New South Wales Consolidated Acts

CHILD PROTECTION (INTERNATIONAL MEASURES) ACT 2006 - SECT 23

23 Action on receipt of foreign personal protection measure

(1) This section applies if the Director-General is given either of the following documents, together with a request for the Director-General to take an action under the Child Protection Convention:

(a) a document that is a foreign personal protection measure relating to a child,

(b) a document that, although it is not a foreign personal protection measure relating to a child, states details of a foreign personal protection measure relating to a child.

(2) After consulting with the competent authority of the country in which the foreign personal protection measure was taken, the Director-General must do one of the following:

(a) give the foreign personal protection measure to a registrar of a New South Wales court for recognition of the measure by registration under section 25,

(b) give the foreign personal protection measure to the Commonwealth central authority together with a request for the Commonwealth central authority to take action under the Child Protection Convention, including, for example, registration of the foreign measure under the Family Law Act 1975 of the Commonwealth,

(c) exercise the Director-General’s jurisdiction under Part 2,

(d) apply to a New South Wales court for the court:

(i) to exercise the court’s jurisdiction under Part 2, or

(ii) to decide whether or not the court should refuse recognition of the foreign measure under subsection (3),

(e) agree with the competent authority that the Director-General will not do anything.

(3) A New South Wales court may order that a foreign personal protection measure relating to a child be refused recognition on any of the following grounds:

(a) the competent authority of the Convention country did not have jurisdiction under the Child Protection Convention for taking the foreign personal protection measure,

(b) in taking the foreign personal protection measure, the competent authority of the Convention country is taken to have acted contrary to the fundamental principles of procedure under New South Wales law as mentioned in subsection (4),

(c) recognition of the foreign personal protection measure is contrary to public policy in New South Wales having regard to the child’s best interests,

(d) if the foreign personal protection measure were recognised by registration under section 25, there would be no appropriate means of enforcing the measure under New South Wales law,

(e) the foreign personal protection measure is incompatible with a later measure taken in a non-Convention country in which the child habitually resides and, if the later measure were a foreign personal protection measure, it could not be refused recognition under paragraph (b) or (c),

(f) the foreign personal protection measure places the child in the care of an authorised carer or of the principal officer of a designated agency as an authorised carer in New South Wales and the competent authority did not obtain the Director-General’s consent to the placement before taking the measure.

(4) The competent authority of the Convention country is taken to have acted contrary to the fundamental principles of procedure under New South Wales law if:

(a) the competent authority did not give the child, or a person with parental responsibility for the child, an opportunity to be heard before taking the foreign personal protection measure, and

(b) the competent authority did not take the foreign personal protection measure as a matter of urgency.

(5) An interested person may apply to the court to be joined as a party to the proceeding arising from an application under subsection (2) (d).

(6) If:

(a) under subsection (2) (a) the Director-General gives a foreign personal protection measure relating to a child to a registrar of a New South Wales court, and

(b) the measure authorises the performance of a medical procedure or treatment on the child that is a procedure or treatment for which a parent does not, under New South Wales law, have authority to consent,

the measure must be accompanied by a Family Court declaration that recognition of the measure is not contrary to public policy having regard to the child’s best interests.

(7) In this section:
"Family Court declaration" means a declaration by a court exercising jurisdiction for proceedings under the Family Law Act 1975 of the Commonwealth or the Family Court Act 1997 of Western Australia.