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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
CHILD PROTECTION
(INTERNATIONAL
MEASURES) BILL 2003
Queensland
CHILD PROTECTION (INTERNATIONAL
MEASURES) BILL 2003
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2 Commencement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3 Main purposes of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4 Application of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7 Circumstances in which Queensland court may exercise jurisdiction . . . . . 7
PART 2--JURISDICTION FOR THE PERSON OF A CHILD
8 Application of this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9 Matters relating to jurisdiction for the person of a child. . . . . . . . . . . . . . . . 9
10 Limitation when a child is wrongfully removed from or retained
outside a Convention country . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11 Limitations concerning prior proceedings in a Convention country . . . . . . . 10
12 If a Queensland authority is asked to assume jurisdiction . . . . . . . . . . . . . . 11
13 Limitation if a competent authority of Convention country is asked to
assume jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
14 When a certain Queensland personal protection measure lapses . . . . . . . . . 12
PART 3--JURISDICTION FOR DECISIONS ABOUT A
GUARDIAN OF A CHILD'S PROPERTY
15 Application of this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
16 Matters relating to jurisdiction to appoint, or determine the powers of,
a guardian of a child's property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
17 Limitation when a child is wrongfully removed from or retained
outside a Convention country . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2
Child Protection (International Measures) Bill 2003
18 Limitations when prior proceedings pending in a Convention country . . . . 14
19 If Queensland authority is asked to assume jurisdiction . . . . . . . . . . . . . . . . 16
20 Limitation if a competent authority of a Convention country is asked
to assume jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
21 When a certain Queensland property protection measure lapses . . . . . . . . . 18
PART 4--APPLICABLE LAW
22 Applicable law generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
PART 5--RECOGNITION OF FOREIGN MEASURES AND THEIR
ENFORCEMENT IN QUEENSLAND
23 Action on receipt of foreign personal protection measure . . . . . . . . . . . . . . 20
24 Action on receipt of foreign property protection measure . . . . . . . . . . . . . . 22
25 Recognition of foreign measures in Queensland courts . . . . . . . . . . . . . . . . 22
26 Cancellation of registered foreign measure and related matters . . . . . . . . . . 23
27 Matters relevant for Queensland court in proceeding under s 23 or 26 . . . . 24
28 Recognition and enforcement of Queensland measure . . . . . . . . . . . . . . . . . 24
PART 6--CO-OPERATION AND OTHER MATTERS
29 Department is Queensland's central authority. . . . . . . . . . . . . . . . . . . . . . . . 25
30 Functions of department . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
31 Obligation to obtain consent to place child . . . . . . . . . . . . . . . . . . . . . . . . . . 26
32 Obligation to inform competent authority about serious danger to a child. . 26
33 Proceedings etc. for contact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
34 Giving information to central authorities and competent authorities in
Convention countries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
PART 7--MISCELLANEOUS
35 Helping person in relation to Queensland measure. . . . . . . . . . . . . . . . . . . . 28
36 Helping person in relation to foreign measure . . . . . . . . . . . . . . . . . . . . . . . 29
37 Delegation by chief executive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
38 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
39 Acts amended in schs 2 and 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 31
CHILD PROTECTION CONVENTION
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . 55
AMENDMENTS OF ACTS
3
Child Protection (International Measures) Bill 2003
CHILD PROTECTION ACT 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
CHILDRENS COURT ACT 1992. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
PUBLIC TRUSTEE ACT 1978. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SUPREME COURT ACT 1995. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SCHEDULE 3 . . . . . . . . . . . . . . . . . . . . . . . . 57
OTHER AMENDMENTS OF ACTS
CHILD PROTECTION ACT 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
CHILD PROTECTION AMENDMENT ACT 2000. . . . . . . . . . . . . . . . . . . 68
JUVENILE JUSTICE ACT 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SCHEDULE 4 . . . . . . . . . . . . . . . . . . . . . . . . 71
DICTIONARY
2003
A BILL
FOR
An Act to provide for Queensland's involvement in relation to 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 other purposes
s1 6 s4
Child Protection (International Measures) Bill 2003
The Parliament of Queensland enacts-- 1
PART 1--PRELIMINARY 2
1 Short title 3
This Act may be cited as the Child Protection (International Measures) 4
Act 2003. 5
2 Commencement 6
Schedule 3 commences on a day to be fixed by proclamation. 7
3 Main purposes of Act 8
The main purposes of this Act are to recognise-- 9
(a) the importance of international co-operation for the protection of 10
children; and 11
(b) the need to avoid conflict between the legal systems of different 12
countries about the jurisdiction, applicable law, recognition and 13
enforcement of measures for the protection of children; and 14
(c) that a child's best interests are a primary consideration in relation 15
to a measure for protecting the person of the child or a measure 16
for protecting the child's property. 17
4 Application of Act 18
(1) This Act does not apply to a matter to which the Child Protection 19
Convention does not apply under Article 4 of the Convention. 20
(2) This Act does not apply in relation to matters dealt with under an 21
arrangement with New Zealand under the Child Protection Act 1999, 22
chapter 7, parts 1 to 6.1 23
1 Child Protection Act 1999, chapter 7 (Interstate transfers of child protection orders
and proceedings)
s5 7 s7
Child Protection (International Measures) Bill 2003
(3) To the extent that this Act and an arrangement referred to in 1
subsection (2) are inconsistent in providing for the exercise of jurisdiction 2
by a Queensland authority or a competent authority in a Convention 3
country, this Act prevails. 4
(4) In addition to measures to which the Child Protection Convention 5
applies under Article 53, this Act applies to a measure taken in another 6
country before the Convention has entered into force for that country if, at 7
all relevant times that action is taken under this Act in relation to the 8
measure, the Convention is in force for that country and Australia. 9
5 Act binds all persons 10
This Act binds all persons, including the State. 11
6 Definitions 12
(1) The dictionary in schedule 4 defines particular words used in this 13
Act. 14
(2) Unless the contrary intention appears, expressions used-- 15
(a) in this Act; or 16
(b) in regulations made for the purposes of this Act; 17
have the same meaning as they have in the Child Protection Convention. 18
7 Circumstances in which Queensland court may exercise 19
jurisdiction 20
(1) If, under this Act, a Queensland court may exercise jurisdiction for a 21
matter, the court may exercise the jurisdiction for the matter-- 22
(a) on application by the department or the public trustee; or 23
(b) on its own initiative. 24
s8 8 s8
Child Protection (International Measures) Bill 2003
(2) For this Act, the department and public trustee may make 1
applications to a Queensland court.2 2
(3) Subsections (1) and (2) are not limited by, and do not limit, a 3
provision made by or under this Act or another Act that states other persons 4
may make an application under this Act or otherwise make a request to a 5
Queensland court. 6
7
Example for subsection (3)--
8
As mentioned in section 16(2)(b)(iii), a Queensland authority may exercise jurisdiction
9
in relation to a child habitually resident in a Convention country only if the Queensland
10
authority is requested to assume the jurisdiction by, or at the invitation of, a competent
11
authority of the country of the child's habitual residence or country of refuge.
PART 2--JURISDICTION FOR THE PERSON OF A 12
CHILD 13
8 Application of this part 14
(1) This part applies only if an issue under Queensland law is whether a 15
Queensland court or the department, as opposed to any of the following 16
authorities, is to take measures directed to the protection of the person of a 17
child-- 18
(a) a central authority or competent authority of a Convention 19
country; 20
(b) a competent authority of a non-Convention country. 21
(2) This part does not apply if an issue under Queensland law is whether 22
a Queensland court or the department, as opposed to another competent 23
2 Section 29(2) states--
(2) If the department must or may perform a function or exercise a power under
this Act, including under any of the following, the chief executive is responsible for
performing the function or exercising the power--
(a) a Queensland measure;
(b) a foreign measure recognised by registration under section 25;
(c) an order of a Queensland court under this Act, other than a Queensland
measure.
s9 9 s9
Child Protection (International Measures) Bill 2003
authority of Australia, is to take measures directed to the protection of the 1
person of a child. 2
9 Matters relating to jurisdiction for the person of a child 3
(1) This section applies if a Queensland authority has jurisdiction under 4
Queensland law, apart from this Act, for a Queensland personal protection 5
measure in relation to a child. 6
(2) The Queensland authority may exercise jurisdiction for a Queensland 7
personal protection measure only in relation to-- 8
(a) a child who is present and habitually resident in Australia; or 9
(b) a child who is present in Australia and habitually resident in a 10
Convention country, if-- 11
(i) the child's protection requires taking the measure as a 12
matter of urgency; or 13
(ii) the measure is provisional and limited in its territorial effect 14
to Australia; or 15
(iii) the child is a refugee child; or 16
(iv) a request to assume jurisdiction is made to the Queensland 17
authority by a competent authority of the country of the 18
child's habitual residence; or 19
(v) a competent authority of the country of the child's habitual 20
residence agrees to the Queensland authority assuming 21
jurisdiction; or 22
(c) a child who is present in a Convention country, if-- 23
(i) the child is habitually resident in Australia; or 24
(ii) the child has been wrongfully removed from or retained 25
outside Australia and Queensland authorities keep 26
jurisdiction under Article 7 of the Child Protection 27
Convention; or 28
(iii) a request to assume jurisdiction is made to the Queensland 29
authority by a competent authority of the country of the 30
child's habitual residence or country of refuge; or 31
(iv) a competent authority of the country of the child's habitual 32
residence or country of refuge agrees to the Queensland 33
authority assuming jurisdiction; or 34
s 10 10 s 11
Child Protection (International Measures) Bill 2003
(d) a child who is present in Australia and is a refugee child; or 1
(e) a child who is present in a non-Convention country, if-- 2
(i) the child is habitually resident in Australia; or 3
(ii) the child is habitually resident in a non-Convention country 4
and is an Australian citizen; or 5
(f) a child who is present in Australia, if the child is habitually 6
resident in a non-Convention country. 7
(3) The Queensland authority may only exercise jurisdiction under 8
subsection (2)(b)(ii) if the measure is not incompatible with a foreign 9
measure already taken by a competent authority of a Convention country 10
under Articles 5 to 10 of the Child Protection Convention. 11
(4) Subsection (2)(a) to (d) is subject to the limitations in sections 10, 11 12
and 13. 13
10 Limitation when a child is wrongfully removed from or retained 14
outside a Convention country 15
A Queensland authority must not, other than in a case of urgency, 16
exercise jurisdiction under section 9(2)(a), (b), (c) or (d) to take a 17
Queensland personal protection measure relating to a child if-- 18
(a) the child has been wrongfully removed from or retained outside a 19
Convention country; and 20
(b) an authority of the Convention country keeps jurisdiction under 21
Article 7 of the Child Protection Convention. 22
Limitations concerning prior proceedings in a Convention
11 23
country 24
(1) This section applies to the exercise of jurisdiction by a Queensland 25
authority under section 9(2)(b)(iii) to (v) or (c). 26
(2) If the Queensland authority is a Queensland court, before the court 27
exercises the jurisdiction, it must order the department-- 28
(a) to use the department's best efforts to consult with the competent 29
authorities in the Convention country to find out whether 30
measures relating to the protection of the person of the child have 31
been sought from the competent authorities; and 32
s 12 11 s 13
Child Protection (International Measures) Bill 2003
(b) to report to the court about the outcome of those efforts. 1
(3) If the Queensland authority is the department, before the department 2
exercises the jurisdiction, the department must use its best efforts to consult 3
with the competent authorities in the Convention country-- 4
(a) to find out whether measures relating to the protection of the 5
person of the child have been sought from the competent 6
authorities; and 7
(b) to decide the most appropriate course of action. 8
12 If a Queensland authority is asked to assume jurisdiction 9
(1) A Queensland authority may, if it considers that it is in the child's 10
best interests, accept or reject a request made under Article 8 of the Child 11
Protection Convention by a competent authority of a Convention country 12
for the Queensland authority to assume jurisdiction to take a Queensland 13
personal protection measure relating to the child. 14
(2) If the Queensland authority is a Queensland court, the court may 15
order the department to do both of the following in a way that the 16
department considers appropriate-- 17
(a) to request, under Article 9 of the Child Protection Convention, 18
that a competent authority of a Convention country agree to the 19
Queensland court assuming jurisdiction to take a Queensland 20
personal protection measure relating to the child; 21
(b) to report to the court about the outcome of the request. 22
(3) The Queensland court may only make the order under subsection (2) 23
if it considers that it is better placed than the competent authority to assess 24
the child's best interests. 25
13 Limitation if a competent authority of Convention country is 26
asked to assume jurisdiction 27
(1) A Queensland court may order the department to request, in a way 28
the department considers appropriate, a competent authority described in 29
Article 8, paragraph 2 of the Child Protection Convention-- 30
(a) to assume jurisdiction under Article 8 of the Convention for 31
protecting the person of a child; and 32
s 14 12 s 14
Child Protection (International Measures) Bill 2003
(b) as the competent authority considers necessary, to take measures 1
to protect the person of a child; and 2
(c) to report to the court about the outcome of the request. 3
(2) In addition, the Queensland court may make any other order it 4
considers necessary for an order under subsection (1). 5
(3) The Queensland court may only make the order under subsection (1) 6
if the court considers that the competent authority is better placed to assess 7
the child's best interests. 8
(4) The Queensland court may accept or reject a request under Article 9 9
of the Child Protection Convention made by a competent authority of a 10
Convention country described in Article 8, paragraph 2 of the Convention, 11
for the competent authority to assume jurisdiction to take a measure for 12
protecting the person of the child. 13
(5) If the competent authority assumes jurisdiction under the request, a 14
Queensland court must not exercise jurisdiction under section 9(2)(a), 15
(b)(iii) to (v), (c) or (d), while the competent authority continues to exercise 16
its jurisdiction. 17
14 When a certain Queensland personal protection measure lapses 18
(1) A Queensland personal protection measure relating to a child that is 19
taken in response to a particular situation by a Queensland authority 20
exercising jurisdiction under section 9(2)(b)(i) or (ii) lapses if a foreign 21
personal protection measure relating to the child, that is taken in response 22
to the same situation, is recognised by registration under section 25. 23
(2) A Queensland personal protection measure relating to a child that is 24
taken in response to a particular situation by a Queensland authority 25
exercising jurisdiction in a case of urgency, or in the taking of a measure of 26
a provisional character, lapses if-- 27
(a) a measure for protecting the person of the child, that is taken in 28
response to the same situation, is taken by a competent authority 29
of a non-Convention country; and 30
(b) the measure is recognised under Queensland law or under the law 31
of another State. 32
s 15 13 s 16
Child Protection (International Measures) Bill 2003
PART 3--JURISDICTION FOR DECISIONS ABOUT A 1
GUARDIAN OF A CHILD'S PROPERTY 2
15 Application of this part 3
(1) This part applies only if an issue under Queensland law is whether a 4
Queensland court or the public trustee, as opposed to any of the following 5
authorities, is to appoint, or determine the powers of, a guardian of a child's 6
property-- 7
(a) a central authority or competent authority of a Convention 8
country; 9
(b) a competent authority of a non-Convention country. 10
(2) This part does not apply if an issue under Queensland law is whether 11
a Queensland court or the public trustee, as opposed to another competent 12
authority of Australia, is to appoint, or determine the powers of, a guardian 13
of a child's property. 14
16 Matters relating to jurisdiction to appoint, or determine the 15
powers of, a guardian of a child's property 16
(1) This section applies if a Queensland authority has jurisdiction under 17
Queensland law, apart from this Act, for a Queensland property protection 18
measure in relation to a child. 19
(2) The Queensland authority may exercise jurisdiction for a Queensland 20
property protection measure only in relation to-- 21
(a) a child who is habitually resident in Australia; or 22
(b) a child who is habitually resident in a Convention country, if-- 23
(i) the protection of the child's property in Australia requires 24
taking the measure as a matter of urgency; or 25
(ii) the measure is provisional and limited in its territorial effect 26
to property in Australia; or 27
(iii) a request to assume jurisdiction is made to the Queensland 28
authority by, or at the invitation of, a competent authority of 29
the country of the child's habitual residence or country of 30
refuge; or 31
s 17 14 s 18
Child Protection (International Measures) Bill 2003
(iv) a competent authority of the country of the child's habitual 1
residence or country of refuge agrees to the Queensland 2
authority assuming jurisdiction; or 3
(v) the child has been wrongfully removed from or retained 4
outside Australia and Queensland authorities keep 5
jurisdiction under Article 7 of the Child Protection 6
Convention; or 7
(c) a child who is present in Australia and is a refugee child; or 8
(d) a child who is present in a non-Convention country, if-- 9
(i) the child is habitually resident in Australia; or 10
(ii) the child is habitually resident in a non-Convention country 11
and is an Australian citizen; or 12
(e) a child who is present in Australia, if the child is habitually 13
resident in a non-Convention country. 14
(3) The Queensland authority may only exercise jurisdiction under 15
subsection (2)(b)(ii) if the measure is not incompatible with a foreign 16
measure already taken by a competent authority of a Convention country 17
under Articles 5 to 10 of the Child Protection Convention. 18
(4) Subsection (2)(a) to (c) is subject to the limitations in sections 17, 18 19
and 20. 20
17 Limitation when a child is wrongfully removed from or retained 21
outside a Convention country 22
A Queensland authority must not, other than in a case of urgency, 23
exercise jurisdiction under section 16(2)(a), (b) or (c) to take a Queensland 24
property protection measure relating to a child if-- 25
(a) the child has been wrongfully removed from or retained outside a 26
Convention country; and 27
(b) an authority of the Convention country keeps jurisdiction under 28
Article 7 of the Child Protection Convention. 29
18 Limitations when prior proceedings pending in a Convention 30
country 31
(1) This section applies to the exercise of jurisdiction by a Queensland 32
authority under section 16(2)(a), (b)(iii) to (v) or (c). 33
s 18 15 s 18
Child Protection (International Measures) Bill 2003
(2) The Queensland authority must not exercise that jurisdiction to take a 1
Queensland property protection measure relating to a child if-- 2
(a) a corresponding measure has been sought from a competent 3
authority of a Convention country and it was sought-- 4
(i) if the Queensland authority is a Queensland court--before 5
the proceedings were started in the court; or 6
(ii) if the Queensland authority is the public trustee--before the 7
public trustee exercises the jurisdiction; and 8
(b) any of the following applies-- 9
(i) the child is habitually resident in the Convention country; 10
(ii) the child is present in the Convention country and is a 11
refugee child; 12
(iii) a request to assume jurisdiction is made to a competent 13
authority of the country of the child's habitual residence or 14
country of refuge; 15
(iv) a competent authority of the country of the child's habitual 16
residence or country of refuge agrees to the competent 17
authority assuming jurisdiction; 18
(v) the competent authority of the Convention country is 19
exercising jurisdiction in proceedings concerning the 20
divorce or separation of the child's parents or the annulment 21
of their marriage (but see subsection (3)); 22
(vi) the child has been wrongfully removed from or retained 23
outside the Convention country and a competent authority 24
of the Convention country keeps jurisdiction under Article 7 25
of the Child Protection Convention. 26
(3) Subsection (2)(b)(v) only applies (subject to subsection (4)) if-- 27
(a) one or both of the child's parents are habitually resident in the 28
Convention country when the proceedings referred to in that 29
subparagraph are started; and 30
(b) one or both of the parents have parental responsibility for the 31
child; and 32
(c) the jurisdiction of the competent authority of the Convention 33
country to take the measure is accepted by the parents and each 34
other person with parental responsibility for the child; and 35
s 19 16 s 19
Child Protection (International Measures) Bill 2003
(d) the exercise of jurisdiction to take the measure is in the best 1
interests of the child; and 2
(e) the proceedings on the application for divorce or separation of 3
the child's parents or the annulment of their marriage have not 4
been finalised. 5
(4) Subsection (2) does not apply if the competent authority of the 6
Convention country has declined jurisdiction or is no longer considering 7
taking the measure sought. 8
19 If Queensland authority is asked to assume jurisdiction 9
(1) A Queensland court may, if it considers that it is in the child's best 10
interests, accept or reject a request made under Article 8 of the Child 11
Protection Convention by, or at the invitation of, a competent authority of a 12
Convention country for the Queensland court to assume jurisdiction to take 13
a Queensland property protection measure relating to the child. 14
(2) A Queensland court may order, or invite the parties to proceedings 15
before the court to ask, the department or the public trustee to do both of 16
the following in a way that the department or the public trustee considers 17
appropriate-- 18
(a) to request, under Article 9 of the Child Protection Convention, 19
that a competent authority of a Convention country agree to the 20
Queensland court assuming jurisdiction to take a Queensland 21
property protection measure relating to the child; 22
(b) to report to the court about the outcome of the request. 23
(3) The public trustee must-- 24
(a) apply to a Queensland court, under the Public Trustee Act 1978, 25
for an order that the public trustee may accept a request, under 26
Article 9 of the Child Protection Convention, for the public 27
trustee to assume jurisdiction to take a Queensland property 28
protection measure relating to the child that the public trustee 29
consider necessary; or 30
(b) reject the request. 31
(4) The Queensland court may only-- 32
(a) make the order, or issue the invitation, under subsection (2) if it 33
considers that it is better placed than the competent authority to 34
assess the child's best interests; or 35
s 20 17 s 20
Child Protection (International Measures) Bill 2003
(b) make the order under subsection (3)(a) if it considers that the 1
public trustee is better placed than the competent authority to 2
assess the child's best interests. 3
20 Limitation if a competent authority of a Convention country is 4
asked to assume jurisdiction 5
(1) A Queensland court may order, or invite the parties to proceedings 6
before the court to ask, the department or the public trustee to request, in a 7
way the department or the public trustee considers appropriate, a 8
competent authority described in Article 8, paragraph 2 of the Child 9
Protection Convention-- 10
(a) to assume jurisdiction under Article 8 of the Convention for 11
appointing, or deciding the powers of, a guardian of the child's 12
property; and 13
(b) as the competent authority considers necessary, to take a measure 14
appointing, or deciding the powers of, a guardian of the child's 15
property; and 16
(c) to report to the court about the outcome of the request. 17
(2) In addition, the Queensland court may make any other order it 18
considers necessary for an order under subsection (1). 19
(3) The Queensland court may only make the order or issue the 20
invitation under subsection (1) if the court considers that the competent 21
authority is better placed to assess the child's best interests. 22
(4) The Queensland court may accept or reject a request under Article 9 23
of the Child Protection Convention made by, or at the invitation of, a 24
competent authority of a Convention country described in Article 8, 25
paragraph 2 of the Convention, for the competent authority to assume 26
jurisdiction to take measures for the protection of the child's property. 27
(5) If the competent authority assumes jurisdiction under the request, a 28
Queensland court must not exercise jurisdiction under section 16(2)(a), 29
(b)(iii) to (v) or (c) while the competent authority continues to exercise its 30
jurisdiction. 31
s 21 18 s 21
Child Protection (International Measures) Bill 2003
21 When a certain Queensland property protection measure lapses 1
(1) A Queensland property protection measure relating to a child that is 2
taken in response to a particular situation by a Queensland authority 3
exercising jurisdiction under section 16(2)(b)(i) or (ii) lapses if-- 4
(a) a foreign property protection measure relating to the child, that is 5
taken in response to the same situation, is taken by a competent 6
authority of a Convention country; and 7
(b) any of the following applies-- 8
(i) the child is habitually resident in the Convention country; 9
(ii) the child is present in the Convention country and is a 10
refugee child; 11
(iii) a request to assume jurisdiction is made to the competent 12
authority of the Convention country by, or at the invitation 13
of, a competent authority of the country of the child's 14
habitual residence; 15
(iv) a competent authority of the country of the child's habitual 16
residence agrees to the competent authority of the 17
Convention country assuming jurisdiction; 18
(v) a competent authority of the Convention country is 19
exercising jurisdiction in proceedings concerning the 20
divorce or separation of the child's parents or the annulment 21
of their marriage (but see subsection (2)); 22
(vi) the child has been wrongfully removed from or retained 23
outside the Convention country and a competent authority 24
of the Convention country keeps jurisdiction under Article 7 25
of the Child Protection Convention. 26
(2) Subsection (1)(b)(v) only applies if-- 27
(a) one or both of the child's parents are habitually resident in the 28
Convention country when the proceedings referred to in that 29
subparagraph are started; and 30
(b) one or both of the parents have parental responsibility for the 31
child; and 32
(c) the jurisdiction of the competent authority of the Convention 33
country to take the measure is accepted by the parents and each 34
other person with parental responsibility for the child; and 35
s 22 19 s 22
Child Protection (International Measures) Bill 2003
(d) the exercise of jurisdiction to take the measure is in the best 1
interests of the child; and 2
(e) the proceedings on the application for divorce or separation of 3
the child's parents or the annulment of their marriage have not 4
been finalised. 5
(3) A Queensland property protection measure relating to a child that is 6
taken in response to a particular situation by a Queensland authority 7
exercising jurisdiction in a case of urgency, or in the taking of a measure of 8
a provisional character, lapses if-- 9
(a) a measure for the appointment, or the determination of the 10
powers, of a guardian for the child's property, that is taken in 11
response to the same situation, is taken by a competent authority 12
of a non-Convention country; and 13
(b) the measure is recognised under Queensland law or under the law 14
of another State. 15
PART 4--APPLICABLE LAW 16
22 Applicable law generally 17
(1) This section applies to a Queensland authority exercising jurisdiction 18
under part 2 or 3. 19
(2) The Queensland authority must apply Queensland law in exercising 20
that jurisdiction, other than choice of law rules. 21
(3) However, the Queensland authority may in exceptional 22
circumstances apply or take into account the law of another country with 23
which-- 24
(a) a child has a substantial connection; or 25
(b) a child's property is substantially connected; 26
if the Queensland authority considers the protection of the person of the 27
child, or the child's property, requires the authority to do so. 28
(4) In this section-- 29
"law" does not include choice of law rules. 30
s 23 20 s 23
Child Protection (International Measures) Bill 2003
PART 5--RECOGNITION OF FOREIGN MEASURES 1
AND THEIR ENFORCEMENT IN QUEENSLAND 2
23 Action on receipt of foreign personal protection measure 3
(1) This section applies if the department is given either of the following 4
documents, together with a request for the department to take an action 5
under the Child Protection Convention-- 6
(a) a document that is a foreign personal protection measure relating 7
to a child; 8
(b) a document that, although it is not a foreign personal protection 9
measure relating to a child, states details of a foreign personal 10
protection measure relating to a child. 11
(2) After consulting with the competent authority of the country in 12
which the foreign personal protection measure was taken, the department 13
must do one of the following-- 14
(a) give the foreign personal protection measure to a registrar of a 15
Queensland court for recognition of the measure by registration 16
under section 25; 17
(b) give the foreign personal protection measure to the 18
Commonwealth central authority together with a request for the 19
Commonwealth central authority to take action under the Child 20
Protection Convention, including, for example, registration of the 21
foreign measure under the Family Law Act 1975 (Cwlth); 22
(c) exercise the department's jurisdiction under part 2; 23
(d) apply to a Queensland court for the court-- 24
(i) to exercise the court's jurisdiction under part 2; or 25
(ii) to decide whether or not the court should refuse recognition 26
of the foreign measure under subsection (3); 27
(e) agree with the competent authority that the department will not 28
do anything. 29
(3) A Queensland court may order a foreign personal protection measure 30
relating to a child be refused recognition on any of the following 31
grounds-- 32
s 23 21 s 23
Child Protection (International Measures) Bill 2003
(a) the competent authority of the Convention country did not have 1
jurisdiction under the Child Protection Convention for taking the 2
foreign personal protection measure; 3
(b) in taking the foreign personal protection measure, the competent 4
authority of the Convention country is taken to have acted 5
contrary to the fundamental principles of procedure under 6
Queensland law as mentioned in subsection (4); 7
(c) recognition of the foreign personal protection measure is 8
contrary to public policy in Queensland having regard to the 9
child's best interests; 10
(d) if the foreign personal protection measure were recognised by 11
registration under section 25, there would be no appropriate 12
means of enforcing the measure under Queensland law; 13
(e) the foreign personal protection measure is incompatible with a 14
later measure taken in a non-Convention country in which the 15
child habitually resides and, if the later measure were a foreign 16
personal protection measure, it could not be refused recognition 17
under paragraph (b) or (c); 18
(f) the foreign personal protection measure places the child in a 19
foster family or institutional care in Queensland and the 20
competent authority did not obtain the department's consent to 21
the placement before taking the measure. 22
(4) A competent authority is taken to have acted contrary to the 23
fundamental principles of procedure under Queensland law if-- 24
(a) the competent authority did not give the child, or a person with 25
parental responsibility for the child, an opportunity to be heard 26
before taking the foreign personal protection measure; and 27
(b) the competent authority did not take the foreign personal 28
protection measure as a matter of urgency. 29
(5) A person who is interested in an application by the department under 30
subsection (2)(d) may apply to the court to be joined as a party to the 31
proceeding. 32
(6) If-- 33
(a) under subsection (2)(a) the department gives a foreign personal 34
protection measure relating to a child to a registrar of a 35
Queensland court; and 36
s 24 22 s 25
Child Protection (International Measures) Bill 2003
(b) the measure authorises the performance of a medical procedure 1
or treatment on the child that is a procedure or treatment for 2
which a parent does not, under Queensland law, have authority to 3
consent; 4
the measure must be accompanied by a Family Court declaration that 5
recognition of the measure is not contrary to public policy having regard to 6
the child's best interests. 7
(7) In this section-- 8
"Family Court declaration" means a declaration by a court exercising 9
jurisdiction for proceedings under the Family Law Act 1975 (Cwlth) 10
or the Family Court Act 1997 (WA). 11
24 Action on receipt of foreign property protection measure 12
(1) This section applies if the department is given either of the following 13
documents, together with a request for the department to take an action 14
under the Child Protection Convention-- 15
(a) a document that is a foreign property protection measure relating 16
to a child; 17
(b) a document that, although it is not a foreign property protection 18
measure relating to a child, states details of a foreign property 19
protection measure relating to a child. 20
(2) The department must consider whether the foreign property 21
protection measure includes a provision directed to protecting the person of 22
the child. 23
(3) If the department considers the foreign property protection measure 24
includes a provision directed to protecting the person of the child, the 25
department must deal with the measure under section 23 as if it were a 26
foreign personal protection measure. 27
(4) If the department does not consider the foreign property protection 28
measure includes a provision directed to protecting the person of the child, 29
the department must give the measure to a registrar of a Queensland court 30
for recognition of the measure by registration under section 25. 31
25 Recognition of foreign measures in Queensland courts 32
(1) A registrar of a Queensland court must register a foreign measure 33
given to the registrar by the department under section 23 or 24. 34
s 26 23 s 26
Child Protection (International Measures) Bill 2003
(2) A foreign measure registered under subsection (1)-- 1
(a) has the same force and effect as a Queensland personal 2
protection measure or a Queensland property protection measure 3
(as appropriate); and 4
(b) prevails over an earlier measure in force in Queensland to the 5
extent the foreign measure is inconsistent with the earlier 6
measure. 7
(3) An interested person may take legal proceedings in a Queensland 8
court to enforce a foreign measure registered under subsection (1). 9
(4) Subsections (2) and (3) are subject to the cancellation of the 10
registration of the foreign measure under section 26. 11
26 Cancellation of registered foreign measure and related matters 12
(1) An interested person may apply to a Queensland court to cancel the 13
registration under section 25 of a foreign measure relating to a child. 14
(2) The Queensland court may cancel the registration of the foreign 15
measure if any of the following applies-- 16
(a) for a foreign measure that is a foreign personal protection 17
measure--the Queensland court may take a Queensland personal 18
protection measure relating to the child under part 2; 19
(b) for a foreign measure that is a foreign property protection 20
measure--the Queensland court may take a Queensland property 21
protection measure relating to the child under part 3; 22
(c) the relevant competent authority responsible for taking the 23
foreign measure did not have jurisdiction, under the Child 24
Protection Convention, for taking the measure; 25
(d) in taking the measure, the relevant competent authority is taken 26
to have acted contrary to the fundamental principles of procedure 27
under Queensland law as mentioned in subsection (3); 28
(e) recognition or enforcement of the measure in Queensland is 29
contrary to public policy taking into account the child's best 30
interests; 31
(f) for a foreign measure that is a foreign property protection 32
measure--there are no appropriate means of enforcing the 33
measure under Queensland law. 34
s 27 24 s 28
Child Protection (International Measures) Bill 2003
(3) The relevant competent authority is taken to have acted contrary to 1
the fundamental principles of procedure under Queensland law if-- 2
(a) the competent authority did not give the child, or a person with 3
parental responsibility for the child, an opportunity to be heard 4
before taking the foreign measure; and 5
(b) the competent authority did not take the foreign measure as a 6
matter of urgency. 7
27 Matters relevant for Queensland court in proceeding under s 23 8
or 26 9
(1) This section applies to a proceeding in a Queensland court under 10
section 23 or 263 about a foreign measure. 11
(2) The Queensland court is bound by findings of fact on which the 12
competent authority of the Convention country based its jurisdiction. 13
(3) Subject to section 26, the Queensland court must not review the 14
merits of the measure. 15
(4) A document of a competent authority of a Convention country is 16
admissible as evidence of the facts stated in the document. 17
(5) An affidavit of a witness who resides outside Australia, that is filed 18
in the proceeding, is admissible as evidence in the proceeding, even though 19
the witness does not attend for cross-examination in the proceeding. 20
28 Recognition and enforcement of Queensland measure 21
(1) After consulting with the central authority or a competent authority 22
of a Convention country, the department may give a Queensland personal 23
protection measure relating to a child to the central authority of the 24
Convention country for recognition and enforcement of the Queensland 25
personal protection measure in the Convention country. 26
(2) The department may give a Queensland property protection measure 27
relating to a child to the central authority of a Convention country for 28
recognition and enforcement of the Queensland property protection 29
measure in the Convention country. 30
3 Section 23 (Action on receipt of foreign personal protection measure) or 26
(Cancellation of registered foreign measure and related matters)
s 29 25 s 30
Child Protection (International Measures) Bill 2003
PART 6--CO-OPERATION AND OTHER MATTERS 1
29 Department is Queensland's central authority 2
(1) For the Child Protection Convention, the department is Queensland's 3
central authority. 4
(2) If the department must or may perform a function or exercise a 5
power under this Act, including under any of the following, the chief 6
executive is responsible for performing the function or exercising the 7
power-- 8
(a) a Queensland measure; 9
(b) a foreign measure recognised by registration under section 25; 10
(c) an order of a Queensland court under this Act, other than a 11
Queensland measure. 12
30 Functions of department 13
(1) The department's functions include co-operating with central 14
authorities of Convention countries-- 15
(a) to find solutions for the protection of particular children; and 16
(b) to help in the implementation of Queensland measures, foreign 17
measures and measures of non-Convention countries directed to 18
protecting children or their property; and 19
(c) to consider taking, or applying for, a Queensland measure 20
relating to a child-- 21
(i) at the request of a competent authority of another country if 22
the measure is a Queensland personal protection measure; 23
or 24
(ii) at the request, or at the invitation, of a competent authority 25
of another country if the measure is a Queensland property 26
protection measure; and 27
(d) to exchange information, subject to appropriate confidentiality 28
provisions; and 29
(e) to provide information on laws and services; and 30
(f) to help in locating children; and 31
s 31 26 s 32
Child Protection (International Measures) Bill 2003
(g) to provide reports on the situation of particular children; and 1
(h) to apply to Queensland courts for orders in response to requests 2
from competent authorities in Convention countries-- 3
(i) to transfer or receive jurisdiction; or 4
(ii) to take measures directed to protecting the person of a child 5
or measures directed to protecting a child's property. 6
(2) If a competent authority of a Convention country consults with the 7
department for the purpose of obtaining the department's consent to 8
placing a child with a foster family, or in institutional care, in Queensland, 9
the department must take into account the child's best interests in deciding 10
whether or not to consent. 11
(3) Subsection (1) is subject to section 34(2). 12
31 Obligation to obtain consent to place child 13
(1) A Queensland authority must obtain the consent of a competent 14
authority of a Convention country before placing a child in a foster family, 15
or in institutional care, in the Convention country. 16
(2) If the Queensland authority is a Queensland court, before placing a 17
child, the Queensland authority may order the department to consult a 18
competent authority of the Convention country concerned. 19
(3) If a Queensland court orders the department to consult, then the court 20
must provide the department with a report on the child and the reasons for 21
the proposed placement. 22
32 Obligation to inform competent authority about serious danger to 23
a child 24
(1) A Queensland authority must inform a competent authority of 25
another country about any information the Queensland authority may have 26
about any serious danger to a child-- 27
(a) whose residence has moved from Queensland to the other 28
country; or 29
(b) who is present in the other country. 30
(2) Subsection (1) has effect despite any obligation of confidentiality 31
imposed on the Queensland authority or a person by a Queensland law or 32
anything else (including a contract or professional ethics). 33
s 33 27 s 33
Child Protection (International Measures) Bill 2003
(3) A person is not liable in civil or criminal proceedings, and is not to be 1
considered to have breached any professional ethics, in respect of the 2
provision of information under subsection (1). 3
(4) Evidence of the provision of information under subsection (1) is not 4
admissible in any-- 5
(a) court (whether or not exercising jurisdiction under this Act); or 6
(b) tribunal or other body concerned with professional ethics; 7
except where that evidence is given by the person who provided the 8
information. 9
(5) In this section-- 10
"Queensland authority" includes a person carrying out duties, 11
performing functions or exercising powers as-- 12
(a) a member of the court personnel; or 13
(b) a public service employee of the department or public trustee. 14
33 Proceedings etc. for contact 15
(1) A Queensland court hearing proceedings concerning contact with a 16
child must admit into evidence and consider the findings (if any) of a 17
competent authority of a Convention country on the suitability of a parent 18
to have contact with the child. 19
(2) A Queensland court may adjourn the proceedings concerning contact 20
with a child pending the outcome of a request by a parent of the child to a 21
competent authority of a Convention country for a finding on the suitability 22
of the parent to have contact with the child. 23
(3) On the application of a parent who is an Australian resident seeking 24
to obtain or keep contact with a child, a Queensland court may-- 25
(a) admit evidence; and 26
(b) make a finding on the suitability of that parent to have contact 27
with the child; and 28
(c) specify conditions on which the contact is to be given. 29
(4) In considering a matter concerning contact with a child, the 30
department-- 31
s 34 28 s 35
Child Protection (International Measures) Bill 2003
(a) must consider evidence and the findings (if any) of a competent 1
authority of a Convention country on the suitability of a parent to 2
have contact with the child; and 3
(b) may postpone considering the matter pending the outcome of a 4
request by a parent to a competent authority of a Convention 5
country for a finding on the suitability of the parent to have 6
contact with the child. 7
34 Giving information to central authorities and competent 8
authorities in Convention countries 9
(1) This section applies to-- 10
(a) a court; and 11
(b) the Commonwealth central authority; and 12
(c) central authorities of Australia appointed as mentioned in 13
Article 29, paragraph 2, of the Child Protection Convention; and 14
(d) other competent authorities of Australia. 15
(2) If it would be consistent with this Act or the Child Protection 16
Convention to do so, a Queensland authority may give information to -- 17
(a) a court or an authority of Australia to which this section applies; 18
or 19
(b) a central authority or other competent authority of a Convention 20
country. 21
PART 7--MISCELLANEOUS 22
35 Helping person in relation to Queensland measure 23
(1) A person who is to exercise parental responsibilities under a 24
Queensland measure may apply to a Queensland authority for information 25
about the particular way in which the person may exercise the person's 26
responsibilities under the Queensland measure. 27
s 36 29 s 38
Child Protection (International Measures) Bill 2003
(2) The Queensland authority may, by written notice, give information to 1
the person about the powers conferred on the person as a parent under the 2
Queensland measure. 3
36 Helping person in relation to foreign measure 4
(1) An interested person who wants to ask a competent authority of 5
another country to vary or cancel a foreign measure may apply to the 6
department for help in sending the request to the authority. 7
(2) The department may help the interested person in relation to sending 8
the request. 9
37 Delegation by chief executive 10
(1) The chief executive may delegate the chief executive's powers to an 11
appropriately qualified officer of the department. 12
(2) In this section-- 13
"appropriately qualified" includes having the qualifications, experience 14
or standing appropriate to the exercise of the power. 15
16
Example of standing--
17
A person's classification level in the public service.
"chief executive's powers" means the powers the chief executive must or 18
may exercise under section 29.4 19
38 Regulation-making power 20
(1) The Governor in Council may make regulations under this Act. 21
(2) Without limiting subsection (1), a regulation may prescribe-- 22
(a) that a particular measure, or a particular type of measure, 23
recognised by registration under section 25 has effect as a 24
particular type of Queensland measure, as mentioned in 25
section 25(2)(a); and 26
(b) the way the measure or the type of measure has effect as the 27
particular type of Queensland measure, including the way it may 28
4 Section 29 (Department is Queensland's central authority)
s 39 30 s 39
Child Protection (International Measures) Bill 2003
be varied or otherwise dealt with under an Act applying to that 1
particular type of Queensland measure. 2
39 Acts amended in schs 2 and 3 3
(1) Schedules 2 and 3 amend the Acts mentioned in them. 4
(2) A reference in schedule 3 to a provision of the Juvenile Justice Act 5
1992 is a reference to the provision as renumbered under section 341 of 6
that Act.5 7
(3) This section expires at the beginning of the day after all of schedule 3 8
has commenced. 9
5 Juvenile Justice Act 1992, section 341 (Renumbering of Act)
31
Child Protection (International Measures) Bill 2003
SCHEDULE 1 1
CHILD PROTECTION CONVENTION 2
schedule 4, definition "Child Protection Convention" 3
CONVENTION ON JURISDICTION, APPLICABLE LAW, 4
RECOGNITION, ENFORCEMENT AND 5
CO-OPERATION IN RESPECT OF PARENTAL 6
RESPONSIBILITY AND MEASURES FOR THE 7
PROTECTION OF CHILDREN 8
The States signatory to the present Convention, 9
Considering the need to improve the protection of children in 10
international situations, 11
Wishing to avoid conflicts between their legal systems in respect of 12
jurisdiction, applicable law, recognition and enforcement of 13
measures for the protection of children, 14
Recalling the importance of international co-operation for the 15
protection of children, 16
Confirming that the best interests of the child are to be a primary 17
consideration, 18
Noting that the Convention of 5 October 1961 concerning the powers 19
of authorities and the law applicable in respect of the protection 20
of minors is in need of revision, 21
Desiring to establish common provisions to this effect, taking into 22
account the United Nations Convention on the Rights of the 23
Child of 20 November 1989, 24
Have agreed on the following provisions-- 25
32
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
CHAPTER I--SCOPE OF THE CONVENTION 1
Article 1 2
1 The objects of the present Convention are-- 3
a to determine the State whose authorities have jurisdiction to take 4
measures directed to the protection of the person or property of 5
the child; 6
b to determine which law is to be applied by such authorities in 7
exercising their jurisdiction; 8
c to determine the law applicable to parental responsibility; 9
d to provide for the recognition and enforcement of such measures 10
of protection in all Contracting States; 11
e to establish such co-operation between the authorities of the 12
Contracting States as may be necessary in order to achieve the 13
purposes of this Convention. 14
2 For the purposes of this Convention, the term `parental responsibility' 15
includes parental authority, or any analogous relationship of authority 16
determining the rights, powers and responsibilities of parents, guardians or 17
other legal representatives in relation to the person or the property of the 18
child. 19
Article 2 20
The Convention applies to children from the moment of their birth until 21
they reach the age of 18 years. 22
Article 3 23
The measures referred to in Article 1 may deal in particular with-- 24
a the attribution, exercise, termination or restriction of parental 25
responsibility, as well as its delegation; 26
b rights of custody, including rights relating to the care of the 27
person of the child and, in particular, the right to determine the 28
child's place of residence, as well as rights of access including 29
33
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
the right to take a child for a limited period of time to a place 1
other than the child's habitual residence; 2
c guardianship, curatorship and analogous institutions; 3
d the designation and functions of any person or body having 4
charge of the child's person or property, representing or assisting 5
the child; 6
e the placement of the child in a foster family or in institutional 7
care, or the provision of care by kafala or an analogous 8
institution; 9
f the supervision by a public authority of the care of a child by any 10
person having charge of the child; 11
g the administration, conservation or disposal of the child's 12
property. 13
Article 4 14
The Convention does not apply to-- 15
a the establishment or contesting of a parent-child relationship; 16
b decisions on adoption, measures preparatory to adoption, or the 17
annulment or revocation of adoption; 18
c the name and forenames of the child; 19
d emancipation; 20
e maintenance obligations; 21
f trusts or succession; 22
g social security; 23
h public measures of a general nature in matters of education or 24
health; 25
i measures taken as a result of penal offences committed by 26
children; 27
j decisions on the right of asylum and on immigration. 28
34
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
CHAPTER II--JURISDICTION 1
Article 5 2
1 The judicial or administrative authorities of the Contracting State of 3
the habitual residence of the child have jurisdiction to take measures 4
directed to the protection of the child's person or property. 5
2 Subject to Article 7, in case of a change of the child's habitual 6
residence to another Contracting State, the authorities of the State of the 7
new habitual residence have jurisdiction. 8
Article 6 9
1 For refugee children and children who, due to disturbances occurring 10
in their country, are internationally displaced, the authorities of the 11
Contracting State on the territory of which these children are present as a 12
result of their displacement have the jurisdiction provided for in 13
paragraph 1 of Article 5. 14
2 The provisions of the preceding paragraph also apply to children 15
whose habitual residence cannot be established. 16
Article 7 17
1 In case of wrongful removal or retention of the child, the authorities of 18
the Contracting State in which the child was habitually resident 19
immediately before the removal or retention keep their jurisdiction until the 20
child has acquired a habitual residence in another State, and 21
a each person, institution or other body having rights of custody 22
has acquiesced in the removal or retention; or 23
b the child has resided in that other State for a period of at least one 24
year after the person, institution or other body having rights of 25
custody has or should have had knowledge of the whereabouts of 26
the child, no request for return lodged within that period is still 27
pending, and the child is settled in his or her new environment. 28
2 The removal or the retention of a child is to be considered wrongful 29
where-- 30
35
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
a it is in breach of rights of custody attributed to a person, an 1
institution or any other body, either jointly or alone, under the 2
law of the State in which the child was habitually resident 3
immediately before the removal or retention; and 4
b at the time of removal or retention those rights were actually 5
exercised, either jointly or alone, or would have been so 6
exercised but for the removal or retention. 7
The rights of custody mentioned in sub-paragraph a above, may arise in 8
particular by operation of law or by reason of a judicial or administrative 9
decision, or by reason of an agreement having legal effect under the law of 10
that State. 11
3 So long as the authorities first mentioned in paragraph 1 keep their 12
jurisdiction, the authorities of the Contracting State to which the child has 13
been removed or in which he or she has been retained can take only such 14
urgent measures under Article 11 as are necessary for the protection of the 15
person or property of the child. 16
Article 8 17
1 By way of exception, the authority of a Contracting State having 18
jurisdiction under Article 5 or 6, if it considers that the authority of another 19
Contracting State would be better placed in the particular case to assess the 20
best interests of the child, may either 21
--request that other authority, directly or with the assistance of the 22
Central Authority of its State, to assume jurisdiction to take such 23
measures of protection as it considers to be necessary, or 24
--suspend consideration of the case and invite the parties to introduce 25
such a request before the authority of that other State. 26
2 The Contracting States whose authorities may be addressed as 27
provided in the preceding paragraph are 28
a a State of which the child is a national, 29
b a State in which property of the child is located, 30
c a State whose authorities are seised of an application for divorce 31
or legal separation of the child's parents, or for annulment of 32
their marriage, 33
36
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
d a State with which the child has a substantial connection. 1
3 The authorities concerned may proceed to an exchange of views. 2
4 The authority addressed as provided in paragraph 1 may assume 3
jurisdiction, in place of the authority having jurisdiction under Article 5 or 4
6, if it considers that this is in the child's best interests. 5
Article 9 6
1 If the authorities of a Contracting State referred to in Article 8, 7
paragraph 2, consider that they are better placed in the particular case to 8
assess the child's best interests, they may either 9
--request the competent authority of the Contracting State of the 10
habitual residence of the child, directly or with the assistance of 11
the Central Authority of that State, that they be authorised to 12
assume jurisdiction to take the measures of protection which they 13
consider to be necessary, or 14
--invite the parties to introduce such a request before the authority of 15
the Contracting State of the habitual residence of the child. 16
2 The authorities concerned may proceed to an exchange of views. 17
3 The authority initiating the request may assume jurisdiction in place of 18
the authority of the Contracting State of the habitual residence of the child 19
only if the latter authority has accepted the request. 20
Article 10 21
1 Without prejudice to Articles 5 to 9, the authorities of a Contracting 22
State exercising jurisdiction to decide upon an application for divorce or 23
legal separation of the parents of a child habitually resident in another 24
Contracting State, or for annulment of their marriage, may, if the law of 25
their State so provides, take measures directed to the protection of the 26
person or property of such child if 27
a at the time of commencement of the proceedings, one of his or 28
her parents habitually resides in that State and one of them has 29
parental responsibility in relation to the child, and 30
b the jurisdiction of these authorities to take such measures has 31
been accepted by the parents, as well as by any other person who 32
37
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
has parental responsibility in relation to the child, and is in the 1
best interests of the child. 2
2 The jurisdiction provided for by paragraph 1 to take measures for the 3
protection of the child ceases as soon as the decision allowing or refusing 4
the application for divorce, legal separation or annulment of the marriage 5
has become final, or the proceedings have come to an end for another 6
reason. 7
Article 11 8
1 In all cases of urgency, the authorities of any Contracting State in 9
whose territory the child or property belonging to the child is present have 10
jurisdiction to take any necessary measures of protection. 11
2 The measures taken under the preceding paragraph with regard to a 12
child habitually resident in a Contracting State shall lapse as soon as the 13
authorities which have jurisdiction under Articles 5 to 10 have taken the 14
measures required by the situation. 15
3 The measures taken under paragraph 1 with regard to a child who is 16
habitually resident in a non-Contracting State shall lapse in each 17
Contracting State as soon as measures required by the situation and taken 18
by the authorities of another State are recognised in the Contracting State 19
in question. 20
Article 12 21
1 Subject to Article 7, the authorities of a Contracting State in whose 22
territory the child or property belonging to the child is present have 23
jurisdiction to take measures of a provisional character for the protection of 24
the person or property of the child which have a territorial effect limited to 25
the State in question, in so far as such measures are not incompatible with 26
measures already taken by authorities which have jurisdiction under 27
Articles 5 to 10. 28
2 The measures taken under the preceding paragraph with regard to a 29
child habitually resident in a Contracting State shall lapse as soon as the 30
authorities which have jurisdiction under Articles 5 to 10 have taken a 31
decision in respect of the measures of protection which may be required by 32
the situation. 33
38
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
3 The measures taken under paragraph 1 with regard to a child who is 1
habitually resident in a non-Contracting State shall lapse in the Contracting 2
State where the measures were taken as soon as measures required by the 3
situation and taken by the authorities of another State are recognised in the 4
Contracting State in question. 5
Article 13 6
1 The authorities of a Contracting State which have jurisdiction under 7
Articles 5 to 10 to take measures for the protection of the person or 8
property of the child must abstain from exercising this jurisdiction if, at the 9
time of the commencement of the proceedings, corresponding measures 10
have been requested from the authorities of another Contracting State 11
having jurisdiction under Articles 5 to 10 at the time of the request and are 12
still under consideration. 13
2 The provisions of the preceding paragraph shall not apply if the 14
authorities before whom the request for measures was initially introduced 15
have declined jurisdiction. 16
Article 14 17
The measures taken in application of Articles 5 to 10 remain in force 18
according to their terms, even if a change of circumstances has eliminated 19
the basis upon which jurisdiction was founded, so long as the authorities 20
which have jurisdiction under the Convention have not modified, replaced 21
or terminated such measures. 22
CHAPTER III--APPLICABLE LAW 23
Article 15 24
1 In exercising their jurisdiction under the provisions of Chapter II, the 25
authorities of the Contracting States shall apply their own law. 26
2 However, in so far as the protection of the person or the property of the 27
child requires, they may exceptionally apply or take into consideration the 28
law of another State with which the situation has a substantial connection. 29
39
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
3 If the child's habitual residence changes to another Contracting State, 1
the law of that other State governs, from the time of the change, the 2
conditions of application of the measures taken in the State of the former 3
habitual residence. 4
Article 16 5
1 The attribution or extinction of parental responsibility by operation of 6
law, without the intervention of a judicial or administrative authority, is 7
governed by the law of the State of the habitual residence of the child. 8
2 The attribution or extinction of parental responsibility by an agreement 9
or a unilateral act, without intervention of a judicial or administrative 10
authority, is governed by the law of the State of the child's habitual 11
residence at the time when the agreement or unilateral act takes effect. 12
3 Parental responsibility which exists under the law of the State of the 13
child's habitual residence subsists after a change of that habitual residence 14
to another State. 15
4 If the child's habitual residence changes, the attribution of parental 16
responsibility by operation of law to a person who does not already have 17
such responsibility is governed by the law of the State of the new habitual 18
residence. 19
Article 17 20
The exercise of parental responsibility is governed by the law of the 21
State of the child's habitual residence. If the child's habitual residence 22
changes, it is governed by the law of the State of the new habitual 23
residence. 24
Article 18 25
The parental responsibility referred to in Article 16 may be terminated, 26
or the conditions of its exercise modified, by measures taken under this 27
Convention. 28
40
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
Article 19 1
1 The validity of a transaction entered into between a third party and 2
another person who would be entitled to act as the child's legal 3
representative under the law of the State where the transaction was 4
concluded cannot be contested, and the third party cannot be held liable, on 5
the sole ground that the other person was not entitled to act as the child's 6
legal representative under the law designated by the provisions of this 7
Chapter, unless the third party knew or should have known that the parental 8
responsibility was governed by the latter law. 9
2 The preceding paragraph applies only if the transaction was entered 10
into between persons present on the territory of the same State. 11
Article 20 12
The provisions of this Chapter apply even if the law designated by them 13
is the law of a non-Contracting State. 14
Article 21 15
1 In this Chapter the term "law" means the law in force in a State other 16
than its choice of law rules. 17
2 However, if the law applicable according to Article 16 is that of a 18
non-Contracting State and if the choice of law rules of that State designate 19
the law of another non-Contracting State which would apply its own law, 20
the law of the latter State applies. If that other non-Contracting State would 21
not apply its own law, the applicable law is that designated by Article 16. 22
Article 22 23
The application of the law designated by the provisions of this Chapter 24
can be refused only if this application would be manifestly contrary to 25
public policy, taking into account the best interests of the child. 26
41
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
CHAPTER IV--RECOGNITION AND ENFORCEMENT 1
Article 23 2
1 The measures taken by the authorities of a Contracting State shall be 3
recognised by operation of law in all other Contracting States. 4
2 Recognition may however be refused-- 5
a if the measure was taken by an authority whose jurisdiction was 6
not based on one of the grounds provided for in Chapter II; 7
b if the measure was taken, except in a case of urgency, in the 8
context of a judicial or administrative proceeding, without the 9
child having been provided the opportunity to be heard, in 10
violation of fundamental principles of procedure of the requested 11
State; 12
c on the request of any person claiming that the measure infringes 13
his or her parental responsibility, if such measure was taken, 14
except in a case of urgency, without such person having been 15
given an opportunity to be heard; 16
d if such recognition is manifestly contrary to public policy of the 17
requested State, taking into account the best interests of the child; 18
e if the measure is incompatible with a later measure taken in the 19
non-Contracting State of the habitual residence of the child, 20
where this later measure fulfils the requirements for recognition 21
in the requested State; 22
f if the procedure provided in Article 33 has not been complied 23
with. 24
Article 24 25
Without prejudice to Article 23, paragraph 1, any interested person may 26
request from the competent authorities of a Contracting State that they 27
decide on the recognition or non-recognition of a measure taken in another 28
Contracting State. The procedure is governed by the law of the requested 29
State. 30
42
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
Article 25 1
The authority of the requested State is bound by the findings of fact on 2
which the authority of the State where the measure was taken based its 3
jurisdiction. 4
Article 26 5
1 If measures taken in one Contracting State and enforceable there 6
require enforcement in another Contracting State, they shall, upon request 7
by an interested party, be declared enforceable or registered for the purpose 8
of enforcement in that other State according to the procedure provided in 9
the law of the latter State. 10
2 Each Contracting State shall apply to the declaration of enforceability 11
or registration a simple and rapid procedure. 12
3 The declaration of enforceability or registration may be refused only 13
for one of the reasons set out in Article 23, paragraph 2. 14
Article 27 15
Without prejudice to such review as is necessary in the application of the 16
preceding Articles, there shall be no review of the merits of the measure 17
taken. 18
Article 28 19
Measures taken in one Contracting State and declared enforceable, or 20
registered for the purpose of enforcement, in another Contracting State 21
shall be enforced in the latter State as if they had been taken by the 22
authorities of that State. Enforcement takes place in accordance with the 23
law of the requested State to the extent provided by such law, taking into 24
consideration the best interests of the child. 25
43
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
CHAPTER V--CO-OPERATION 1
Article 29 2
1 A Contracting State shall designate a Central Authority to discharge 3
the duties which are imposed by the Convention on such authorities. 4
2 Federal States, States with more than one system of law or States 5
having autonomous territorial units shall be free to appoint more than one 6
Central Authority and to specify the territorial or personal extent of their 7
functions. Where a State has appointed more than one Central Authority, it 8
shall designate the Central Authority to which any communication may be 9
addressed for transmission to the appropriate Central Authority within that 10
State. 11
Article 30 12
1 Central Authorities shall co-operate with each other and promote 13
co-operation amongst the competent authorities in their States to achieve 14
the purposes of the Convention. 15
2 They shall, in connection with the application of the Convention, take 16
appropriate steps to provide information as to the laws of, and services 17
available in, their States relating to the protection of children. 18
Article 31 19
The Central Authority of a Contracting State, either directly or through 20
public authorities or other bodies, shall take all appropriate steps to-- 21
a facilitate the communications and offer the assistance provided 22
for in Articles 8 and 9 and in this Chapter; 23
b facilitate, by mediation, conciliation or similar means, agreed 24
solutions for the protection of the person or property of the child 25
in situations to which the Convention applies; 26
c provide, on the request of a competent authority of another 27
Contracting State, assistance in discovering the whereabouts of a 28
child where it appears that the child may be present and in need 29
of protection within the territory of the requested State. 30
44
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
Article 32 1
On a request made with supporting reasons by the Central Authority or 2
other competent authority of any Contracting State with which the child 3
has a substantial connection, the Central Authority of the Contracting State 4
in which the child is habitually resident and present may, directly or 5
through public authorities or other bodies, 6
a provide a report on the situation of the child; 7
b request the competent authority of its State to consider the need 8
to take measures for the protection of the person or property of 9
the child. 10
Article 33 11
1 If an authority having jurisdiction under Articles 5 to 10 contemplates 12
the placement of the child in a foster family or institutional care, or the 13
provision of care by kafala or an analogous institution, and if such 14
placement or such provision of care is to take place in another Contracting 15
State, it shall first consult with the Central Authority or other competent 16
authority of the latter State. To that effect it shall transmit a report on the 17
child together with the reasons for the proposed placement or provision of 18
care. 19
2 The decision on the placement or provision of care may be made in the 20
requesting State only if the Central Authority or other competent authority 21
of the requested State has consented to the placement or provision of care, 22
taking into account the child's best interests. 23
Article 34 24
1 Where a measure of protection is contemplated, the competent 25
authorities under the Convention, if the situation of the child so requires, 26
may request any authority of another Contracting State which has 27
information relevant to the protection of the child to communicate such 28
information. 29
2 A Contracting State may declare that requests under paragraph 1 shall 30
be communicated to its authorities only through its Central Authority. 31
45
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
Article 35 1
1 The competent authorities of a Contracting State may request the 2
authorities of another Contracting State to assist in the implementation of 3
measures of protection taken under this Convention, especially in securing 4
the effective exercise of rights of access as well as of the right to maintain 5
direct contacts on a regular basis. 6
2 The authorities of a Contracting State in which the child does not 7
habitually reside may, on the request of a parent residing in that State who 8
is seeking to obtain or to maintain access to the child, gather information or 9
evidence and may make a finding on the suitability of that parent to 10
exercise access and on the conditions under which access is to be exercised. 11
An authority exercising jurisdiction under Articles 5 to 10 to determine an 12
application concerning access to the child, shall admit and consider such 13
information, evidence and finding before reaching its decision. 14
3 An authority having jurisdiction under Articles 5 to 10 to decide on 15
access may adjourn a proceeding pending the outcome of a request made 16
under paragraph 2, in particular, when it is considering an application to 17
restrict or terminate access rights granted in the State of the child's former 18
habitual residence. 19
4 Nothing in this Article shall prevent an authority having jurisdiction 20
under Articles 5 to 10 from taking provisional measures pending the 21
outcome of the request made under paragraph 2. 22
Article 36 23
In any case where the child is exposed to a serious danger, the competent 24
authorities of the Contracting State where measures for the protection of 25
the child have been taken or are under consideration, if they are informed 26
that the child's residence has changed to, or that the child is present in 27
another State, shall inform the authorities of that other State about the 28
danger involved and the measures taken or under consideration. 29
Article 37 30
An authority shall not request or transmit any information under this 31
Chapter if to do so would, in its opinion, be likely to place the child's 32
person or property in danger, or constitute a serious threat to the liberty or 33
life of a member of the child's family. 34
46
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
Article 38 1
1 Without prejudice to the possibility of imposing reasonable charges for 2
the provision of services, Central Authorities and other public authorities of 3
Contracting States shall bear their own costs in applying the provisions of 4
this Chapter. 5
2 Any Contracting State may enter into agreements with one or more 6
other Contracting States concerning the allocation of charges. 7
Article 39 8
Any Contracting State may enter into agreements with one or more other 9
Contracting States with a view to improving the application of this Chapter 10
in their mutual relations. The States which have concluded such an 11
agreement shall transmit a copy to the depositary of the Convention. 12
CHAPTER VI--GENERAL PROVISIONS 13
Article 40 14
1 The authorities of the Contracting State of the child's habitual 15
residence, or of the Contracting State where a measure of protection has 16
been taken, may deliver to the person having parental responsibility or to 17
the person entrusted with protection of the child's person or property, at his 18
or her request, a certificate indicating the capacity in which that person is 19
entitled to act and the powers conferred upon him or her. 20
2 The capacity and powers indicated in the certificate are presumed to be 21
vested in that person, in the absence of proof to the contrary. 22
3 Each Contracting State shall designate the authorities competent to 23
draw up the certificate. 24
Article 41 25
Personal data gathered or transmitted under the Convention shall be used 26
only for the purposes for which they were gathered or transmitted. 27
47
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
Article 42 1
The authorities to whom information is transmitted shall ensure its 2
confidentiality, in accordance with the law of their State. 3
Article 43 4
All documents forwarded or delivered under this Convention shall be 5
exempt from legalisation or any analogous formality. 6
Article 44 7
Each Contracting State may designate the authorities to which requests 8
under Articles 8, 9 and 33 are to be addressed. 9
Article 45 10
1 The designations referred to in Articles 29 and 44 shall be 11
communicated to the Permanent Bureau of the Hague Conference on 12
Private International Law. 13
2 The declaration referred to in Article 34, paragraph 2, shall be made to 14
the depositary of the Convention. 15
Article 46 16
A Contracting State in which different systems of law or sets of rules of 17
law apply to the protection of the child and his or her property shall not be 18
bound to apply the rules of the Convention to conflicts solely between such 19
different systems or sets of rules of law. 20
Article 47 21
In relation to a State in which two or more systems of law or sets of rules of 22
law with regard to any matter dealt with in this Convention apply in 23
different territorial units-- 24
1 any reference to habitual residence in that State shall be construed as 25
referring to habitual residence in a territorial unit; 26
48
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
2 any reference to the presence of the child in that State shall be 1
construed as referring to presence in a territorial unit; 2
3 any reference to the location of property of the child in that State shall 3
be construed as referring to location of property of the child in a territorial 4
unit; 5
4 any reference to the State of which the child is a national shall be 6
construed as referring to the territorial unit designated by the law of that 7
State or, in the absence of relevant rules, to the territorial unit with which 8
the child has the closest connection; 9
5 any reference to the State whose authorities are seised of an 10
application for divorce or legal separation of the child's parents, or for 11
annulment of their marriage, shall be construed as referring to the territorial 12
unit whose authorities are seised of such application; 13
6 any reference to the State with which the child has a substantial 14
connection shall be construed as referring to the territorial unit with which 15
the child has such connection; 16
7 any reference to the State to which the child has been removed or in 17
which he or she has been retained shall be construed as referring to the 18
relevant territorial unit to which the child has been removed or in which he 19
or she has been retained; 20
8 any reference to bodies or authorities of that State, other than Central 21
Authorities, shall be construed as referring to those authorised to act in the 22
relevant territorial unit; 23
9 any reference to the law or procedure or authority of the State in which 24
a measure has been taken shall be construed as referring to the law or 25
procedure or authority of the territorial unit in which such measure was 26
taken; 27
10 any reference to the law or procedure or authority of the requested 28
State shall be construed as referring to the law or procedure or authority of 29
the territorial unit in which recognition or enforcement is sought. 30
Article 48 31
For the purpose of identifying the applicable law under Chapter III, in 32
relation to a State which comprises two or more territorial units each of 33
49
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
which has its own system of law or set of rules of law in respect of matters 1
covered by this Convention, the following rules apply-- 2
a if there are rules in force in such a State identifying which 3
territorial unit's law is applicable, the law of that unit applies; 4
b in the absence of such rules, the law of the relevant territorial unit 5
as defined in Article 47 applies. 6
Article 49 7
For the purpose of identifying the applicable law under Chapter III, in 8
relation to a State which has two or more systems of law or sets of rules of 9
law applicable to different categories of persons in respect of matters 10
covered by this Convention, the following rules apply-- 11
a if there are rules in force in such a State identifying which among 12
such laws applies, that law applies; 13
b in the absence of such rules, the law of the system or the set of 14
rules of law with which the child has the closest connection 15
applies. 16
Article 50 17
This Convention shall not affect the application of the Convention of 18
25 October 1980 on the Civil Aspects of International Child Abduction, as 19
between Parties to both Conventions. Nothing, however, precludes 20
provisions of this Convention from being invoked for the purposes of 21
obtaining the return of a child who has been wrongfully removed or 22
retained or of organising access rights. 23
Article 51 24
In relations between the Contracting States this Convention replaces the 25
Convention of 5 October 1961 concerning the powers of authorities and the 26
law applicable in respect of the protection of minors, and the Convention 27
governing the guardianship of minors, signed at The Hague 12 June 1902, 28
without prejudice to the recognition of measures taken under the 29
Convention of 5 October 1961 mentioned above. 30
50
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
Article 52 1
1 This Convention does not affect any international instrument to which 2
Contracting States are Parties and which contains provisions on matters 3
governed by the Convention, unless a contrary declaration is made by the 4
States Parties to such instrument. 5
2 This Convention does not affect the possibility for one or more 6
Contracting States to conclude agreements which contain, in respect of 7
children habitually resident in any of the States Parties to such agreements, 8
provisions on matters governed by this Convention. 9
3 Agreements to be concluded by one or more Contracting States on 10
matters within the scope of this Convention do not affect, in the 11
relationship of such States with other Contracting States, the application of 12
the provisions of this Convention. 13
4 The preceding paragraphs also apply to uniform laws based on special 14
ties of a regional or other nature between the States concerned. 15
Article 53 16
1 The Convention shall apply to measures only if they are taken in a 17
State after the Convention has entered into force for that State. 18
2 The Convention shall apply to the recognition and enforcement of 19
measures taken after its entry into force as between the State where the 20
measures have been taken and the requested State. 21
Article 54 22
1 Any communication sent to the Central Authority or to another 23
authority of a Contracting State shall be in the original language, and shall 24
be accompanied by a translation into the official language or one of the 25
official languages of the other State or, where that is not feasible, a 26
translation into French or English. 27
2 However, a Contracting State may, by making a reservation in 28
accordance with Article 60, object to the use of either French or English, 29
but not both. 30
51
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
Article 55 1
1 A Contracting State may, in accordance with Article 60, 2
a reserve the jurisdiction of its authorities to take measures 3
directed to the protection of property of a child situated on its 4
territory; 5
b reserve the right not to recognise any parental responsibility or 6
measure in so far as it is incompatible with any measure taken by 7
its authorities in relation to that property. 8
2 The reservation may be restricted to certain categories of property. 9
Article 56 10
The Secretary General of the Hague Conference on Private International 11
Law shall at regular intervals convoke a Special Commission in order to 12
review the practical operation of the Convention. 13
CHAPTER VII--FINAL CLAUSES 14
Article 57 15
1 The Convention shall be open for signature by the States which were 16
Members of the Hague Conference on Private International Law at the time 17
of its Eighteenth Session. 18
2 It shall be ratified, accepted or approved and the instruments of 19
ratification, acceptance or approval shall be deposited with the Ministry of 20
Foreign Affairs of the Kingdom of the Netherlands, depositary of the 21
Convention. 22
Article 58 23
1 Any other State may accede to the Convention after it has entered into 24
force in accordance with Article 61, paragraph 1. 25
2 The instrument of accession shall be deposited with the depositary. 26
52
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
3 Such accession shall have effect only as regards the relations between 1
the acceding State and those Contracting States which have not raised an 2
objection to its accession in the six months after the receipt of the 3
notification referred to in sub-paragraph b of Article 63. Such an objection 4
may also be raised by States at the time when they ratify, accept or approve 5
the Convention after an accession. Any such objection shall be notified to 6
the depositary. 7
Article 59 8
1 If a State has two or more territorial units in which different systems of 9
law are applicable in relation to matters dealt with in this Convention, it 10
may at the time of signature, ratification, acceptance, approval or accession 11
declare that the Convention shall extend to all its territorial units or only to 12
one or more of them and may modify this declaration by submitting 13
another declaration at any time. 14
2 Any such declaration shall be notified to the depositary and shall state 15
expressly the territorial units to which the Convention applies. 16
3 If a State makes no declaration under this Article, the Convention is to 17
extend to all territorial units of that State. 18
Article 60 19
1 Any State may, not later than the time of ratification, acceptance, 20
approval or accession, or at the time of making a declaration in terms of 21
Article 59, make one or both of the reservations provided for in Articles 54, 22
paragraph 2, and 55. No other reservation shall be permitted. 23
2 Any State may at any time withdraw a reservation it has made. The 24
withdrawal shall be notified to the depositary. 25
3 The reservation shall cease to have effect on the first day of the third 26
calendar month after the notification referred to in the preceding paragraph. 27
Article 61 28
1 The Convention shall enter into force on the first day of the month 29
following the expiration of three months after the deposit of the third 30
instrument of ratification, acceptance or approval referred to in Article 57. 31
53
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
2 Thereafter the Convention shall enter into force-- 1
a for each State ratifying, accepting or approving it subsequently, 2
on the first day of the month following the expiration of three 3
months after the deposit of its instrument of ratification, 4
acceptance, approval or accession; 5
b for each State acceding, on the first day of the month following 6
the expiration of three months after the expiration of the period 7
of six months provided in Article 58, paragraph 3; 8
c for a territorial unit to which the Convention has been extended 9
in conformity with Article 59, on the first day of the month 10
following the expiration of three months after the notification 11
referred to in that Article. 12
Article 62 13
1 A State Party to the Convention may denounce it by a notification in 14
writing addressed to the depositary. The denunciation may be limited to 15
certain territorial units to which the Convention applies. 16
2 The denunciation takes effect on the first day of the month following 17
the expiration of twelve months after the notification is received by the 18
depositary. Where a longer period for the denunciation to take effect is 19
specified in the notification, the denunciation takes effect upon the 20
expiration of such longer period. 21
Article 63 22
The depositary shall notify the States Members of the Hague Conference 23
on Private International Law and the States which have acceded in 24
accordance with Article 58 of the following-- 25
a the signatures, ratifications, acceptances and approvals referred 26
to in Article 57; 27
b the accessions and objections raised to accessions referred to in 28
Article 58; 29
c the date on which the Convention enters into force in accordance 30
with Article 61; 31
d the declarations referred to in Articles 34, paragraph 2, and 59; 32
54
Child Protection (International Measures) Bill 2003
SCHEDULE 1 (continued)
e the agreements referred to in Article 39; 1
f the reservations referred to in Articles 54, paragraph 2, and 55 2
and the withdrawals referred to in Article 60, paragraph 2; 3
g the denunciations referred to in Article 62. 4
In witness whereof the undersigned, being duly authorised thereto, have 5
signed this Convention. 6
Done at The Hague, on the 19th day of October 1996, in the English and 7
French languages, both texts being equally authentic, in a single copy 8
which shall be deposited in the archives of the Government of the Kingdom 9
of the Netherlands, and of which a certified copy shall be sent, through 10
diplomatic channels, to each of the States Members of the Hague 11
Conference on Private International Law at the date of its Eighteenth 12
Session. 13
55
Child Protection (International Measures) Bill 2003
SCHEDULE 2 1
AMENDMENTS OF ACTS 2
section 39(1) 3
CHILD PROTECTION ACT 1999 4
1 After section 6-- 5
insert-- 6
`6A Provision about the Child Protection (International Measures) 7
Act 2003 8
`The Child Protection (International Measures) Act 2003 includes 9
provisions about the exercise of jurisdiction under this Act.'. 10
2 Section 186(2)(b), (c) and (d)-- 11
renumber as section 186(2)(c), (d) and (e). 12
3 Section 186(2)-- 13
insert-- 14
`(b) under the Child Protection (International Measures) Act 2003, 15
part 6;6 or'. 16
6 Child Protection (International Measures) Act 2003, part 6 (Co-operation and other
matters)
56
Child Protection (International Measures) Bill 2003
SCHEDULE 2 (continued)
CHILDRENS COURT ACT 1992 1
1 Section 6-- 2
insert-- 3
`(2) The Child Protection (International Measures) Act 2003 includes 4
provisions about the exercise of jurisdiction under this Act.'. 5
PUBLIC TRUSTEE ACT 1978 6
1 After section 4-- 7
insert-- 8
`5 Provision about the Child Protection (International Measures) 9
Act 2003 10
`The Child Protection (International Measures) Act 2003 includes 11
provisions about the exercise of jurisdiction under this Act.'. 12
SUPREME COURT ACT 1995 13
1 Part 1, after section 2-- 14
insert-- 15
`2A Provision about the Child Protection (International Measures) 16
Act 2003 17
`The Child Protection (International Measures) Act 2003 includes 18
provisions about the exercise of jurisdiction under this Act.'. 19
57
Child Protection (International Measures) Bill 2003
SCHEDULE 3 1
OTHER AMENDMENTS OF ACTS 2
section 39(1) and (2) 3
CHILD PROTECTION ACT 1999 4
1 Section 6(4), `authorised person'-- 5
omit, insert-- 6
`authorised officer'. 7
2 Section 23-- 8
omit, insert-- 9
`23 Meaning of "parent" in pt 2 10
`In this part-- 11
"parent", of a child, means each of the following persons-- 12
(a) the child's mother or father; 13
(b) a person in whose favour a residence order or contact order for 14
the child is in operation under the Family Law Act 1975 (Cwlth); 15
(c) a person, other than the chief executive, having custody or 16
guardianship of the child under a law of the State or another 17
State; 18
(d) if the child is in a person's custody or guardianship under this 19
Act-- 20
(i) the child's mother or father; and 21
(ii) anyone else who would be the child's parent under 22
paragraph (b) or (c) if the child were not in the person's 23
custody or guardianship under this Act.'. 24
58
Child Protection (International Measures) Bill 2003
SCHEDULE 3 (continued)
3 Section 37-- 1
omit, insert-- 2
`37 Meaning of "parent" in pt 3 3
`In this part-- 4
"parent", of a child, means each of the following persons-- 5
(a) the child's mother or father; 6
(b) a person in whose favour a residence order or contact order for 7
the child is in operation under the Family Law Act 1975 (Cwlth); 8
(c) a person, other than the chief executive, having custody or 9
guardianship of the child under a law of the State or another 10
State; 11
(d) if the child is in a person's custody or guardianship under this 12
Act-- 13
(i) the child's mother or father; and 14
(ii) anyone else who would be the child's parent under 15
paragraph (b) or (c) if the child were not in the person's 16
custody or guardianship under this Act.'. 17
4 Section 52-- 18
omit, insert-- 19
`52 Meaning of "parent" in pt 4 20
`In this part-- 21
"parent", of a child, means each of the following persons-- 22
(a) the child's mother or father; 23
(b) a person in whose favour a residence order or contact order for 24
the child is in operation under the Family Law Act 1975 (Cwlth); 25
(c) a person, other than the chief executive, having custody or 26
guardianship of the child under a law of the State or another 27
State; 28
(d) if the child is in a person's custody or guardianship under this 29
Act-- 30
59
Child Protection (International Measures) Bill 2003
SCHEDULE 3 (continued)
(i) the child's mother or father; and 1
(ii) anyone else who would be the child's parent under 2
paragraph (b) or (c) if the child were not in the person's 3
custody or guardianship under this Act.'. 4
5 Section 61, heading, `Provisions'-- 5
omit, insert-- 6
`Types'. 7
6 Section 65-- 8
omit, insert-- 9
`65 Variation and revocation of child protection orders 10
`(1) An authorised officer, a child's parent or the child may apply to the 11
Childrens Court for an order to-- 12
(a) vary or revoke a child protection order for the child; or 13
(b) revoke a child protection order for the child and make another 14
child protection order in its place. 15
`(2) However, a child's parent can not-- 16
(a) apply for an order to revoke a child protection order for the child 17
and make another child protection order in its place that grants 18
guardianship of the child; or 19
(b) without the leave of the court, apply for an order to vary or 20
revoke a child protection order for the child if another application 21
for an order by a parent of the child to vary or revoke the child 22
protection order has been decided by the court. 23
`(3) For subsection 2(b), the court may grant leave only if it is satisfied 24
the child's parent has new evidence to give to the court. 25
`(4) This part applies, with the changes prescribed in subsection (5) and 26
all other necessary changes, to the application as if it were an application 27
for a child protection order for the child. 28
`(5) If the application is made by the child or a parent of the child-- 29
60
Child Protection (International Measures) Bill 2003
SCHEDULE 3 (continued)
(a) other parents of the child and the chief executive become 1
respondents to the application; and 2
(b) immediately after the application is made, the registrar must give 3
written notice to the chief executive of the time and place for 4
hearing the application; and 5
(c) as soon as practicable after receiving the registrar's notice, the 6
chief executive must comply with section 567 except so far as it 7
relates to the applicant. 8
`(6) The court may, under subsection (1)(a), revoke a child protection 9
order for a child only if it is satisfied the order is no longer necessary to 10
protect the child. 11
`(7) Without limiting the things to which the court may have regard in 12
deciding the application, the court may have regard to a contravention of 13
the child protection order or this Act. 14
`(8) In this section-- 15
"child protection order" does not include an interim order under 16
section 67.8'. 17
7 Section 66(2), `weeks.'-- 18
omit, insert-- 19
`weeks.9'. 20
8 Section 67(1), from `an interim'-- 21
omit, insert-- 22
`all or any of the following orders-- 23
(a) an interim order granting temporary custody of the child-- 24
(i) for a court assessment order--to the chief executive; or 25
7 Section 56 (Notice of application)
8 Section 67 (Court's powers to make interim orders on adjournment)
9 Section 47 (Duration of court assessment orders) contains provisions about when a
court assessment order ends.
61
Child Protection (International Measures) Bill 2003
SCHEDULE 3 (continued)
(ii) for a child protection order--to the chief executive or a 1
suitable person who is a member of the child's family; 2
(b) an interim order directing a parent of the child not to have contact 3
(direct or indirect)-- 4
(i) with the child; or 5
(ii) with the child other than when a stated person or a person of 6
a stated category is present.'. 7
9 Section 67-- 8
insert-- 9
`(3) In this section-- 10
"parent", of a child, means each of the following persons-- 11
(a) the child's mother or father; 12
(b) a person in whose favour a residence order or contact order for 13
the child is in operation under the Family Law Act 1975 (Cwlth); 14
(c) a person, other than the chief executive, having custody or 15
guardianship of the child under a law of the State or another 16
State; 17
(d) if the child is in a person's custody or guardianship under this 18
Act-- 19
(i) the child's mother or father; and 20
(ii) anyone else who would be the child's parent under 21
paragraph (b) or (c) if the child were not in the person's 22
custody or guardianship under this Act.'. 23
10 Section 81, from `if'-- 24
omit, insert-- 25
`if the chief executive has custody or guardianship of a child under this 26
Act.'. 27
62
Child Protection (International Measures) Bill 2003
SCHEDULE 3 (continued)
11 Section 97, `doctor'-- 1
omit, insert-- 2
`health practitioner'. 3
12 Section 117-- 4
insert-- 5
`(3) In this section-- 6
"parent", of a child, means each of the following persons-- 7
(a) the child's mother or father; 8
(b) a person in whose favour a residence order or contact order for 9
the child is in operation under the Family Law Act 1975 (Cwlth); 10
(c) a person, other than the chief executive, having custody or 11
guardianship of the child under a law of the State or another 12
State; 13
(d) if the child is in a person's custody or guardianship under this 14
Act-- 15
(i) the child's mother or father; and 16
(ii) anyone else who would be the child's parent under 17
paragraph (b) or (c) if the child were not in the person's 18
custody or guardianship under this Act.'. 19
13 Section 121-- 20
insert-- 21
`(d) set aside the decision appealed against and remit the matter to the 22
magistrate or Childrens Court that made the decision.'. 23
14 Section 126(b)-- 24
omit, insert-- 25
`(b) the following persons are suitable persons-- 26
(i) the directors of the applicant; 27
63
Child Protection (International Measures) Bill 2003
SCHEDULE 3 (continued)
(ii) the nominee for the licence; 1
(iii) the persons who will be responsible for directly managing 2
the care service the subject of the application; 3
(iv) the persons who will be engaged in relation to the provision 4
of care services by the service; and'. 5
15 Section 130(1)(b), `the direct care of children for'-- 6
omit, insert-- 7
`relation to the provision of care services by'. 8
16 Chapter 4, part 2, division 4, heading, `and cancellation'-- 9
omit, insert-- 10
`, cancellation and surrender'. 11
17 Chapter 4, part 2, division 4, after section 141-- 12
insert-- 13
`141A Surrender of authorities 14
`(1) The holder of an authority may surrender the authority by written 15
notice given to the chief executive. 16
`(2) The surrender takes effect-- 17
(a) on the day that is 21 days after the notice is given to the chief 18
executive; or 19
(b) if a later day of effect is stated in the notice--on the later day. 20
`(3) The holder must return the authority to the chief executive within 21
7 days after the day the surrender takes effect.'. 22
18 Section 142(1)(a)(ii)-- 23
omit, insert-- 24
`(ii) to the directors of an applicant for a licence or a licensee; 25
and 26
64
Child Protection (International Measures) Bill 2003
SCHEDULE 3 (continued)
(iii) to the nominee for the licence; and 1
(iv) to the persons who will be, or are, engaged in relation to the 2
provision of care services by the service; or'. 3
19 Section 154(3), `authorised person's'-- 4
omit, insert-- 5
`authorised officer's'. 6
20 Section 162(2)-- 7
insert-- 8
`(c) if the child has been lawfully removed from the care of the 9
child's carer--keep the child beyond the period allowed for the 10
removal.'. 11
21 Section 163(1), from `if' to `another State'-- 12
omit, insert-- 13
`if an interstate officer for another State has responsibility for the 14
custody or guardianship of a child, however that responsibility is 15
described,'. 16
22 Section 163(2)-- 17
insert-- 18
`(c) if the child has been lawfully removed from the care of the 19
child's carer--keep the child beyond the period allowed for the 20
removal.'. 21
23 Section 164(2)-- 22
insert-- 23
`(c) if the child has been lawfully removed from the first person's 24
custody or guardianship--keep the child beyond the period 25
allowed for the removal.'. 26
65
Child Protection (International Measures) Bill 2003
SCHEDULE 3 (continued)
24 Section 165(1), from `if' to `under an'-- 1
omit, insert-- 2
`if a person (the "first person") has responsibility for the custody or 3
guardianship of a child, however that responsibility is described, under an'. 4
25 Section 165(2)-- 5
insert-- 6
`(c) if the child has been lawfully removed from the first person's 7
custody or guardianship--keep the child beyond the period 8
allowed for the removal.'. 9
26 Section 167, after `take'-- 10
insert-- 11
`or keep'. 12
27 Section 191(1), after `A person'-- 13
insert-- 14
`who is, or was,'. 15
28 Section 205-- 16
omit, insert-- 17
`205 Meaning of "parent" for ch 7 18
`In this chapter-- 19
"parent", of a child, means-- 20
(a) other than in part 7, each of the following persons-- 21
(i) the child's mother or father; 22
(ii) a person in whose favour a residence order or contact order 23
for the child is in operation under the Family Law Act 1975 24
(Cwlth); 25
66
Child Protection (International Measures) Bill 2003
SCHEDULE 3 (continued)
(iii) a person, other than the chief executive, having custody or 1
guardianship of the child under a law of the State or another 2
State; 3
(iv) if the child is in a person's custody or guardianship under 4
this Act-- 5
(A) the child's mother or father; and 6
(B) anyone else who would be the child's parent under 7
subparagraph (ii) or (iii) if the child were not in the 8
person's custody or guardianship under this Act; or 9
(b) in part 7, a parent as defined in section 242.10'. 10
29 Section 242, definition "parent"-- 11
omit, insert-- 12
` "parent", of a child, means each of the following persons-- 13
(a) the child's mother or father; 14
(b) if a child protection order or interstate order was not in force for 15
the child-- 16
(i) a person in whose favour a residence order or contact order 17
for the child would be in operation under the Family Law 18
Act 1975 (Cwlth); and 19
(ii) a person who would have custody or guardianship of the 20
child under a law of the State or another State.'. 21
30 Section 243(1)(a), `custody or guardianship of a child'-- 22
omit, insert-- 23
`responsibility for the custody or guardianship of a child, however that 24
responsibility is described,'. 25
10 Section 242 (Definitions for pt 7)
67
Child Protection (International Measures) Bill 2003
SCHEDULE 3 (continued)
31 Section 245(1), `the custody or guardianship'-- 1
omit, insert-- 2
`responsibility for the custody or guardianship, however that 3
responsibility is described,'. 4
32 Schedule 3, definition "guardian"-- 5
omit. 6
33 Schedule 3-- 7
insert-- 8
` "director", of an applicant for a licence or a licensee, means-- 9
(a) if the applicant or licensee is a company under the Corporations 10
Act--a person appointed as a director of the applicant or 11
licensee; or 12
(b) otherwise--a person who is, or is a member of, the executive or 13
management entity, by whatever name called, of the applicant or 14
licensee. 15
"health practitioner" means-- 16
(a) a nurse under the Nursing Act 1992; or 17
(b) a person registered under any of the following Acts-- 18
· Dental Practitioners Registration Act 2001 19
· Medical Practitioners Registration Act 2001 20
· Occupational Therapists Registration Act 2001 21
· Optometrists Registration Act 2001 22
· Physiotherapists Registration Act 2001 23
· Psychologists Registration Act 2001 24
· Speech Pathologists Registration Act 2001; or 25
(c) a person who is eligible for membership of the Australian 26
Association of Social Workers.'. 27
68
Child Protection (International Measures) Bill 2003
SCHEDULE 3 (continued)
34 Schedule 3, definition "interstate welfare authority", from `be 1
the'-- 2
omit, insert-- 3
`have responsibility for the custody or guardianship of a child, however 4
that responsibility is described.'. 5
35 Schedule 3, definition "medical examination", `carried out by a 6
nursing or other health professional'-- 7
omit, insert-- 8
`normally carried out by a health practitioner'. 9
36 Schedule 3, definition "suitable person"-- 10
insert-- 11
`(d) for a director of an applicant for a licence or a licensee--a person 12
who is a suitable person under a regulation; or 13
(e) for a nominee for a licence--a person who is a suitable person 14
under a regulation; or 15
(f) for a person who will be, or is, engaged in relation to the 16
provision of care services by a licensed care service--a person 17
who is a suitable person under a regulation.'. 18
CHILD PROTECTION AMENDMENT ACT 2000 19
1 Schedule, amendment 1-- 20
omit, insert-- 21
`1 Section 205-- 22
omit, insert-- 23
`205 Meaning of "parent" for ch 7 24
`In this chapter-- 25
69
Child Protection (International Measures) Bill 2003
SCHEDULE 3 (continued)
"parent", of a child, means each of the following persons-- 1
(a) the child's mother or father; 2
(b) a person in whose favour a residence order or contact order for 3
the child is in operation under the Family Law Act 1975 (Cwlth); 4
(c) a person, other than the chief executive, having custody or 5
guardianship of the child under a law of the State or another 6
State; 7
(d) if the child is in a person's custody or guardianship under this 8
Act-- 9
(i) the child's mother or father; and 10
(ii) anyone else who would be the child's parent under 11
paragraph (b) or (c) if the child were not in the person's 12
custody or guardianship under this Act.'.'. 13
JUVENILE JUSTICE ACT 1992 14
1 Section 79, `that--'-- 15
omit, insert-- 16
`that the child--'. 17
2 Section 79(a), `the child'-- 18
omit. 19
3 Section 145, heading, `Commission'-- 20
omit, insert-- 21
`Chief executive (corrective services)'. 22
70
Child Protection (International Measures) Bill 2003
SCHEDULE 3 (continued)
4 Section 150(5), definition "community justice group", 1
paragraph (a), `part 3A'-- 2
omit, insert-- 3
`part 5'. 4
5 Section 200(3), `must not be not less'-- 5
omit, insert-- 6
`must not be less'. 7
6 Section 235(3), `made under subsection (1)'-- 8
omit, insert-- 9
`under this section'. 10
7 Section 254(4), `mentioned in paragraph (a) or (b) of the 11
section'-- 12
omit, insert-- 13
`under section 79 of that Act'. 14
8 Section 278, penalty, `imprisonment for 1 year'-- 15
omit, insert-- 16
`1 year's imprisonment'. 17
9 Section 279(1), penalty, `imprisonment for 1 year'-- 18
omit, insert-- 19
`1 year's imprisonment'. 20
71
Child Protection (International Measures) Bill 2003
SCHEDULE 4 1
DICTIONARY 2
section 6(1) 3
"another country" means a Convention country or a non-Convention 4
country. 5
"Australia" includes the external Territories. 6
"central authority" of a Convention country means-- 7
(a) if there is one central authority of the Convention country under 8
Article 29 of the Child Protection Convention--the Convention 9
country's central authority; or 10
(b) otherwise--the central authority designated, under Article 29 of 11
the Child Protection Convention, as the Convention country's 12
central authority to which any communication may be addressed 13
for transmission to the appropriate central authority of the 14
Convention country. 15
"child" means an individual who is under 18 years. 16
"Child Protection Convention" means the Convention on Jurisdiction, 17
Applicable Law, Recognition, Enforcement and Co-operation in 18
respect of Parental Responsibility and Measures for the Protection of 19
Children signed at The Hague on 19 October 1996, a copy of the 20
English text of which is set out in schedule 1. 21
"Childrens Court" means the Childrens Court established under the 22
Childrens Court Act 1992. 23
"Commonwealth central authority" has the meaning given by the 24
Family Law Act 1975 (Cwlth), section 111CA(1).11 25
11 Family Law Act 1975 (Cwlth), section 111CA(1)--
Commonwealth central authority means the Secretary of the Attorney-General's
Department.
72
Child Protection (International Measures) Bill 2003
SCHEDULE 4 (continued)
"competent authority"-- 1
(a) in relation to Australia means an entity that has responsibility or 2
authority under the law in force in Australia, or part of Australia, 3
to take measures or make decisions about-- 4
(i) protecting the person of a child; or 5
(ii) appointing or deciding the powers of a guardian of a child's 6
property; and 7
(b) in relation to a Convention country means an entity that has 8
responsibility or authority under the law in force in the 9
Convention country to take, or make decisions about, a foreign 10
measure relating to a child; and 11
(c) in relation to a non-Convention country means an entity that has 12
responsibility or authority under the law in force in the country to 13
take measures or make decisions about-- 14
(i) protecting the person of a child; or 15
(ii) appointing or deciding the powers of a guardian of a child's 16
property. 17
"Convention country" means a country, other than Australia, for which 18
the Child Protection Convention has entered into force. 19
"country of refuge" of a child means a country in which the child is 20
present as a refugee child. 21
"entity" includes the following-- 22
(a) an individual; 23
(b) a corporation; 24
(c) an unincorporated body; 25
(d) a government authority or body; 26
(e) a court or tribunal. 27
73
Child Protection (International Measures) Bill 2003
SCHEDULE 4 (continued)
"external Territory" has the meaning given by the Acts Interpretation 1
Act 1901 (Cwlth), section 17.12 2
"foreign measure" means-- 3
(a) a foreign personal protection measure; or 4
(b) a foreign property protection measure. 5
"foreign personal protection measure" relating to a child means a 6
measure (within the meaning of the Child Protection Convention) 7
taken by a competent authority of a Convention country for protecting 8
the person of the child. 9
"foreign property protection measure" relating to a child means a 10
measure (within the meaning of the Child Protection Convention) 11
taken by a competent authority of a Convention country for 12
appointing, or deciding the powers of, a guardian of the child's 13
property. 14
"non-Convention country" means a country for which the Child 15
Protection Convention has not entered into force. 16
"parental responsibility" has the same meaning as in the Child Protection 17
Convention. 18
"public trustee" means the public trustee under the Public Trustee 19
Act 1978. 20
"Queensland authority" means-- 21
(a) for a Queensland personal protection measure relating to a 22
child--a Queensland court or the department; or 23
(b) for a Queensland property protection measure--a Queensland 24
court or the public trustee. 25
"Queensland court" means-- 26
(a) the Supreme Court; or 27
(b) the District Court; or 28
(c) the Childrens Court; or 29
12 Acts Interpretation Act 1901 (Cwlth), section 17--
External Territory means a Territory, not being an internal Territory, for the
government of which as a Territory provision is made by any Act.
74
Child Protection (International Measures) Bill 2003
SCHEDULE 4 (continued)
(d) a Magistrates Court; or 1
(e) the Children Services Tribunal established under the Children 2
Services Tribunal Act 2000, section 9. 3
"Queensland law" means the law in force in Queensland. 4
"Queensland measure" means-- 5
(a) a Queensland personal protection measure relating to a child; or 6
(b) a Queensland property protection measure relating to a child. 7
"Queensland personal protection measure" relating to a child means a 8
measure (within the meaning of the Child Protection Convention) 9
under Queensland law that is directed to the protection of the person 10
of the child. 11
12
Examples of Queensland personal protection measures--
13
1. An assessment order or child protection order, within the meaning of the
14
Child Protection Act 1999.
15
2. Taking of a child into the chief executive's custody under the
16
Child Protection Act 1999, section 18.
17
3. A declaration assuming custody or guardianship of a child under the Child
18
Protection Act 1999, section 243.
19
4. An order protecting the person of a child made by the Supreme Court
20
exercising its inherent jurisdiction for children, including authorising the
21
performance of a medical procedure on, or treatment of, a child for which a
22
parent does not have authority, under Queensland law, to consent.
"Queensland property protection measure" relating to a child means a 23
measure (within the meaning of the Child Protection Convention) 24
under Queensland law for appointing, or deciding the powers of, a 25
guardian of the child's property. 26
"refugee child" means a child-- 27
(a) who is a refugee; or 28
(b) who is internationally displaced due to disturbances occurring in 29
his or her country of habitual residence; or 30
(c) whose country of habitual residence cannot be determined. 31
"registrar", in relation to a court, means-- 32
(a) if the court is the Supreme Court--a registrar of the Supreme 33
Court; or 34
75
Child Protection (International Measures) Bill 2003
SCHEDULE 4 (continued)
(b) if the court is the District Court--a registrar, within the meaning 1
of the District Court of Queensland Act 1967, of the court; or 2
(c) if the court is the Childrens Court--the person who, under the 3
Childrens Court Act 1992, section 25, holds the same office for 4
the Childrens Court as a registrar of the District Court or the 5
clerk of a Magistrates Court; or 6
(d) if the court is a Magistrates Court--the clerk of the court. 7
© State of Queensland 2003
AMENDMENTS TO BILL
1
Child Protection (International Measures) Bill 2003
CHILD PROTECTION (INTERNATIONAL
MEASURES) BILL 2003
AMENDMENTS AGREED TO IN COMMITTEE
1 Schedule 3, amendment of Child Protection Act 1999, after
amendment 14--
At page 63, after line 5--
insert--
`14A Section 127(2) and (3)--
omit, insert--
`(2) The licence may be issued subject to the reasonable conditions the
chief executive considers appropriate.
`(3) The licence must be in the approved form.
`(4) The approved form must provide for the inclusion of the
following--
(a) the licensee's name;
(b) the name of the nominee for the licence;
(c) the address of the licensed premises;
(d) any conditions of the licence.'.'.
2 Schedule 3, amendment of Child Protection Act 1999, after
amendment 15--
At page 63, after line 8--
insert--
`15A Section 134(2) and (3)--
omit, insert--
`(2) The certificate may be issued subject to the reasonable conditions
the chief executive considers appropriate.
2
Child Protection (International Measures) Bill 2003
`(3) The certificate must be in the approved form.
`(4) The approved form must provide for the inclusion of the
following--
(a) the approved foster carer's name;
(b) the type of care approved to be provided;
(c) any conditions of the certificate.'.'.
3 Schedule 3, amendment of Child Protection Act 1999, after
amendment 16--
At page 63, after line 11--
insert--
`16A Section 137--
insert--
`(3A) If the amendment is about changing the nominee for a licence, in
deciding whether the amendment is necessary or desirable, the chief
executive must consider whether the proposed nominee is a suitable
person.'.
`16B Section 139(a) to (d)--
renumber as section 139(c) to (f).
`16C Section 139--
insert--
`(a) if the authority is a licence--a relevant person, for the licence, is
not a suitable person;
(b) if the authority is a certificate of approval--
(i) the holder of the certificate is not a suitable person to be an
approved foster carer; or
(ii) a member of the holder's household is not a suitable person
to associate on a daily basis with children;'.
3
Child Protection (International Measures) Bill 2003
`16D Section 139--
insert--
`(2) In this section--
"relevant person", for a licence, means--
(a) a director of the licensee; or
(b) the nominee for the licence; or
(c) a person responsible for directly managing the care service the
subject of the licence; or
(d) a person who is engaged in relation to the provision of care
services by the service.'.'.
4 Schedule 3, amendment of Child Protection Act 1999,
amendment 18--
At page 63, line 25, `a licence or a licensee'--
omit, insert--
`the licence or the licensee'.
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