.
(8) A court need not apply a principle set out in subsection (2),
(3), (4) or (5) if, on the application of an interested person, the court
considers that doing so would be contrary to public policy having regard to the
best interests of the child concerned.
(1) This section applies to a foreign measure that is registered in a
court in accordance with regulations made for the purposes of
section 111CZ.
(2) The foreign measure:
(a) has the same force and effect as a Commonwealth personal protection
measure or a Commonwealth property protection measure (as appropriate);
and
(b) prevails over any earlier inconsistent measure in force in Australia,
including:
(i) an order registered under section 70D or 70G; or
(ii) any other order made, or agreement registered, under this
Act.
(1) A court must obtain the consent of a competent authority of a
Convention country before placing a child in a foster family, or in
institutional care, in the Convention country.
(2) Before placing a child, the court may order, or invite the parties to
proceedings before the court to ask, the Commonwealth central authority to
consult a competent authority of the Convention country concerned.
(3) If the court orders the Commonwealth central authority to consult,
then the court must provide the Commonwealth central authority with a report on
the child and the reasons for the proposed placement.
(1) A court must inform a competent authority of another country about any
information the court may have about any serious danger to a child:
(a) whose residence has moved from Australia to the other country;
or
(b) who is present in the other country.
(2) Subsection (1) has effect despite any obligation of
confidentiality imposed on the court or a person by this Act, any other law or
anything else (including a contract or professional ethics).
(3) A person is not liable in civil or criminal proceedings, and is not to
be considered to have breached any professional ethics, in respect of the
provision of information under subsection (1).
(4) Evidence of the provision of information under subsection (1) is
not admissible in any:
(a) court (whether or not exercising jurisdiction under this Act);
or
(b) tribunal or other body concerned with professional ethics;
except where that evidence is given by the person who provided the
information.
(5) In this section:
court includes a person carrying out duties, performing
functions or exercising powers as:
(a) a member of the court personnel; or
(b) a family and child counsellor; or
(c) a family and child mediator; or
(d) an arbitrator.
(1) A court hearing proceedings under Part VII (Children) or
regulations made for the purposes of section 111B concerning contact with a
child must admit into evidence and consider the findings (if any) of a competent
authority of a Convention country on the suitability of a parent to have contact
with the child.
(2) A court may adjourn the proceedings concerning contact with a child
pending the outcome of a request by a parent of the child to a competent
authority of a Convention country for a finding on the suitability of the parent
to have contact with the child.
(3) On the application of a parent who is an Australian resident seeking
to obtain or keep contact with a child, a court may:
(a) admit evidence; and
(b) make a finding on the suitability of that parent to have contact with
the child; and
(c) specify conditions on which the contact is to be given.
A court may make a location order under section 67M or a
Commonwealth information order under section 67N for the purposes of the
Child Protection Convention.
(1) This section applies to:
(a) a court; and
(b) the Commonwealth central authority; and
(c) central authorities of Australia appointed as mentioned in Article 29,
paragraph 2, of the Child Protection Convention; and
(d) other competent authorities in Australia.
(2) If it would be consistent with this Division or the Child Protection
Convention to do so, the court or authority may give information to:
(a) a court or an authority of Australia to which this section applies;
or
(b) a central authority or other competent authority of a Convention
country.
(1) The regulations may make such provision as is necessary or convenient
to enable the performance of the obligations of Australia, or to obtain for
Australia any advantage or benefit, under the Child Protection
Convention.
(2) Regulations made for the purposes of this section may, in
particular:
(a) provide that the regulations do not affect the operation of laws of a
State or Territory that relate to the implementation of the Child Protection
Convention; and
(b) provide that specified provisions of the Child Protection Convention
have the force of law in Australia; and
(c) include a list of Convention countries or territorial units of
Convention countries.
(3) Regulations made for the purposes of this section may:
(a) confer jurisdiction on a federal court (other than the High Court) or
a court of a Territory; or
(b) invest a court of a State with federal jurisdiction.
Such jurisdiction is in addition to any other jurisdiction provided for
under this Act.
(4) Regulations made for the purposes of subsection (3) may make
different provision in respect of matters arising in relation to different
States or Territories. This subsection does not, by implication, limit
subsection 33(3A) of the Acts Interpretation Act 1901.
(5) Subsections (2), (3) and (4) do not, by implication, limit
subsection (1).
26 At the end of the Act
Add:
Note: This is the copy of the Child Protection Convention
referred to in the definition of Child Protection Convention in
subsection 111CA(1).
The undersigned, Delegates of the Governments of Argentina, Australia,
Austria, Belgium, Canada, China, Croatia, the Czech Republic, Egypt, Finland,
The former Yugoslav Republic of Macedonia, France, Germany, Greece, Ireland,
Israel, Italy, Japan, Luxembourg, Malta, Mexico, Monaco, Morocco, the
Netherlands, Norway, Poland, Portugal, Romania, the Slovak Republic, Spain,
Sweden, Switzerland, the United Kingdom of Great Britain and Northern Ireland,
the United States of America and Venezuela, Member States, as well as the
Representatives of the Governments of Burkina Faso, Colombia, Costa Rica,
Ecuador, Georgia, the Holy See, the Republic of Korea, Mauritius, New Zealand,
Paraguay, Peru, the Philippines, the Russian Federation, South Africa and Sri
Lanka, participating as Observers, convened at The Hague on 30 September
1996, at the invitation of the Government of the Netherlands, in the Eighteenth
Session of the Hague Conference on Private International
Law.
Following the deliberations laid down in the records of the
meetings, have decided to submit to their
Governments—
CONVENTION ON JURISDICTION, APPLICABLE LAW,
RECOGNITION, ENFORCEMENT AND CO-OPERATION IN RESPECT OF PARENTAL RESPONSIBILITY
AND MEASURES FOR THE PROTECTION OF CHILDREN
The States signatory
to the present Convention,
Considering the need to improve the protection
of children in international situations,
Wishing to avoid conflicts
between their legal systems in respect of jurisdiction, applicable law,
recognition and enforcement of measures for the protection of
children,
Recalling the importance of international co-operation for the
protection of children,
Confirming that the best interests of the child
are to be a primary consideration,
Noting that the Convention of
5 October 1961 concerning the powers of authorities and the law applicable
in respect of the protection of minors is in need of
revision,
Desiring to establish common provisions to this effect, taking
into account the United Nations Convention on the Rights of the Child of
20 November 1989,
Have agreed on the following
provisions—
CHAPTER I—SCOPE OF THE
CONVENTION
Article 1
1 The objects of the present
Convention are—
a to determine the State whose authorities
have jurisdiction to take measures directed to the protection of the person or
property of the child;
b to determine which law is to be applied
by such authorities in exercising their jurisdiction;
c to
determine the law applicable to parental responsibility;
d to
provide for the recognition and enforcement of such measures of protection in
all Contracting States;
e to establish such co-operation between
the authorities of the Contracting States as may be necessary in order to
achieve the purposes of this Convention.
2 For the purposes of this
Convention, the term ‘parental responsibility’ includes parental
authority, or any analogous relationship of authority determining the rights,
powers and responsibilities of parents, guardians or other legal representatives
in relation to the person or the property of the
child.
Article 2
The Convention applies to children
from the moment of their birth until they reach the age of 18
years.
Article 3
The measures referred to in
Article 1 may deal in particular with—
a the
attribution, exercise, termination or restriction of parental responsibility, as
well as its delegation;
b rights of custody, including rights
relating to the care of the person of the child and, in particular, the right to
determine the child’s place of residence, as well as rights of access
including the right to take a child for a limited period of time to a place
other than the child’s habitual residence;
c guardianship,
curatorship and analogous institutions;
d the designation and
functions of any person or body having charge of the child’s person or
property, representing or assisting the child;
e the placement of
the child in a foster family or in institutional care, or the provision of care
by kafala or an analogous institution;
f the supervision by
a public authority of the care of a child by any person having charge of the
child;
g the administration, conservation or disposal of the
child’s property.
Article 4
The Convention
does not apply to—
a the establishment or contesting of a
parent-child relationship;
b decisions on adoption, measures
preparatory to adoption, or the annulment or revocation of
adoption;
c the name and forenames of the
child;
d emancipation;
e maintenance
obligations;
f trusts or succession;
g social
security;
h public measures of a general nature in matters of
education or health;
i measures taken as a result of penal
offences committed by children;
j decisions on the right of asylum
and on immigration.
CHAPTER
II—JURISDICTION
Article 5
1 The judicial or
administrative authorities of the Contracting State of the habitual residence of
the child have jurisdiction to take measures directed to the protection of the
child’s person or property.
2 Subject to Article 7, in case of a
change of the child’s habitual residence to another Contracting State, the
authorities of the State of the new habitual residence have
jurisdiction.
Article 6
1 For refugee children and
children who, due to disturbances occurring in their country, are
internationally displaced, the authorities of the Contracting State on the
territory of which these children are present as a result of their displacement
have the jurisdiction provided for in paragraph 1 of Article 5.
2 The
provisions of the preceding paragraph also apply to children whose habitual
residence cannot be established.
Article 7
1 In
case of wrongful removal or retention of the child, the authorities of the
Contracting State in which the child was habitually resident immediately before
the removal or retention keep their jurisdiction until the child has acquired a
habitual residence in another State, and
a each person,
institution or other body having rights of custody has acquiesced in the removal
or retention; or
b the child has resided in that other State for a
period of at least one year after the person, institution or other body having
rights of custody has or should have had knowledge of the whereabouts of the
child, no request for return lodged within that period is still pending, and the
child is settled in his or her new environment.
2 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.
3 So long as the authorities first mentioned in paragraph 1 keep
their jurisdiction, the authorities of the Contracting State to which the child
has been removed or in which he or she has been retained can take only such
urgent measures under Article 11 as are necessary for the protection of the
person or property of the child.
Article 8
1 By way
of exception, the authority of a Contracting State having jurisdiction under
Article 5 or 6, if it considers that the authority of another Contracting State
would be better placed in the particular case to assess the best interests of
the child, may either
— request that other authority, directly or
with the assistance of the Central Authority of its State, to assume
jurisdiction to take such measures of protection as it considers to be
necessary, or
— suspend consideration of the case and invite the
parties to introduce such a request before the authority of that other
State.
2 The Contracting States whose authorities may be addressed as
provided in the preceding paragraph are
a a State of which the
child is a national,
b a State in which property of the child is
located,
c a State whose authorities are seised of an application
for divorce or legal separation of the child’s parents, or for annulment
of their marriage,
d a State with which the child has a
substantial connection.
3 The authorities concerned may proceed to an
exchange of views.
4 The authority addressed as provided in paragraph
1 may assume jurisdiction, in place of the authority having jurisdiction
under Article 5 or 6, if it considers that this is in the child’s best
interests.
Article 9
1 If the authorities of a
Contracting State referred to in Article 8, paragraph 2, consider that they are
better placed in the particular case to assess the child’s best interests,
they may either
— request the competent authority of the
Contracting State of the habitual residence of the child, directly or with the
assistance of the Central Authority of that State, that they be authorised to
exercise jurisdiction to take the measures of protection which they consider to
be necessary, or
— invite the parties to introduce such a request
before the authority of the Contracting State of the habitual residence of the
child.
2 The authorities concerned may proceed to an exchange of
views.
3 The authority initiating the request may exercise jurisdiction
in place of the authority of the Contracting State of the habitual residence of
the child only if the latter authority has accepted the
request.
Article 10
1 Without prejudice to Articles
5 to 9, the authorities of a Contracting State exercising jurisdiction to decide
upon an application for divorce or legal separation of the parents of a child
habitually resident in another Contracting State, or for annulment of their
marriage, may, if the law of their State so provides, take measures directed to
the protection of the person or property of such child if
a at the
time of commencement of the proceedings, one of his or her parents habitually
resides in that State and one of them has parental responsibility in relation to
the child, and
b the jurisdiction of these authorities to take
such measures has been accepted by the parents, as well as by any other person
who has parental responsibility in relation to the child, and is in the best
interests of the child.
2 The jurisdiction provided for by paragraph 1 to
take measures for the protection of the child ceases as soon as the decision
allowing or refusing the application for divorce, legal separation or annulment
of the marriage has become final, or the proceedings have come to an end for
another reason.
Article 11
1 In all cases of
urgency, the authorities of any Contracting State in whose territory the child
or property belonging to the child is present have jurisdiction to take any
necessary measures of protection.
2 The measures taken under the
preceding paragraph with regard to a child habitually resident in a Contracting
State shall lapse as soon as the authorities which have jurisdiction under
Articles 5 to 10 have taken the measures required by the situation.
3 The
measures taken under paragraph 1 with regard to a child who is habitually
resident in a non-Contracting State shall lapse in each Contracting State as
soon as measures required by the situation and taken by the authorities of
another State are recognised in the Contracting State in
question.
Article 12
1 Subject to Article 7, the
authorities of a Contracting State in whose territory the child or property
belonging to the child is present have jurisdiction to take measures of a
provisional character for the protection of the person or property of the child
which have a territorial effect limited to the State in question, in so far as
such measures are not incompatible with measures already taken by authorities
which have jurisdiction under Articles 5 to 10.
2 The measures taken
under the preceding paragraph with regard to a child habitually resident in a
Contracting State shall lapse as soon as the authorities which have jurisdiction
under Articles 5 to 10 have taken a decision in respect of the measures of
protection which may be required by the situation.
3 The measures taken
under paragraph 1 with regard to a child who is habitually resident in a
non-Contracting State shall lapse in the Contracting State where the measures
were taken as soon as measures required by the situation and taken by the
authorities of another State are recognised in the Contracting State in
question.
Article 13
1 The authorities of a
Contracting State which have jurisdiction under Articles 5 to 10 to take
measures for the protection of the person or property of the child must abstain
from exercising this jurisdiction if, at the time of the commencement of the
proceedings, corresponding measures have been requested from the authorities of
another Contracting State having jurisdiction under Articles 5 to 10 at the time
of the request and are still under consideration.
2 The provisions of the
preceding paragraph shall not apply if the authorities before whom the request
for measures was initially introduced have declined
jurisdiction.
Article 14
The measures taken in
application of Articles 5 to 10 remain in force according to their terms, even
if a change of circumstances has eliminated the basis upon which jurisdiction
was founded, so long as the authorities which have jurisdiction under the
Convention have not modified, replaced or terminated such
measures.
CHAPTER III—APPLICABLE LAW
Article
15
1 In exercising their jurisdiction under the provisions of Chapter
II, the authorities of the Contracting States shall apply their own
law.
2 However, in so far as the protection of the person or the property
of the child requires, they may exceptionally apply or take into consideration
the law of another State with which the situation has a substantial
connection.
3 If the child’s habitual residence changes to another
Contracting State, the law of that other State governs, from the time of the
change, the conditions of application of the measures taken in the State of the
former habitual residence.
Article 16
1 The
attribution or extinction of parental responsibility by operation of law,
without the intervention of a judicial or administrative authority, is governed
by the law of the State of the habitual residence of the child.
2 The
attribution or extinction of parental responsibility by an agreement or a
unilateral act, without intervention of a judicial or administrative authority,
is governed by the law of the State of the child’s habitual residence at
the time when the agreement or unilateral act takes effect.
3 Parental
responsibility which exists under the law of the State of the child’s
habitual residence subsists after a change of that habitual residence to another
State.
4 If the child’s habitual residence changes, the attribution
of parental responsibility by operation of law to a person who does not already
have such responsibility is governed by the law of the State of the new habitual
residence.
Article 17
The exercise of parental
responsibility is governed by the law of the State of the child’s habitual
residence. If the child’s habitual residence changes, it is governed by
the law of the State of the new habitual residence.
Article
18
The parental responsibility referred to in Article 16 may be
terminated, or the conditions of its exercise modified, by measures taken under
this Convention.
Article 19
1 The validity of a
transaction entered into between a third party and another person who would be
entitled to act as the child’s legal representative under the law of the
State where the transaction was concluded cannot be contested, and the third
party cannot be held liable, on the sole ground that the other person was not
entitled to act as the child’s legal representative under the law
designated by the provisions of this Chapter, unless the third party knew or
should have known that the parental responsibility was governed by the latter
law.
2 The preceding paragraph applies only if the transaction was
entered into between persons present on the territory of the same
State.
Article 20
The provisions of this Chapter
apply even if the law designated by them is the law of a non-Contracting
State.
Article 21
1 In this Chapter the term
“law” means the law in force in a State other than its choice of law
rules.
2 However, if the law applicable according to Article 16 is that
of a non-Contracting State and if the choice of law rules of that State
designate the law of another non-Contracting State which would apply its own
law, the law of the latter State applies. If that other non-Contracting State
would not apply its own law, the applicable law is that designated by Article
16.
Article 22
The application of the law
designated by the provisions of this Chapter can be refused only if this
application would be manifestly contrary to public policy, taking into account
the best interests of the child.
CHAPTER IV—RECOGNITION AND
ENFORCEMENT
Article 23
1 The measures taken by the
authorities of a Contracting State shall be recognised by operation of law in
all other Contracting States.
2 Recognition may however be
refused—
a if the measure was taken by an authority whose
jurisdiction was not based on one of the grounds provided for in Chapter
II;
b if the measure was taken, except in a case of urgency, in
the context of a judicial or administrative proceeding, without the child having
been provided the opportunity to be heard, in violation of fundamental
principles of procedure of the requested State;
c on the request
of any person claiming that the measure infringes his or her parental
responsibility, if such measure was taken, except in a case of urgency, without
such person having been given an opportunity to be heard;
d if
such recognition is manifestly contrary to public policy of the requested State,
taking into account the best interests of the child;
e if the
measure is incompatible with a later measure taken in the non-Contracting State
of the habitual residence of the child, where this later measure fulfils the
requirements for recognition in the requested State;
f if the
procedure provided in Article 33 has not been complied
with.
Article 24
Without prejudice to Article 23,
paragraph 1, any interested person may request from the competent authorities of
a Contracting State that they decide on the recognition or non-recognition of a
measure taken in another Contracting State. The procedure is governed by the law
of the requested State.
Article 25
The authority of
the requested State is bound by the findings of fact on which the authority of
the State where the measure was taken based its
jurisdiction.
Article 26
1 If measures taken in one
Contracting State and enforceable there require enforcement in another
Contracting State, they shall, upon request by an interested party, be declared
enforceable or registered for the purpose of enforcement in that other State
according to the procedure provided in the law of the latter
State.
2 Each Contracting State shall apply to the declaration of
enforceability or registration a simple and rapid procedure.
3 The
declaration of enforceability or registration may be refused only for one of the
reasons set out in Article 23, paragraph 2.
Article
27
Without prejudice to such review as is necessary in the
application of the preceding Articles, there shall be no review of the merits of
the measure taken.
Article 28
Measures taken in one
Contracting State and declared enforceable, or registered for the purpose of
enforcement, in another Contracting State shall be enforced in the latter State
as if they had been taken by the authorities of that State. Enforcement takes
place in accordance with the law of the requested State to the extent provided
by such law, taking into consideration the best interests of the
child.
CHAPTER V—CO-OPERATION
Article
29
1 A Contracting State shall designate a Central Authority to
discharge the duties which are imposed by the Convention on such
authorities.
2 Federal States, States with more than one system of law or
States having autonomous territorial units shall be free to appoint more than
one Central Authority and to specify the territorial or personal extent of their
functions. Where a State has appointed more than one Central Authority, it shall
designate the Central Authority to which any communication may be addressed for
transmission to the appropriate Central Authority within that
State.
Article 30
1 Central Authorities shall
co-operate with each other and promote co-operation amongst the competent
authorities in their States to achieve the purposes of the
Convention.
2 They shall, in connection with the application of the
Convention, take appropriate steps to provide information as to the laws of, and
services available in, their States relating to the protection of
children.
Article 31
The Central Authority of a
Contracting State, either directly or through public authorities or other
bodies, shall take all appropriate steps to—
a facilitate
the communications and offer the assistance provided for in Articles 8 and 9 and
in this Chapter;
b facilitate, by mediation, conciliation or
similar means, agreed solutions for the protection of the person or property of
the child in situations to which the Convention
applies;
c provide, on the request of a competent authority of
another Contracting State, assistance in discovering the whereabouts of a child
where it appears that the child may be present and in need of protection within
the territory of the requested State.
Article 32
On
a request made with supporting reasons by the Central Authority or other
competent authority of any Contracting State with which the child has a
substantial connection, the Central Authority of the Contracting State in which
the child is habitually resident and present may, directly or through public
authorities or other
bodies,
a provide
a report on the situation of the child;
b request the competent
authority of its State to consider the need to take measures for the protection
of the person or property of the child.
Article
33
1 If an authority having jurisdiction under Articles 5 to 10
contemplates the placement of the child in a foster family or institutional
care, or the provision of care by kafala or an analogous institution, and
if such placement or such provision of care is to take place in another
Contracting State, it shall first consult with the Central Authority or other
competent authority of the latter State. To that effect it shall transmit a
report on the child together with the reasons for the proposed placement or
provision of care.
2 The decision on the placement or provision of care
may be made in the requesting State only if the Central Authority or other
competent authority of the requested State has consented to the placement or
provision of care, taking into account the child’s best
interests.
Article 34
1 Where a measure of
protection is contemplated, the competent authorities under the Convention, if
the situation of the child so requires, may request any authority of another
Contracting State which has information relevant to the protection of the child
to communicate such information.
2 A Contracting State may declare that
requests under paragraph 1 shall be communicated to its authorities only through
its Central Authority.
Article 35
1 The competent
authorities of a Contracting State may request the authorities of another
Contracting State to assist in the implementation of measures of protection
taken under this Convention, especially in securing the effective exercise of
rights of access as well as of the right to maintain direct contacts on a
regular basis.
2 The authorities of a Contracting State in which the
child does not habitually reside may, on the request of a parent residing in
that State who is seeking to obtain or to maintain access to the child, gather
information or evidence and may make a finding on the suitability of that parent
to exercise access and on the conditions under which access is to be exercised.
An authority exercising jurisdiction under Articles 5 to 10 to determine an
application concerning access to the child, shall admit and consider such
information, evidence and finding before reaching its decision.
3 An
authority having jurisdiction under Articles 5 to 10 to decide on access may
adjourn a proceeding pending the outcome of a request made under paragraph 2, in
particular, when it is considering an application to restrict or terminate
access rights granted in the State of the child’s former habitual
residence.
4 Nothing in this Article shall prevent an authority having
jurisdiction under Articles 5 to 10 from taking provisional measures pending the
outcome of the request made under paragraph 2.
Article
36
In any case where the child is exposed to a serious danger, the
competent authorities of the Contracting State where measures for the protection
of the child have been taken or are under consideration, if they are informed
that the child’s residence has changed to, or that the child is present in
another State, shall inform the authorities of that other State about the danger
involved and the measures taken or under
consideration.
Article 37
An authority shall not
request or transmit any information under this Chapter if to do so would, in its
opinion, be likely to place the child’s person or property in danger, or
constitute a serious threat to the liberty or life of a member of the
child’s family.
Article 38
1 Without
prejudice to the possibility of imposing reasonable charges for the provision of
services, Central Authorities and other public authorities of Contracting States
shall bear their own costs in applying the provisions of this
Chapter.
2 Any Contracting State may enter into agreements with one or
more other Contracting States concerning the allocation of
charges.
Article 39
Any Contracting State may enter
into agreements with one or more other Contracting States with a view to
improving the application of this Chapter in their mutual relations. The States
which have concluded such an agreement shall transmit a copy to the depositary
of the Convention.
CHAPTER VI—GENERAL
PROVISIONS
Article 40
1 The authorities of the Contracting
State of the child’s habitual residence, or of the Contracting State where
a measure of protection has been taken, may deliver to the person having
parental responsibility or to the person entrusted with protection of the
child’s person or property, at his or her request, a certificate
indicating the capacity in which that person is entitled to act and the powers
conferred upon him or her.
2 The capacity and powers indicated in the
certificate are presumed to be vested in that person, in the absence of proof to
the contrary.
3 Each Contracting State shall designate the authorities
competent to draw up the certificate.
Article
41
Personal data gathered or transmitted under the Convention shall
be used only for the purposes for which they were gathered or
transmitted.
Article 42
The authorities to whom
information is transmitted shall ensure its confidentiality, in accordance with
the law of their State.
Article 43
All documents
forwarded or delivered under this Convention shall be exempt from legalisation
or any analogous formality.
Article 44
Each
Contracting State may designate the authorities to which requests under Articles
8, 9 and 33 are to be addressed.
Article 45
1 The
designations referred to in Articles 29 and 44 shall be communicated to the
Permanent Bureau of the Hague Conference on Private International
Law.
2 The declaration referred to in Article 34, paragraph 2, shall be
made to the depositary of the Convention.
Article
46
A Contracting State in which different systems of law or sets of
rules of law apply to the protection of the child and his or her property shall
not be bound to apply the rules of the Convention to conflicts solely between
such different systems or sets of rules of law.
Article
47
In relation to a State in which two or more systems of law or sets
of rules of law with regard to any matter dealt with in this Convention apply in
different territorial units—
1 any reference to habitual residence
in that State shall be construed as referring to habitual residence in a
territorial unit;
2 any reference to the presence of the child in that
State shall be construed as referring to presence in a territorial
unit;
3 any reference to the location of property of the child in that
State shall be construed as referring to location of property of the child in a
territorial unit;
4 any reference to the State of which the child is a
national shall be construed as referring to the territorial unit designated by
the law of that State or, in the absence of relevant rules, to the territorial
unit with which the child has the closest connection;
5 any reference to
the State whose authorities are seised of an application for divorce or legal
separation of the child’s parents, or for annulment of their marriage,
shall be construed as referring to the territorial unit whose authorities are
seised of such application;
6 any reference to the State with which the
child has a substantial connection shall be construed as referring to the
territorial unit with which the child has such connection;
7 any
reference to the State to which the child has been removed or in which he or she
has been retained shall be construed as referring to the relevant territorial
unit to which the child has been removed or in which he or she has been
retained;
8 any reference to bodies or authorities of that State, other
than Central Authorities, shall be construed as referring to those authorised to
act in the relevant territorial unit;
9 any reference to the law or
procedure or authority of the State in which a measure has been taken shall be
construed as referring to the law or procedure or authority of the territorial
unit in which such measure was taken;
10 any reference to the law or
procedure or authority of the requested State shall be construed as referring to
the law or procedure or authority of the territorial unit in which recognition
or enforcement is sought.
Article 48
For the
purpose of identifying the applicable law under Chapter III, in relation to a
State which comprises two or more territorial units each of which has its own
system of law or set of rules of law in respect of matters covered by this
Convention, the following rules apply—
a if there are rules
in force in such a State identifying which territorial unit’s law is
applicable, the law of that unit applies;
b in the absence of such
rules, the law of the relevant territorial unit as defined in Article 47
applies.
Article 49
For the purpose of identifying
the applicable law under Chapter III, in relation to a State which has two or
more systems of law or sets of rules of law applicable to different categories
of persons in respect of matters covered by this Convention, the following rules
apply—
a if there are rules in force in such a State
identifying which among such laws applies, that law applies;
b in
the absence of such rules, the law of the system or the set of rules of law with
which the child has the closest connection applies.
Article
50
This Convention shall not affect the application of the
Convention of 25 October 1980 on the Civil Aspects of International Child
Abduction, as between Parties to both Conventions. Nothing, however,
precludes provisions of this Convention from being invoked for the purposes of
obtaining the return of a child who has been wrongfully removed or retained or
of organising access rights.
Article 51
In
relations between the Contracting States this Convention replaces the
Convention of 5 October 1961 concerning the powers of authorities and
the law applicable in respect of the protection of minors, and the Convention
governing the guardianship of minors, signed at The Hague 12 June 1902,
without prejudice to the recognition of measures taken under the Convention of
5 October 1961 mentioned above.
Article
52
1 This Convention does not affect any international instrument to
which Contracting States are Parties and which contains provisions on matters
governed by the Convention, unless a contrary declaration is made by the States
Parties to such instrument.
2 This Convention does not affect the
possibility for one or more Contracting States to conclude agreements which
contain, in respect of children habitually resident in any of the States Parties
to such agreements, provisions on matters governed by this
Convention.
3 Agreements to be concluded by one or more Contracting
States on matters within the scope of this Convention do not affect, in the
relationship of such States with other Contracting States, the application of
the provisions of this Convention.
4 The preceding paragraphs also apply
to uniform laws based on special ties of a regional or other nature between the
States concerned.
Article 53
1 The Convention shall
apply to measures only if they are taken in a State after the Convention has
entered into force for that State.
2 The Convention shall apply to the
recognition and enforcement of measures taken after its entry into force as
between the State where the measures have been taken and the requested
State.
Article 54
1 Any communication sent to the
Central Authority or to another authority of a Contracting 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 other State or, where that is
not feasible, a translation into French or English.
2 However, a
Contracting State may, by making a reservation in accordance with Article 60,
object to the use of either French or English, but not
both.
Article 55
1 A Contracting State may, in
accordance with Article 60,
a reserve the jurisdiction of its
authorities to take measures directed to the protection of property of a child
situated on its territory;
b reserve the right not to recognise
any parental responsibility or measure in so far as it is incompatible with any
measure taken by its authorities in relation to that property.
2 The
reservation may be restricted to certain categories of
property.
Article 56
The Secretary General of the
Hague Conference on Private International Law shall at regular intervals convoke
a Special Commission in order to review the practical operation of the
Convention.
CHAPTER VII—FINAL CLAUSES
Article
57
1 The Convention shall be open for signature by the States which
were Members of the Hague Conference on Private International Law at the time of
its Eighteenth Session.
2 It shall be ratified, accepted or approved and
the instruments of ratification, acceptance or approval shall be deposited with
the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of
the Convention.
Article 58
1 Any other State may
accede to the Convention after it has entered into force in accordance with
Article 61, paragraph 1.
2 The instrument of accession shall be deposited
with the depositary.
3 Such accession shall have effect only as regards
the relations between the acceding State and those Contracting States which have
not raised an objection to its accession in the six months after the receipt of
the notification referred to in sub-paragraph b of Article 63. Such an
objection may also be raised by States at the time when they ratify, accept or
approve the Convention after an accession. Any such objection shall be notified
to the depositary.
Article 59
1 If a State has two
or more territorial units in which different systems of law are applicable in
relation to matters dealt with in this Convention, it may at the time of
signature, ratification, acceptance, approval or accession declare that the
Convention shall extend to all its territorial units or only to one or more of
them and may modify this declaration by submitting another declaration at any
time.
2 Any such declaration shall be notified to the depositary and
shall state expressly the territorial units to which the Convention
applies.
3 If a State makes no declaration under this Article, the
Convention is to extend to all territorial units of that
State.
Article 60
1 Any State may, not later than
the time of ratification, acceptance, approval or accession, or at the time of
making a declaration in terms of Article 59, make one or both of the
reservations provided for in Articles 54, paragraph 2, and 55. No other
reservation shall be permitted.
2 Any State may at any time withdraw a
reservation it has made. The withdrawal shall be notified to the
depositary.
3 The reservation shall cease to have effect on the first day
of the third calendar month after the notification referred to in the preceding
paragraph.
Article 61
1 The Convention shall enter
into force on the first day of the month following the expiration of three
months after the deposit of the third instrument of ratification, acceptance or
approval referred to in Article 57.
2 Thereafter the Convention shall
enter into force—
a for each State ratifying, accepting or
approving it subsequently, on the first day of the month following the
expiration of three months after the deposit of its instrument of ratification,
acceptance, approval or accession;
b for each State acceding, on
the first day of the month following the expiration of three months after the
expiration of the period of six months provided in Article 58, paragraph
3;
c for a territorial unit to which the Convention has been
extended in conformity with Article 59, on the first day of the month following
the expiration of three months after the notification referred to in that
Article.
Article 62
1 A State Party to the
Convention may denounce it by a notification in writing addressed to the
depositary. The denunciation may be limited to certain territorial units to
which the Convention applies.
2 The denunciation takes effect on the
first day of the month following the expiration of twelve months after the
notification is received by the depositary. Where a longer period for the
denunciation to take effect is specified in the notification, the denunciation
takes effect upon the expiration of such longer
period.
Article 63
The depositary shall notify the
States Members of the Hague Conference on Private International Law and the
States which have acceded in accordance with Article 58 of the
following—
a the signatures, ratifications, acceptances and
approvals referred to in Article 57;
b the accessions and
objections raised to accessions referred to in Article 58;
c the
date on which the Convention enters into force in accordance with Article
61;
d the declarations referred to in Articles 34, paragraph 2,
and 59;
e the agreements referred to in Article
39;
f the reservations referred to in Articles 54, paragraph 2,
and 55 and the withdrawals referred to in Article 60, paragraph
2;
g the denunciations referred to in Article 62.
In
witness whereof the undersigned, being duly authorised thereto, have signed this
Convention.
[Signatures omitted]
Done at The Hague, on the
19th day of October 1996, in the English and French languages, both texts being
equally authentic, in a single copy which shall be deposited in the archives of
the Government of the Kingdom of the Netherlands, and of which a certified copy
shall be sent, through diplomatic channels, to each of the States Members of the
Hague Conference on Private International Law at the date of its Eighteenth
Session.