Status of Children Act 1996 STATUS OF CHILDREN REGULATION 2008 - Made under the Status of Children Act 1996 - As at 30 May 2012 - Reg 365 of 2008 TABLE OF PROVISIONS TABLE OF PROVISIONS PART 1 - PRELIMINARY 1. Name of Regulation 2. Commencement 3. Interpretation PART 2 - PARENTAGE TESTING PROCEDURES AND REPORTS Division 1 - General 4. Application of Part 5. Parentage testing procedures 6. Compliance with this Regulation Division 2 - Collection, storage and testing of samples 7. Provision of information by donor or representative—Form 1 8. Collection of blood samples 9. Collection of bodily samples for DNA typing 10. Container to be sealed and labelled 11. Statement by sampler—Form 2 12. Packing and storage requirement 13. Testing of bodily samples Division 3 - Reports 14. Reports—Form 3 PART 3 - MISCELLANEOUS 15. Paternity acknowledgments—Form 4 16. Applications for declarations by the Supreme Court of paternity or maternity 17. Persons prescribed as “qualified persons” under section 33 of the Act 18. Savings SCHEDULE 1 STATUS OF CHILDREN REGULATION 2008 - REG 1 Name of Regulation 1 Name of Regulation This Regulation is the Status of Children Regulation 2008. STATUS OF CHILDREN REGULATION 2008 - REG 2 Commencement 2 Commencement This Regulation commences on 1 September 2008. Note: This Regulation replaces the Status of Children Regulation 2003 which is repealed on 1 September 2008 under section 10 (2) of the Subordinate Legislation Act 1989. STATUS OF CHILDREN REGULATION 2008 - REG 3 Interpretation 3 Interpretation (1) In this Regulation: "accredited laboratory" means a laboratory accredited by NATA to carry out parentage testing procedures. "donor" means the person required to provide a bodily sample for the purposes of a parentage testing procedure. "HLA" means human leucocyte antigen. "NATA" means the National Association of Testing Authorities, Australia. "nominated reporter" means the person nominated by an accredited laboratory to prepare a report relating to the information obtained as a result of carrying out a parentage testing procedure. "putative parent" means a person who claims to be, or whom another person claims is, a parent of a child. "report" means a report prepared in accordance with clause 14. "representative" means, subject to subclause (4): (a) in relation to a donor under the age of 18 years—a parent or guardian of the donor, or (b) in relation to a donor who has a disability: (i) a trustee or manager in relation to the donor under a law of the State or Territory whose laws apply to that person, or (ii) a person who is legally responsible for the care, welfare and development of the donor. "sample" means a sample taken from a donor for the purposes of a parentage testing procedure. "sampler" means a person who takes (or proposes to take) a bodily sample from a donor for the purposes of a parentage testing procedure. "testing" means the implementation, or any part of the implementation, of a parentage testing procedure. "the Act" means the Status of Children Act 1996. (2) In relation to any requirement of this Regulation imposed on or in relation to a donor, a reference to a donor who is suffering from a disability is a reference to a donor who has a disability described in section 5 (1) of the Disability Services Act 1993: (a) that results in the donor lacking the legal capacity to comply with or consent to the requirement (as the case may be), or (b) that otherwise prevents the donor from being able to comply with the requirement or consent to it being carried out (as the case may be). (3) In this Regulation, a reference to a Form is a reference to a Form set out in Schedule 1. (4) The Supreme Court may appoint a person to be the representative of a donor for the purposes of this Regulation in relation to a particular matter if the Court is satisfied that there is no other representative who is available or who is suitable in the circumstances. (5) Notes included in this Regulation do not form part of this Regulation. STATUS OF CHILDREN REGULATION 2008 - REG 4 Application of Part 4 Application of Part This Part applies to a parentage testing procedure that is required to be carried out on a person under a parentage testing order. STATUS OF CHILDREN REGULATION 2008 - REG 5 Parentage testing procedures 5 Parentage testing procedures For the purposes of the definition of "parentage testing procedure" in section 3 (1) of the Act, the following medical procedures are prescribed: (a) a red cell antigen blood grouping, (b) a red cell enzyme blood grouping, (c) HLA tissue typing, (d) testing for serum markers, (e) DNA typing. STATUS OF CHILDREN REGULATION 2008 - REG 6 Compliance with this Regulation 6 Compliance with this Regulation A parentage testing procedure is taken to be carried out in accordance with this Regulation only if: (a) it is carried out: (i) in compliance with Division 2, and (ii) at an accredited laboratory, and (iii) in accordance with the standards of practice that entitle a laboratory to be accredited by NATA, and (b) it is supplemented by a report under Division 3, and (c) any bodily sample that is taken as part of the procedure is taken by a qualified person within the meaning of section 33 of the Act. STATUS OF CHILDREN REGULATION 2008 - REG 7 Provision of information by donor or representative—Form 1 7 Provision of information by donor or representative—Form 1 (1) A sampler must not take a bodily sample from a donor unless the donor or, if appropriate, a person described in subclause (3), has: (a) immediately before the sampler takes the bodily sample, completed an affidavit in accordance with Form 1, to which is attached a recent photograph of the donor named in the affidavit, and (b) either: (i) provided to the sampler a recent photograph of the donor, measuring approximately 45 millimetres by 35 millimetres, that shows a full face view of the donor’s head and the donor’s shoulders against a plain background, or (ii) made a written arrangement with the sampler for a photograph of that kind to be taken. (2) The photograph required by subclause (1) (b) is in addition to the photograph that is required to be attached to Form 1. (3) If the donor is under the age of 18 years, or a person who is suffering from a disability, the affidavit referred to in subclause (1) (a) may be completed only by a representative of the donor. STATUS OF CHILDREN REGULATION 2008 - REG 8 Collection of blood samples 8 Collection of blood samples (1) A sampler may take a sample of blood from a donor only with a needle or syringe that: (a) has not been used for any purpose, and (b) is sterile, and (c) is disposable. (2) Before taking a sample of blood from a donor, the sampler must ensure that the area of the donor’s skin into which the needle is to be inserted to withdraw the blood has been cleaned with an antiseptic. STATUS OF CHILDREN REGULATION 2008 - REG 9 Collection of bodily samples for DNA typing 9 Collection of bodily samples for DNA typing (1) This clause applies to the taking of a bodily sample (other than a blood sample) from a donor for the purposes of a parentage testing procedure that is DNA typing. (2) A sampler must not take a bodily sample from a donor with a swab unless the swab: (a) has not been used for any purpose, and (b) is sterile. (3) A sampler must not take a bodily sample from a donor that is a skin scraping or hair root unless the implement used by the sampler to take the sample is sterile. STATUS OF CHILDREN REGULATION 2008 - REG 10 Container to be sealed and labelled 10 Container to be sealed and labelled (1) If a bodily sample is taken from a donor, the sampler must ensure that: (a) the sample is placed in a container: (i) immediately after it is taken, and (ii) in the presence of the donor, and (b) the container has not previously been used for any purpose, and (c) the container is sealed in a way that, if it were opened after being sealed, that fact would be evident on inspection of the container, and (d) the container is labelled in a way that: (i) if the label, or part of the label, were removed, or (ii) if the writing on the label were impaired by alteration or erasure, the removal of the label or the impairment would be evident on inspection of the container, and (e) the particulars on the label are inscribed in ink and include: (i) the full name of the donor, and (ii) the date of birth and sex of the donor, and (iii) the date and time at which the sample was taken, and (f) the label inscribed with the particulars referred to in paragraph (e) is signed in ink by the sampler and the donor. (2) If the donor is a person under the age of 18 years, the procedure specified in subclause (1) (a) and (f) must be completed in the presence of the person’s representative. (3) If the donor is a person who is suffering from a disability: (a) the procedure specified in subclause (1) (a) must be completed in the presence of the person’s representative, and (b) the procedure specified in subclause (1) (f) is taken to have been complied with only if the label is signed by the person’s representative. STATUS OF CHILDREN REGULATION 2008 - REG 11 Statement by sampler—Form 2 11 Statement by sampler—Form 2 After taking a bodily sample from a donor, the sampler must: (a) complete a statement in accordance with Form 2, and (b) affix the photograph of the donor referred to in clause 7 (1) (b) to that statement, and (c) sign his or her name partly on the photograph and partly on the statement in a way that, if the photograph were later removed from the statement, the removal would be evident from inspection of the statement. STATUS OF CHILDREN REGULATION 2008 - REG 12 Packing and storage requirement 12 Packing and storage requirement (1) A bodily sample must be packed, stored and transported to a laboratory for testing in a manner that: (a) will preserve the integrity of the sample, and (b) ensures that the testing of the sample will produce the same results as would have been obtained if the sample had been tested immediately after collection. (2) The sampler must ensure that the following documents are sent to the laboratory with the sample: (a) the affidavit completed under clause 7, (b) the statement completed under clause 11. STATUS OF CHILDREN REGULATION 2008 - REG 13 Testing of bodily samples 13 Testing of bodily samples (1) A laboratory to which a bodily sample has been sent for testing must ensure that the testing is completed: (a) if the proposed testing procedure is red cell antigen blood grouping, red cell enzyme blood grouping or testing for serum markers—within 6 days after the sample is taken, or (b) if the proposed testing procedure is HLA tissue typing—within 3 days after the sample is taken, or (c) if the proposed testing procedure is DNA typing—within a reasonable time after the sample is taken. (2) If the proposed parentage testing procedure is red cell enzyme blood grouping or testing for serum markers, subclause (1) (a) is complied with if a dried sample of the bodily sample to be tested is prepared within 6 days after the sample is taken from the donor. STATUS OF CHILDREN REGULATION 2008 - REG 14 Reports—Form 3 14 Reports—Form 3 (1) A report must be prepared in accordance with this clause relating to the information obtained as a result of carrying out a parentage testing procedure. (2) The report must be in accordance with Form 3. (3) Part 1 of the report must be completed by the nominated reporter identified in the report. (4) Part 2 of the report must be completed by: (a) the person who carried out the parentage testing procedure, or (b) the person under whose supervision the parentage testing procedure was carried out. (5) A report completed otherwise than in accordance with this Regulation is taken to be of no effect. STATUS OF CHILDREN REGULATION 2008 - REG 15 Paternity acknowledgments—Form 4 15 Paternity acknowledgments—Form 4 (1) For the purposes of section 19 (1) (a) of the Act, the prescribed form of an instrument acknowledging paternity of a child is Form 4. (2) For the purposes of section 19 (1) (b) of the Act, the following classes of persons are prescribed: (a) Australian legal practitioners within the meaning of the Legal Profession Act 2004, (b) officers of the Registry of Births, Deaths and Marriages nominated for the time being by the Registrar for the purposes of this paragraph. STATUS OF CHILDREN REGULATION 2008 - REG 16 Applications for declarations by the Supreme Court of paternity or maternity 16 Applications for declarations by the Supreme Court of paternity or maternity For the purposes of section 21 (1) (e) of the Act, the following persons are prescribed persons: (a) the Public Trustee, (b) private trustee companies, (c) an executor, trustee or administrator of an estate. STATUS OF CHILDREN REGULATION 2008 - REG 17 Persons prescribed as “qualified persons” under section 33 of the Act 17 Persons prescribed as “qualified persons” under section 33 of the Act For the purposes of section 33 (2) (c) of the Act, persons employed by a hospital, pathology practice, parentage testing practice or a medical practitioner for the purpose of taking a bodily sample from a donor are prescribed as qualified persons. STATUS OF CHILDREN REGULATION 2008 - REG 18 Savings 18 Savings Any act, matter or thing that had effect under the Status of Children Regulation 2003 immediately before the commencement of this Regulation is taken to have effect under this Regulation. STATUS OF CHILDREN REGULATION 2008 - SCHEDULE 1 SCHEDULE 1 – Forms (Clauses 7, 11, 14 and 15) Form 1 - Parentage testing procedure affidavit by/in relation to donor Parentage testing procedure affidavit by/in relation to donor (Status of Children Act 1996) (Clause 7 (1) (a)) Name of child whose parentage is in issue: Name of donor: Date of birth of donor: *Relationship/*Putative relationship of donor to child whose parentage is in issue (if donor is not the child whose parentage is in issue, insert relationship of donor to child): Date of taking sample from donor: I, (name), of (address), (occupation) *make oath and say/*affirm: (Either Part 1 or Part 2 of this form must be completed and duly sworn or affirmed by the person completing it, and the signature witnessed, on the day the donor’s sample is taken) Parentage testing procedure affidavit by/in relation to donor Part 1 (Part 1 must be completed if the person swearing or affirming the affidavit is the donor) 1 I am the person appearing in the photograph attached to this affidavit, being Attachment ‘A’. 2 My racial background is (give details). 3 In the last 2 years: (a) I *have/*have not suffered from leukaemia. (b) I *have/*have not received a bone marrow transplant. *4 The particulars of the *leukaemia/*bone marrow transplant are as follows: (give particulars) 5 I *have/*have not received a transfusion of blood or a blood product within the last 6 months. *6 The particulars of the transfusion of blood or blood product are as follows: (give particulars) 7 I consent to: (a) the taking of *a bodily sample/*bodily samples from me on (insert date sample is to be taken) at (insert place sample is to be taken) for the purposes of *a parentage testing procedure/*parentage testing procedures, and (b) the carrying out of *that procedure/*those procedures on the *sample/*samples. Parentage testing procedure affidavit by/in relation to donor Part 2 Part 2 must be completed on behalf of a child or adult who is not capable of swearing or affirming the affidavit. Under section 28 of the Act, a parentage testing procedure must not be carried out in relation to a child without the consent of a parent or guardian of the child. 1 I am the (state relationship or other status in relation to the donor) of (name of donor) who was born on (date of birth of donor). 2 (Name of donor) is the person appearing in the photograph attached to this affidavit, being Attachment ‘A’. 3 (Name of donor) is a person whose racial background is (give details). 4 In the last 2 years: (a) the donor *has/*has not suffered from leukaemia. (b) the donor *has/*has not received a bone marrow transplant. *5 The particulars of the *leukaemia/*bone marrow transplant are as follows: (give particulars) 6 The donor *has/*has not received a transfusion of blood or a blood product within the last 6 months. *7 The particulars of the transfusion of blood or blood product are as follows: (give particulars) 8 I consent to: (a) the taking of *a bodily sample/*bodily samples from the donor on (insert date sample is to be taken) at (insert place sample is to be taken) for the purposes of *a parentage testing procedure/*parentage testing procedures, and (b) the carrying out of *that procedure/*those procedures on the *sample/*samples. *SWORN/*AFFIRMED by the deponent at on20. (Signature of deponent) Before me: (Signature of person before whom the affidavit is sworn or affirmed) Attach a recent photograph of the donor named in the affidavit, measuring approximately 45 millimetres by 35 millimetres, that shows a full face view of the donor’s head and the donor’s shoulders against a plain background. The photograph must be marked ‘A’, and must bear a statement, signed by both the person before whom the affidavit is sworn or affirmed and the deponent, identifying it as the photograph mentioned in the affidavit. *Delete if not applicable. Form 2 - Parentage testing procedure collection of bodily sample statement by sampler Parentage testing procedure collection of bodily sample statement by sampler (Status of Children Act 1996) (Clause 11) Name of child whose parentage is in issue: 1 I, (name of sampler), of (professional address), (occupation), took the bodily *sample/*samples specified below at (time) *am/*pm on (date) at (place of collection) from the following *person/*persons: (a) (name of person and type of bodily sample stated and person’s photograph affixed), *(b) (name of person and type of bodily sample stated and person’s photograph affixed), *(c) (name of person and type of bodily sample stated and person’s photograph affixed), *(d) (name of person and type of bodily sample stated and person’s photograph affixed). 2 When I took the bodily *sample/*samples specified above, I strictly observed the procedures provided under the Status of Children Regulation 2008. 3 I placed *the bodily sample/*each of the bodily samples specified above in a container that was immediately sealed and then labelled in accordance with clause 10 of the Status of Children Regulation 2008. Dated20. (Signature of sampler) *Delete if not applicable. Form 3 - Report Report (Status of Children Act 1996) (Clause 14) Name of child whose parentage is in issue: Report Part 1 1 I, (name of nominated reporter), of (address), am a person nominated by the laboratory specified below to prepare a report in accordance with clause 14 of the Status of Children Regulation 2008. 2 I report that a parentage testing *procedure/*procedures, being: *(a) red cell antigen blood grouping, *(b) red cell enzyme blood grouping, *(c) testing for serum markers, *(d) HLA tissue typing, *(e) DNA typing, *has/*have been carried out on the bodily *sample/*samples contained in the sealed *container/*containers bearing the *name/names of the following *donor/*donors: (a) (donor’s name, date of birth and relationship to the child whose parentage is in issue), *(b) (donor’s name, date of birth and relationship to the child whose parentage is in issue), *(c) (donor’s name, date of birth and relationship to the child whose parentage is in issue), *(d) (donor’s name, date of birth and relationship to the child whose parentage is in issue). 3 Each bodily sample referred to in item 2 is the same bodily sample as the bodily sample specified in the statement completed on (date) by (name of sampler) in accordance with clause 11 of the Status of Children Regulation 2008. 4 The parentage testing *procedure was/*procedures were carried out at (name of laboratory or laboratories). 5 The results of the parentage testing *procedure/*procedures are set out in Part 2 of this report. *6 I report that the results of the parentage testing *procedure/ *procedures carried out on the bodily *sample/*samples of the donors specified above show that (name of putative parent) is not excluded from identification as the *father/*mother of (name of child whose parentage is in issue). [OR] *6 I report that the results of the parentage testing *procedure/ *procedures carried out on the bodily *sample/*samples of the donors specified above show that (name of putative parent) is excluded from identification as the *father/*mother of (name of child whose parentage is in issue). *7 I further report that the probability that (name of putative parent) is the genetic *father/*mother of (name of child whose parentage is in issue) has been calculated as follows: ______________________________________________________ |______________________________________________________| |______________________________________________________| [OR] *7 I further report that the exclusion is based on contradictions to the laws of genetic inheritance in (amount) of the (amount) genetic markers tested. The contradictions occurred in the following genetic markers: (names of genetic markers and whether the contradictions were of the first or second order). *8 I further report (if necessary, provide further explanation of results detailed in items 6 and 7). Dated20. (Signature of nominated reporter) Report Part 2 1 The bodily *sample/*samples referred to in Part 1 *was/*were received at (name of laboratory at which the parentage testing *procedure was/*procedures were carried out) on20. 2 The following identification numbers were allocated respectively to the bodily *sample/*samples in the *container/*containers in which the *procedure was/*procedures were carried out: (a) (name of person and identification number), *(b) (name of person and identification number), *(c) (name of person and identification number), *(d) (name of person and identification number). 3 The results obtained from the parentage testing *procedure/ *procedures are as follows: (set out the results) *4 The results set out in item 3 refer to the parentage testing *procedure/*procedures carried out *by me/*under my supervision on (date). The bodily *sample was/*samples were tested against the same reagents and in parallel with appropriate known controls. Results from controls show that all reagents were of correct specificity and normal potency. I am satisfied that the results obtained are true and that they have been correctly transcribed from the laboratory records. [OR] *4 The results set out in item 3 refer to the parentage testing *procedure/*procedures carried out *by me/*under my supervision on (date). The bodily *sample was/*samples were tested with the same probes/primers and in parallel with appropriate known controls. Fragment length and/or hybridisation patterns were in accordance with scientifically accepted standards. I am satisfied that the results obtained have been correctly coded from the fragment and/or hybridisation pattern and that they have been correctly transcribed from the laboratory records. Dated20. (Signature of person who carried out parentage testing procedure or person under whose supervision procedure was carried out) *Delete if not applicable. Form 4 - Paternity acknowledgment Paternity acknowledgment (Status of Children Act 1996, section 19) (Clause 15 (1)) Paternity acknowledgment Note: SIGNATURES MUST BE WITNESSED BY AN AUSTRALIAN LEGAL PRACTITIONER OR BY AN OFFICER OF THE REGISTRY OF BIRTHS, DEATHS AND MARRIAGES NOMINATED BY THE REGISTRAR. IF A PARTY IS UNAVAILABLE TO SIGN THIS FORM, THE LAST KNOWN ADDRESS OF THE PERSON SHOULD BE PROVIDED IN THE APPROPRIATE SECTION IMMEDIATELY BELOW. ___________________________________________ |I |I | |___________________________________________| |___________________________________________| |___________________________________________| hereby acknowledge that we are the natural mother and father of the child named below. We request that the Registrar include details of the father (as stated below) on the birth record of the child. Paternity acknowledgment CHILD’S PARTICULARS _______________________________________ |_______________________________________| |_______________________________________| |__________________________________| Paternity acknowledgment FATHER’S PARTICULARS (at time of child’s birth) _______________________________________ |_______________________________________| |_______________________________________| |___________________________| This acknowledgment is made believing that the information provided is true to the best of our knowledge and belief. ___________________________________________________________________________ | | | |___________________________________________________________________________| |___________________________________________________________________________| |___________________________________________________________________________| |___________________________________________________________________________| |___________________________________________________________________________| |___________________________________________________________________________| | | | |(name, address and telephone no. of |(name, address and telephone no. of | |___________________________________________________________________________| STATUS OF CHILDREN REGULATION 2008 - NOTES See also: Statute Law (Miscellaneous Provisions) Bill 2012 STATUS OF CHILDREN REGULATION 2008 - NOTES Her Excellency the Governor, with the advice of the Executive Council, has made the following Regulation under the Status of Children Act 1996. Attorney General STATUS OF CHILDREN REGULATION 2008 - NOTES Explanatory note The object of this Regulation is to remake, with some changes, the provisions of the Status of Children Regulation 2003, which is to be repealed by section 10 (2) of the Subordinate Legislation Act 1989 on 1 September 2008. This Regulation makes provision with respect to the following: (a) parentage testing procedures and reports on such procedures, (b) the form in which an acknowledgment of paternity is to be made and the persons who may witness such an acknowledgment, (c) the persons (in addition to those specified in section 21 (1) of the Status of Children Act 1996) who can apply to the Supreme Court for declarations of parentage, (d) matters of a savings and transitional nature. The new Regulation removes certain requirements that are not consistent with the Family Law Regulations 1984 of the Commonwealth. This Regulation is made under the Status of Children Act 1996, including the definition of "parentage testing procedure" in section 3 (1) and sections 19 (1) (a) and (b), 21 (1) (e), 33 (2) (c) and 36 (the general regulation-making power). This Regulation comprises or relates to matters set out in Schedule 3 to the Subordinate Legislation Act 1989, namely, matters that are not likely to impose an appreciable burden, cost or disadvantage on any sector of the public. STATUS OF CHILDREN REGULATION 2008 - NOTES Historical notes The following abbreviations are used in the Historical notes: ______________________________________________________________________ |______________________________________________________________________| |______________________________________________________________________| |______________________________________________________________________| |______________________________________________________________________| |______________________________________________________________________| |______________________________________________________________________| |______________________________________________________________________| Table of amending instrumentsStatus of Children Regulation 2008 (365). GG No 100 of 22.8.2008, p 7843. Date of commencement, 1.9.2008, cl 2.