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Family Law Amendment (Child Protection Convention) Bill 2002

 

 

 

 

 

Family Law Amendment (Child Protection Convention) Act 2002

 

No. 69, 2002

 

 

 

 

 

An Act to implement the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, and for related purposes

   

   



Contents

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 2

3............ Schedule(s).......................................................................................... 2

Schedule 1—Amendment of the Family Law Act 1975                                       3

 



 

Family Law Amendment (Child Protection Convention) Act 2002

No. 69, 2002

 

 

 

An Act to implement the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, and for related purposes

[ Assented to 3 September 2002 ]

The Parliament of Australia enacts:

1   Short title

                   This Act may be cited as the Family Law Amendment (Child Protection Convention) Act 2002.

2   Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent

3 September 2002

2.  Schedule 1

The day on which the Child Protection Convention enters into force in Australia

 

Note:          This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.

             (3)  In this section:

Child Protection Convention means the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996.

3   Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.



 

Schedule 1 Amendment of the Family Law Act 1975

   

1  At the end of subsection 31(2)

Add:

Note:          Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of the Court.

2  At the end of paragraph 39(5)(a)

Add “or”.

3  At the end of paragraph 39(5)(b)

Add “or”.

4  After paragraph 39(5)(d)

Insert:

                    (da)  proceedings are instituted under Division 4 of Part XIIIAA or under regulations made for the purposes of section 111CZ; or

5  At the end of subsection 39(5A)

Add:

               ; or (d)  proceedings are instituted under Division 4 of Part XIIIAA or under regulations made for the purposes of section 111CZ.

6  At the end of paragraph 39(6)(a)

Add “or”.

7  At the end of paragraph 39(6)(b)

Add “or”.

8  After paragraph 39(6)(d)

Insert:

                    (da)  proceedings are instituted under Division 4 of Part XIIIAA or under regulations made for the purposes of section 111CZ; or

9  At the end of subsection 42(2)

Add:

Note:          Subdivision D of Division 4 of Part XIIIAA (Applicable law) may affect the law to be applied by a court.

10  At the end of section 61C

Add:

Note:          Section 111CS may affect the attribution of parental responsibility for a child.

11  At the end of section 63E

Add:

Note:          Division 4 of Part XIIIAA (International protection of children) may affect the court’s power to register a parenting plan.

12  At the end of subsection 63F(1)

Add:

Note:          Section 111CT may affect the operation of the child welfare provisions of a registered parenting plan.

13  At the end of subsection 65D(1)

Add:

Note:          Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make a parenting order.

14  At the end of section 67K

Add:

             (2)  For the purposes of the Child Protection Convention, a person (including the Commonwealth central authority) may apply to a court for a location order.

             (3)  In subsection (2):

Child Protection Convention has the same meaning as in section 111CA.

Commonwealth central authority has the same meaning as in section 111CA.

15  Subsection 67M(2)

After “this Part”, insert “or section 111CX”.

16  Subsection 67N(2)

After “this Part”, insert “or section 111CX”.

17  At the end of subsection 67P(1)

Add:

                ; or (f)  with the leave of the court that made the location order:

                              (i)  the Commonwealth central authority; or

                             (ii)  a central authority or a competent authority of a Convention country.

18  At the end of section 67P

Add:

             (3)  In paragraph (1)(f):

central authority has the same meaning as in section 111CA.

Commonwealth central authority has the same meaning as in section 111CA.

competent authority has the same meaning as in section 111CA.

Convention country has the same meaning as in section 111CA.

19  At the end of subsection 67ZC(1)

Add:

Note:          Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make an order relating to the welfare of a child.

20  At the end of section 69E

Add:

Note:          Division 4 of Part XIIIAA (International protection of children) has effect despite this section.

21  At the end of section 70H

Add:

Note:          Division 4 of Part XIIIAA (International protection of children) may affect the operation of a registered overseas child order.

22  Before section 110

Insert:

Division 1 International maintenance orders and agreements etc.

23  After section 111A

Insert:

Division 2 International child abduction

24  After section 111B

Insert:

Division 3 International agreements about adoption etc.

25  After section 111C

Insert:

Division 4 International protection of children

Subdivision A Preliminary

111CA   Definitions

             (1)  In this Division:

another country means a Convention country or a non-Convention country.

Australia includes the external Territories.

central authority of a Convention country means:

                     (a)  if there is one central authority of the Convention country under Article 29 of the Child Protection Convention—the Convention country’s central authority; or

                     (b)  otherwise—the central authority designated, under Article 29 of the Child Protection Convention, as the Convention country’s central authority to which any communication may be addressed for transmission to the appropriate central authority of the Convention country.

Child Protection Convention means the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children signed at The Hague on 19 October 1996, a copy of the English text of which is set out in Schedule 1.

Commonwealth central authority means the Secretary of the Attorney-General’s Department.

Commonwealth personal protection measure relating to a child means a measure (within the meaning of the Child Protection Convention) under this Act that is directed to the protection of the person of the child.

Commonwealth property protection measure relating to a child means a measure (within the meaning of the Child Protection Convention) under this Act for appointing, or deciding the powers of, a guardian of the child’s property.

competent authority :

                     (a)  competent authority of Australia means an entity that has responsibility or authority under the law in force in Australia, or part of Australia, to take measures or make decisions about:

                              (i)  protecting the person of a child; or

                             (ii)  appointing or deciding the powers of a guardian of a child’s property; and

                     (b)  competent authority of a Convention country means an entity that has responsibility or authority under the law in force in the Convention country to take, or make decisions about, a foreign measure relating to a child; and

                     (c)  competent authority of a non-Convention country means an entity that has responsibility or authority under the law in force in the country to take measures or make decisions about:

                              (i)  protecting the person of a child; or

                             (ii)  appointing or deciding the powers of a guardian of a child’s property.

Convention country means a country, other than Australia, for which the Child Protection Convention has entered into force.

country of refuge of a child means a country in which the child is present as a refugee child.

entity includes the following:

                     (a)  an individual;

                     (b)  a corporation;

                     (c)  an unincorporated body;

                     (d)  a government authority or body;

                     (e)  a court or tribunal.

foreign measure means:

                     (a)  a foreign personal protection measure; or

                     (b)  a foreign property protection measure.

foreign personal protection measure relating to a child means a measure (within the meaning of the Child Protection Convention) taken by a competent authority of a Convention country for protecting the person of the child.

foreign property protection measure relating to a child means a measure (within the meaning of the Child Protection Convention) taken by a competent authority of a Convention country for appointing, or deciding the powers of, a guardian of the child’s property.

non-Convention country means a country for which the Child Protection Convention has not entered into force.

parental responsibility has the same meaning as in the Child Protection Convention.

refugee child means a child:

                     (a)  who is a refugee; or

                     (b)  who is internationally displaced due to disturbances occurring in his or her country of habitual residence; or

                     (c)  whose country of habitual residence cannot be determined.

Territory includes each external Territory.

             (2)  Unless the contrary intention appears, expressions used:

                     (a)  in this Division; or

                     (b)  in regulations made for the purposes of this Division;

have the same meaning as they have in the Child Protection Convention.

111CB   Relationship between this Division and other provisions

             (1)  This Division has effect despite the rest of this Act, except sections 69ZK and 111B and the regulations made for the purposes of section 111B.

             (2)  This Division, except section 111CZ, has effect subject to sections 69ZK and 111B and the regulations made for the purposes of section 111B.

             (3)  Section 111CZ, and regulations made for the purposes of that section, have effect despite section 69ZK.

Subdivision B Jurisdiction for the person of a child

111CC   Application of this Subdivision

                   This Subdivision applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to take measures directed to the protection of the person of a child:

                     (a)  a central authority or competent authority of a Convention country;

                     (b)  a competent authority of a non-Convention country.

111CD   Jurisdiction relating to the person of a child

             (1)  A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:

                     (a)  a child who is present and habitually resident in Australia; or

                     (b)  a child who is present in Australia and habitually resident in a Convention country, if:

                              (i)  the child’s protection requires taking the measure as a matter of urgency; or

                             (ii)  the measure is provisional and limited in its territorial effect to Australia; or

                            (iii)  the child is a refugee child; or

                            (iv)  a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child’s habitual residence; or

                             (v)  a competent authority of the country of the child’s habitual residence agrees to the court assuming jurisdiction; or

                            (vi)  the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or

                     (c)  a child who is present in a Convention country, if:

                              (i)  the child is habitually resident in Australia; or

                             (ii)  the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or

                            (iii)  a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child’s habitual residence or country of refuge; or

                            (iv)  a competent authority of the country of the child’s habitual residence or country of refuge agrees to the court assuming jurisdiction; or

                             (v)  the child is habitually resident in a Convention country and the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or

                     (d)  a child who is present in Australia and is a refugee child; or

                     (e)  a child who is present in a non-Convention country, if:

                              (i)  the child is habitually resident in Australia; and

                             (ii)  any of paragraphs 69E(1)(b) to (e) applies to the child; or

                      (f)  a child who is present in Australia, if:

                              (i)  the child is habitually resident in a non-Convention country; and

                             (ii)  any of paragraphs 69E(1)(b) to (e) applies to the child.

             (2)  A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(ii) if the measure is not incompatible with a foreign measure already taken by a competent authority of a Convention country under Articles 5 to 10 of the Child Protection Convention.

             (3)  A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(vi) or (c)(v) for a Commonwealth personal protection measure relating to a child if:

                     (a)  one or both of the child’s parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and

                     (b)  one or both of the parents have parental responsibility for the child; and

                     (c)  the jurisdiction of the court to take the measure is accepted by the parents and each other person with parental responsibility for the child; and

                     (d)  the exercise of jurisdiction to take the measure is in the best interests of the child; and

                     (e)  the proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised.

             (4)  Paragraphs 111CD(1)(a) to (d) are subject to the limitations in sections 111CE, 111CF and 111CH.

111CE   Limitation when a child is wrongfully removed from or retained outside a Convention country

                   A court must not, other than in a case of urgency, exercise jurisdiction in accordance with paragraph 111CD(1)(a), (b), (c) or (d) to take a Commonwealth personal protection measure relating to a child if:

                     (a)  the child has been wrongfully removed from or retained outside a Convention country; and

                     (b)  an authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention.

111CF   Limitations when prior proceedings pending in a Convention country

             (1)  This section applies to the exercise of jurisdiction by a court in accordance with paragraph 111CD(1)(a), subparagraph 111CD(1)(b)(iii), (iv), (v) or (vi) or paragraph 111CD(1)(c) or (d).

             (2)  The court must not exercise that jurisdiction to take a Commonwealth personal protection measure relating to a child if:

                     (a)  a corresponding measure has been sought from a competent authority of a Convention country at the time of commencement of the proceedings before the court; and

                     (b)  any of the following applies:

                              (i)  the child is habitually resident in the Convention country;

                             (ii)  the child is present in the Convention country and is a refugee child;

                            (iii)  a request to assume jurisdiction is made to the competent authority of the Convention country by, or at the invitation of, a competent authority of the country of the child’s habitual residence or country of refuge;

                            (iv)  a competent authority of the country of the child’s habitual residence or country of refuge agrees to the competent authority of the Convention country assuming jurisdiction;

                             (v)  the competent authority of the Convention country is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3));

                            (vi)  the child has been wrongfully removed from or retained outside the Convention country and a competent authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention.

             (3)  Subparagraph (2)(b)(v) only applies (subject to subsection (4)) if:

                     (a)  one or both of the child’s parents are habitually resident in the Convention country when the proceedings referred to in that subparagraph commence; and

                     (b)  one or both of the parents has parental responsibility for the child; and

                     (c)  the jurisdiction of the competent authority of the Convention country to take the measure is accepted by the parents and each other person with parental responsibility for the child; and

                     (d)  the exercise of jurisdiction to take the measure is in the best interests of the child; and

                     (e)  the proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised.

             (4)  Subsection (2) does not apply if the competent authority of the Convention country has declined jurisdiction or is no longer considering taking the measure sought.

111CG   If a court is asked to assume jurisdiction

             (1)  A court may, if it considers that it is in the child’s best interests, accept or reject a request made under Article 8 of the Child Protection Convention by, or at the invitation of, a competent authority of a Convention country for the court to assume jurisdiction to take a Commonwealth personal protection measure relating to the child.

             (2)  A court may order, or invite the parties to proceedings before the court to ask, the Commonwealth central authority to do both of the following in a way that the Commonwealth central authority considers appropriate:

                     (a)  to request, under Article 9 of the Child Protection Convention, that a competent authority of a Convention country agree to the court assuming jurisdiction to take a Commonwealth personal protection measure relating to the child;

                     (b)  to report to the court about the outcome of the request.

             (3)  The court may only make the order or issue the invitation under subsection (2) if it considers that it is better placed than the competent authority to assess the child’s best interests.

111CH   Limitation if a competent authority of a Convention country is asked to assume jurisdiction

             (1)  The court may order, or invite the parties to proceedings before the court to ask the Commonwealth central authority, in a way the Commonwealth central authority considers appropriate, to request a competent authority described in Article 8, paragraph 2, of the Child Protection Convention:

                     (a)  to assume jurisdiction under Article 8 of the Convention for protecting the person of the child; and

                     (b)  as the competent authority considers necessary, to take measures to protect the person of the child; and

                     (c)  to report to the court about the outcome of the request.

             (2)  In addition, the court may make any other order it considers necessary for an order under subsection (1).

             (3)  The court may only make the order or issue the invitation under subsection (1) if the court considers that the competent authority is better placed to assess the child’s best interests.

             (4)  The court may accept or reject a request under Article 9 of the Child Protection Convention made by, or at the invitation of, a competent authority of a Convention country described in Article 8, paragraph 2 of the Convention, for the competent authority to assume jurisdiction to take a measure for protecting the person of the child.

             (5)  If the competent authority assumes jurisdiction under the request, a court must not exercise jurisdiction in accordance with paragraph 111CD(1)(a), subparagraphs 111CD(1)(b)(iii) to (vi), or paragraph 111CD(1)(c) or (d), while the competent authority continues to exercise its jurisdiction.

111CI   When a certain Commonwealth personal protection measure lapses

             (1)  A Commonwealth personal protection measure relating to a child that is taken by a court exercising jurisdiction in accordance with subparagraph 111CD(1)(b)(i) or (ii) lapses if:

                     (a)  a foreign personal protection measure relating to the child is taken by a competent authority of a Convention country; and

                     (b)  any of the following applies:

                              (i)  the child is habitually resident in the Convention country;

                             (ii)  the child is present in the Convention country and is a refugee child;

                            (iii)  a request to assume jurisdiction is made to the competent authority of the Convention country by, or at the invitation of, a competent authority of the country of the child’s habitual residence;

                            (iv)  a competent authority of the country of the child’s habitual residence agrees to the competent authority of the Convention country assuming jurisdiction;

                             (v)  a competent authority of the Convention country is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (2));

                            (vi)  the child has been wrongfully removed from or retained outside the Convention country and a competent authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention.

             (2)  Subparagraph (1)(b)(v) only applies if:

                     (a)  one or both of the child’s parents are habitually resident in the Convention country when the proceedings referred to in that subparagraph are started; and

                     (b)  one or both of the parents has parental responsibility for the child; and

                     (c)  the jurisdiction of the competent authority of the Convention country to take the measure is accepted by the parents and each other person with parental responsibility for the child; and

                     (d)  the exercise of jurisdiction to take the measure is in the best interests of the child; and

                     (e)  the proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised.

             (3)  A Commonwealth personal protection measure relating to a child that is taken by a court exercising jurisdiction in a case of urgency, or in the taking of a measure of a provisional character, lapses if:

                     (a)  a measure required by the situation for protecting the person of the child is taken by a competent authority of a non-Convention country; and

                     (b)  the measure is registered:

                              (i)  in accordance with regulations made for the purposes of section 70G; or

                             (ii)  under a law of a State or Territory.

Subdivision C Jurisdiction for decisions about a guardian of a child’s property

111CJ   Application of this Subdivision

                   This Subdivision applies only if an issue under this Act is whether a court, as opposed to any of the following authorities, has jurisdiction to appoint, or determine the powers of, a guardian of a child’s property:

                     (a)  a central authority or competent authority of a Convention country;

                     (b)  a competent authority of a non-Convention country.

111CK   Jurisdiction to appoint, or determine the powers of, a guardian for a child’s property

             (1)  A court may exercise jurisdiction for a Commonwealth property protection measure only in relation to:

                     (a)  a child who is habitually resident in Australia; or

                     (b)  a child who is habitually resident in a Convention country, if:

                              (i)  the protection of the child’s property in Australia requires taking the measure as a matter of urgency; or

                             (ii)  the measure is provisional and limited in its territorial effect to property in Australia; or

                            (iii)  a request to assume jurisdiction is made to the court by, or at the invitation of, a competent authority of the country of the child’s habitual residence or country of refuge; or

                            (iv)  a competent authority of the country of the child’s habitual residence or country of refuge agrees to the court assuming jurisdiction; or

                             (v)  the child has been wrongfully removed from or retained outside Australia and the court keeps jurisdiction under Article 7 of the Child Protection Convention; or

                            (vi)  the court is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3)); or

                     (c)  a child who is present in Australia and is a refugee child; or

                     (d)  a child who is present in a non-Convention country, if:

                              (i)  the child is habitually resident in Australia; and

                             (ii)  any of paragraphs 69E(1)(b) to (e) applies to the child; or

                     (e)  a child who is present in Australia, if:

                              (i)  the child is habitually resident in a non-Convention country; and

                             (ii)  any of paragraphs 69E(1)(b) to (e) applies to the child.

             (2)  A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(ii) if the measure is not incompatible with a foreign measure already taken by a competent authority of a Convention country under Articles 5 to 10 of the Child Protection Convention.

             (3)  A court may only exercise jurisdiction in accordance with subparagraph (1)(b)(vi) for a Commonwealth property protection measure relating to a child if:

                     (a)  one or both of the child’s parents are habitually resident in Australia when the proceedings referred to in that subparagraph begin; and

                     (b)  one or both of the parents have parental responsibility for the child; and

                     (c)  the jurisdiction of the court to take the measure is accepted by the parents and each other person with parental responsibility for the child; and

                     (d)  the exercise of jurisdiction to take the measure is in the best interests of the child; and

                     (e)  the proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised.

             (4)  Paragraphs (1)(a) to (c) are subject to the limitations in sections 111CL, 111CM and 111CO.

111CL   Limitation when a child is wrongfully removed from or retained outside a Convention country

                   A court must not, other than in a case of urgency, exercise jurisdiction in accordance with paragraph 111CK(1)(a), (b) or (c) to take a Commonwealth property protection measure relating to a child if:

                     (a)  the child has been wrongfully removed from or retained outside a Convention country; and

                     (b)  an authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention.

111CM   Limitations when prior proceedings pending in a Convention country

             (1)  This section applies to the exercise of jurisdiction by a court in accordance with paragraph 111CK(1)(a), subparagraph 111CK(1)(b)(iii), (iv), (v) or (vi) or paragraph 111CK(1)(c).

             (2)  The court must not exercise that jurisdiction to take a Commonwealth property protection measure relating to a child if:

                     (a)  a corresponding measure has been sought from a competent authority of a Convention country at the time of commencement of proceedings before the court; and

                     (b)  any of the following applies:

                              (i)  the child is habitually resident in the Convention country;

                             (ii)  the child is present in the Convention country and is a refugee child;

                            (iii)  a request to assume jurisdiction is made to a competent authority of the country of the child’s habitual residence or country of refuge;

                            (iv)  a competent authority of the country of the child’s habitual residence or country of refuge agrees to the competent authority assuming jurisdiction;

                             (v)  the competent authority of the Convention country is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (3));

                            (vi)  the child has been wrongfully removed from or retained outside the Convention country and a competent authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention.

             (3)  Subparagraph (2)(b)(v) only applies (subject to subsection (4)) if:

                     (a)  one or both of the child’s parents are habitually resident in the Convention country when the proceedings referred to in that subparagraph are commenced; and

                     (b)  one or both of the parents have parental responsibility for the child; and

                     (c)  the jurisdiction of the competent authority of the Convention country to take the measure is accepted by the parents and each other person with parental responsibility for the child; and

                     (d)  the exercise of jurisdiction to take the measure is in the best interests of the child; and

                     (e)  the proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised.

             (4)  Subsection (2) does not apply if the competent authority of the Convention country has declined jurisdiction or is no longer considering taking the measure sought.

111CN   If a court is asked to assume jurisdiction

             (1)  A court may, if it considers that it is in the child’s best interests, accept or reject a request made under Article 8 of the Child Protection Convention by, or at the invitation of, a competent authority of a Convention country for the court to assume jurisdiction to take a Commonwealth property protection measure relating to the child.

             (2)  A court may order, or invite the parties to proceedings before the court to ask, the Commonwealth central authority to do both of the following in a way that the Commonwealth central authority considers appropriate:

                     (a)  to request, under Article 9 of the Child Protection Convention, that a competent authority of a Convention country agree to the court assuming jurisdiction to take a Commonwealth property protection measure relating to the child;

                     (b)  to report to the court about the outcome of the request.

             (3)  The court may only make the order or issue the invitation under subsection (2) if it considers that it is better placed than the competent authority to assess the child’s best interests.

111CO   Limitation if a competent authority of a Convention country is asked to assume jurisdiction

             (1)  The court may order, or invite the parties to proceedings before the court to ask the Commonwealth central authority, in a way the Commonwealth central authority considers appropriate, to request a competent authority described in Article 8, paragraph 2, of the Child Protection Convention:

                     (a)  to assume jurisdiction under Article 8 of the Convention for appointing, or deciding the powers of, a guardian of the child’s property; and

                     (b)  as the competent authority considers necessary, to take a measure appointing, or deciding the powers of, a guardian of the child’s property; and

                     (c)  to report to the court about the outcome of the request.

             (2)  In addition, the court may make any other order it considers necessary for an order under subsection (1).

             (3)  The court may only make the order or issue the invitation under subsection (1) if the court considers that the competent authority is better placed to assess the child’s best interests.

             (4)  The court may accept or reject a request under Article 9 of the Child Protection Convention made by, or at the invitation of, a competent authority of a Convention country described in Article 8, paragraph 2 of the Convention, for the competent authority to assume jurisdiction to take a measure for the protection of the child’s property.

             (5)  If the competent authority assumes jurisdiction under the request, a court must not exercise jurisdiction in accordance with paragraph 111CK(a) or subparagraphs 111CK(1)(b)(iii) to (vi) or paragraph 111CK(1)(c), while the competent authority continues to exercise its jurisdiction.

111CP   When a certain Commonwealth property protection measure lapses

             (1)  A Commonwealth property protection measure relating to a child that is taken by a court exercising jurisdiction in accordance with subparagraph 111CK(1)(b)(i) or (ii) lapses if:

                     (a)  a foreign property protection measure relating to the child is taken by a competent authority of a Convention country; and

                     (b)  any of the following applies:

                              (i)  the child is habitually resident in the Convention country;

                             (ii)  the child is present in the Convention country and is a refugee child;

                            (iii)  a request to assume jurisdiction is made to the competent authority of the Convention country by, or at the invitation of, a competent authority of the country of the child’s habitual residence;

                            (iv)  a competent authority of the country of the child’s habitual residence agrees to the competent authority of the Convention country assuming jurisdiction;

                             (v)  a competent authority of the Convention country is exercising jurisdiction in proceedings concerning the divorce or separation of the child’s parents or the annulment of their marriage (but see subsection (2));

                            (vi)   the child has been wrongfully removed from or retained outside the Convention country and a competent authority of the Convention country keeps jurisdiction under Article 7 of the Child Protection Convention.

             (2)  Subparagraph (1)(b)(v) only applies if:

                     (a)  one or both of the child’s parents are habitually resident in the Convention country when the proceedings referred to in that subparagraph are started; and

                     (b)  one or both of the parents have parental responsibility for the child; and

                     (c)  the jurisdiction of the competent authority of the Convention country to take the measure is accepted by the parents and each other person with parental responsibility for the child; and

                     (d)  the exercise of jurisdiction to take the measure is in the best interests of the child; and

                     (e)  the proceedings on the application for divorce or separation of the child’s parents or the annulment of their marriage have not been finalised.

             (3)  A Commonwealth property protection measure relating to a child that is taken by a court exercising jurisdiction in a case of urgency, or in the taking of a measure of a provisional character, lapses if:

                     (a)  a measure required by the situation for the appointment, or the determination of the powers, of a guardian for a child’s property is taken by a competent authority of a non-Convention country; and

                     (b)  the measure is registered:

                              (i)  in accordance with regulations made for the purposes of section 70G; or

                             (ii)  under a law of a State or Territory.

Subdivision D Applicable law

111CQ   Meaning of law

                   In this Subdivision:

law does not include choice of law rules.

111CR   Applicable law generally

             (1)  This section applies to a court exercising jurisdiction in accordance with Subdivision B or C.

             (2)  The court must apply the law of Australia in exercising that jurisdiction.

             (3)  However, the court may in exceptional circumstances apply or take into account the law of another country with which:

                     (a)  a child has a substantial connection; or

                     (b)  a child’s property is substantially connected;

if the court considers the protection of the person of the child, or the child’s property, requires the court to do so.

             (4)  In subsection (2):

law of Australia means:

                     (a)  law in force throughout Australia; or

                     (b)  law in force in a part of Australia;

and includes the principles and rules of the common law and of equity as so in force.

111CS   Applicable law concerning parental responsibility

             (1)  The principles set out in this section apply despite anything in this Act.

             (2)  The circumstances in which parental responsibility for a child is attributed to a person, or extinguished, by operation of law (without the intervention of a court or appropriate authority) are governed by the law that applies in the country of the child’s habitual residence.

             (3)  The circumstances in which parental responsibility for a child is attributed to a person, or extinguished, by an agreement or a unilateral act (without the intervention of a court or appropriate authority) are governed by the law that applies in the country of the child’s habitual residence when the agreement or act takes effect.

             (4)  The exercise of parental responsibility for a child is governed by the law applying in the country of the child’s habitual residence.

             (5)  If a child’s country of habitual residence changes to another country:

                     (a)  parental responsibility for the child that exists under the law applying in the country in which the child was habitually resident continues to exist; and

                     (b)  the circumstances in which parental responsibility for the child is attributed by operation of law to a person who does not already have such responsibility are governed by the law applying in the country of the new habitual residence; and

                     (c)  the exercise of parental responsibility for the child is governed by the law applying in the country of the new habitual residence.

             (6)  Despite subsections (2) to (5), if:

                     (a)  the law that applies because of this section is the law of a non-Convention country; and

                     (b)  the choice of law rules of that non-Convention country designate that the law of another non-Convention country applies; and

                     (c)  the other non-Convention country would apply its own law;

the law of that other non-Convention country applies instead.

             (7)  The parental responsibility referred to in subsection (2), (3), (4) or (5) may be ended, or the conditions of its exercise changed, by a measure taken in accordance with section 111CD or 111CK.

             (8)  A court need not apply a principle set out in subsection (2), (3), (4) or (5) if, on the application of an interested person, the court considers that doing so would be manifestly contrary to public policy having regard to the best interests of the child concerned.

Subdivision E Recognition of foreign measures

111CT   Effect of registered foreign measures

             (1)  This section applies to a foreign measure that is registered in a court in accordance with regulations made for the purposes of section 111CZ.

             (2)  The foreign measure:

                     (a)  has the same force and effect as a Commonwealth personal protection measure or a Commonwealth property protection measure (as appropriate); and

                     (b)  prevails over any earlier inconsistent measure in force in Australia, including:

                              (i)  an order registered under section 70D or 70G; or

                             (ii)  any other order made, or agreement registered, under this Act.

Subdivision F Co-operation

111CU   Obligation to obtain consent to place child

             (1)  A court must obtain the consent of a competent authority of a Convention country before placing a child in a foster family, or in institutional care, in the Convention country.

             (2)  Before placing a child, the court may order, or invite the parties to proceedings before the court to ask, the Commonwealth central authority to consult a competent authority of the Convention country concerned.

             (3)  If the court orders the Commonwealth central authority to consult, then the court must provide the Commonwealth central authority with a report on the child and the reasons for the proposed placement.

111CV   Obligation to inform competent authority about serious danger to a child

             (1)  A court must inform a competent authority of another country about any information the court may have about any serious danger to a child:

                     (a)  whose residence has moved from Australia to the other country; or

                     (b)  who is present in the other country.

             (2)  Subsection (1) has effect despite any obligation of confidentiality imposed on the court or a person by this Act, any other law or anything else (including a contract or professional ethics).

             (3)  A person is not liable in civil or criminal proceedings, and is not to be considered to have breached any professional ethics, in respect of the provision of information under subsection (1).

             (4)  Evidence of the provision of information under subsection (1) is not admissible in any:

                     (a)  court (whether or not exercising jurisdiction under this Act); or

                     (b)  tribunal or other body concerned with professional ethics;

except where that evidence is given by the person who provided the information.

             (5)  In this section:

court includes a person carrying out duties, performing functions or exercising powers as:

                     (a)  a member of the court personnel; or

                     (b)  a family and child counsellor; or

                     (c)  a family and child mediator; or

                     (d)  an arbitrator.

111CW   Court proceedings for contact

             (1)  A court hearing proceedings under Part VII (Children) or regulations made for the purposes of section 111B concerning contact with a child must admit into evidence and consider the findings (if any) of a competent authority of a Convention country on the suitability of a parent to have contact with the child.

             (2)  A court may adjourn the proceedings concerning contact with a child pending the outcome of a request by a parent of the child to a competent authority of a Convention country for a finding on the suitability of the parent to have contact with the child.

             (3)  On the application of a parent who is an Australian resident seeking to obtain or keep contact with a child, a court may:

                     (a)  admit evidence; and

                     (b)  make a finding on the suitability of that parent to have contact with the child; and

                     (c)  specify conditions on which the contact is to be given.

111CX   Jurisdiction for a location order or a Commonwealth information order

                   A court may make a location order under section 67M or a Commonwealth information order under section 67N for the purposes of the Child Protection Convention.

111CY   Giving information to central authorities and competent authorities in Convention countries

             (1)  This section applies to:

                     (a)  a court; and

                     (b)  the Commonwealth central authority; and

                     (c)  central authorities of Australia appointed as mentioned in Article 29, paragraph 2, of the Child Protection Convention; and

                     (d)  other competent authorities of Australia.

             (2)  If it would be consistent with this Division or the Child Protection Convention to do so, the court or authority may give information to:

                     (a)  a court or an authority of Australia to which this section applies; or

                     (b)  a central authority or other competent authority of a Convention country.

Subdivision G Regulations

111CZ   Regulations to implement the Convention

             (1)  The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Child Protection Convention.

             (2)  Regulations made for the purposes of this section may, in particular:

                     (a)  provide that the regulations do not affect the operation of laws of a State or Territory that relate to the implementation of the Child Protection Convention; and

                     (b)  provide that specified provisions of the Child Protection Convention have the force of law in Australia; and

                     (c)  include a list of Convention countries or territorial units of Convention countries.

             (3)  Regulations made for the purposes of this section may:

                     (a)  confer jurisdiction on a federal court (other than the High Court) or a court of a Territory; or

                     (b)  invest a court of a State with federal jurisdiction.

Such jurisdiction is in addition to any other jurisdiction provided for under this Act.

             (4)  Regulations made for the purposes of subsection (3) may make different provision in respect of matters arising in relation to different States or Territories. This subsection does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901 .

             (5)  Subsections (2), (3) and (4) do not, by implication, limit subsection (1).

Division 5 Other matters

26  At the end of the Act

Add:

Schedule 1 Child Protection Convention

Note:       This is the copy of the Child Protection Convention referred to in the definition of Child Protection Convention in subsection 111CA(1).

   

   

The undersigned, Delegates of the Governments of Argentina, Australia, Austria, Belgium, Canada, China, Croatia, the Czech Republic, Egypt, Finland, The former Yugoslav Republic of Macedonia, France, Germany, Greece, Ireland, Israel, Italy, Japan, Luxembourg, Malta, Mexico, Monaco, Morocco, the Netherlands, Norway, Poland, Portugal, Romania, the Slovak Republic, Spain, Sweden, Switzerland, the United Kingdom of Great Britain and Northern Ireland, the United States of America and Venezuela, Member States, as well as the Representatives of the Governments of Burkina Faso, Colombia, Costa Rica, Ecuador, Georgia, the Holy See, the Republic of Korea, Mauritius, New Zealand, Paraguay, Peru, the Philippines, the Russian Federation, South Africa and Sri Lanka, participating as Observers, convened at The Hague on 30 September 1996, at the invitation of the Government of the Netherlands, in the Eighteenth Session of the Hague Conference on Private International Law.

 

 

Following the deliberations laid down in the records of the meetings, have decided to submit to their Governments—

 

 

CONVENTION ON JURISDICTION, APPLICABLE LAW, RECOGNITION, ENFORCEMENT AND CO-OPERATION IN RESPECT OF PARENTAL RESPONSIBILITY AND MEASURES FOR THE PROTECTION OF CHILDREN

 

 

The States signatory to the present Convention,

 

Considering the need to improve the protection of children in international situations,

 

Wishing to avoid conflicts between their legal systems in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children,

 

Recalling the importance of international co-operation for the protection of children,

 

Confirming that the best interests of the child are to be a primary consideration,

 

Noting that the Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors is in need of revision,

 

Desiring to establish common provisions to this effect, taking into account the United Nations Convention on the Rights of the Child of 20 November 1989,

 

Have agreed on the following provisions—

 

 

 

CHAPTER I—SCOPE OF THE CONVENTION

 

Article 1

 

1          The objects of the present Convention are—

 

a           to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child;

 

b           to determine which law is to be applied by such authorities in exercising their jurisdiction;

 

c           to determine the law applicable to parental responsibility;

 

d           to provide for the recognition and enforcement of such measures of protection in all Contracting States;

 

e           to establish such co-operation between the authorities of the Contracting States as may be necessary in order to achieve the purposes of this Convention.

 

2          For the purposes of this Convention, the term ‘parental responsibility’ includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child.

 

 

 

Article 2

 

The Convention applies to children from the moment of their birth until they reach the age of 18 years.

 

 

 

Article 3

 

The measures referred to in Article 1 may deal in particular with—

 

a           the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation;

 

b           rights of custody, including rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence, as well as rights of access including the right to take a child for a limited period of time to a place other than the child’s habitual residence;

 

c           guardianship, curatorship and analogous institutions;

 

d           the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child;

 

e           the placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution;

 

f            the supervision by a public authority of the care of a child by any person having charge of the child;

 

g           the administration, conservation or disposal of the child’s property.

 

 

 

Article 4

 

The Convention does not apply to—

 

a           the establishment or contesting of a parent-child relationship;

 

b           decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption;

 

c           the name and forenames of the child;

 

d           emancipation;

 

e           maintenance obligations;

 

f            trusts or succession;

 

g           social security;

 

h           public measures of a general nature in matters of education or health;

 

i            measures taken as a result of penal offences committed by children;

 

j            decisions on the right of asylum and on immigration.

 

 

 

CHAPTER II—JURISDICTION

 

Article 5

 

1          The judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child’s person or property.

 

2          Subject to Article 7, in case of a change of the child’s habitual residence to another Contracting State, the authorities of the State of the new habitual residence have jurisdiction.

 

 

 

Article 6

 

1          For refugee children and children who, due to disturbances occurring in their country, are internationally displaced, the authorities of the Contracting State on the territory of which these children are present as a result of their displacement have the jurisdiction provided for in paragraph 1 of Article 5.

 

2          The provisions of the preceding paragraph also apply to children whose habitual residence cannot be established.

 

 

 

Article 7

 

1          In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and

 

a           each person, institution or other body having rights of custody has acquiesced in the removal or retention; or

 

b           the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.

 

2          The removal or the retention of a child is to be considered wrongful where—

 

a           it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

 

b           at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

 

The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

 

3          So long as the authorities first mentioned in paragraph 1 keep their jurisdiction, the authorities of the Contracting State to which the child has been removed or in which he or she has been retained can take only such urgent measures under Article 11 as are necessary for the protection of the person or property of the child.

 

 

 

Article 8

 

1          By way of exception, the authority of a Contracting State having jurisdiction under Article 5 or 6, if it considers that the authority of another Contracting State would be better placed in the particular case to assess the best interests of the child, may either

 

—        request that other authority, directly or with the assistance of the Central Authority of its State, to assume jurisdiction to take such measures of protection as it considers to be necessary, or

 

—        suspend consideration of the case and invite the parties to introduce such a request before the authority of that other State.

 

2          The Contracting States whose authorities may be addressed as provided in the preceding paragraph are

 

a           a State of which the child is a national,

 

b           a State in which property of the child is located,

 

c           a State whose authorities are seised of an application for divorce or legal separation of the child’s parents, or for annulment of their marriage,

 

d           a State with which the child has a substantial connection.

 

3          The authorities concerned may proceed to an exchange of views.

 

4          The authority addressed as provided in paragraph 1 may assume jurisdiction, in place of the authority having jurisdiction under Article 5 or 6, if it considers that this is in the child’s best interests.

 

 

 

Article 9

 

1          If the authorities of a Contracting State referred to in Article 8, paragraph 2, consider that they are better placed in the particular case to assess the child’s best interests, they may either

 

—        request the competent authority of the Contracting State of the habitual residence of the child, directly or with the assistance of the Central Authority of that State, that they be authorised to exercise jurisdiction to take the measures of protection which they consider to be necessary, or

 

—        invite the parties to introduce such a request before the authority of the Contracting State of the habitual residence of the child.

 

2          The authorities concerned may proceed to an exchange of views.

 

3          The authority initiating the request may exercise jurisdiction in place of the authority of the Contracting State of the habitual residence of the child only if the latter authority has accepted the request.

 

 

 

Article 10

 

1          Without prejudice to Articles 5 to 9, the authorities of a Contracting State exercising jurisdiction to decide upon an application for divorce or legal separation of the parents of a child habitually resident in another Contracting State, or for annulment of their marriage, may, if the law of their State so provides, take measures directed to the protection of the person or property of such child if

 

a           at the time of commencement of the proceedings, one of his or her parents habitually resides in that State and one of them has parental responsibility in relation to the child, and

 

b           the jurisdiction of these authorities to take such measures has been accepted by the parents, as well as by any other person who has parental responsibility in relation to the child, and is in the best interests of the child.

 

2          The jurisdiction provided for by paragraph 1 to take measures for the protection of the child ceases as soon as the decision allowing or refusing the application for divorce, legal separation or annulment of the marriage has become final, or the proceedings have come to an end for another reason.

 

 

 

Article 11

 

1          In all cases of urgency, the authorities of any Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take any necessary measures of protection.

 

2          The measures taken under the preceding paragraph with regard to a child habitually resident in a Contracting State shall lapse as soon as the authorities which have jurisdiction under Articles 5 to 10 have taken the measures required by the situation.

 

3          The measures taken under paragraph 1 with regard to a child who is habitually resident in a non-Contracting State shall lapse in each Contracting State as soon as measures required by the situation and taken by the authorities of another State are recognised in the Contracting State in question.

 

 

 

Article 12

 

1          Subject to Article 7, the authorities of a Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take measures of a provisional character for the protection of the person or property of the child which have a territorial effect limited to the State in question, in so far as such measures are not incompatible with measures already taken by authorities which have jurisdiction under Articles 5 to 10.

 

2          The measures taken under the preceding paragraph with regard to a child habitually resident in a Contracting State shall lapse as soon as the authorities which have jurisdiction under Articles 5 to 10 have taken a decision in respect of the measures of protection which may be required by the situation.

 

3          The measures taken under paragraph 1 with regard to a child who is habitually resident in a non-Contracting State shall lapse in the Contracting State where the measures were taken as soon as measures required by the situation and taken by the authorities of another State are recognised in the Contracting State in question.

 

 

 

Article 13

 

1          The authorities of a Contracting State which have jurisdiction under Articles 5 to 10 to take measures for the protection of the person or property of the child must abstain from exercising this jurisdiction if, at the time of the commencement of the proceedings, corresponding measures have been requested from the authorities of another Contracting State having jurisdiction under Articles 5 to 10 at the time of the request and are still under consideration.

 

2          The provisions of the preceding paragraph shall not apply if the authorities before whom the request for measures was initially introduced have declined jurisdiction.

 

 

 

Article 14

 

The measures taken in application of Articles 5 to 10 remain in force according to their terms, even if a change of circumstances has eliminated the basis upon which jurisdiction was founded, so long as the authorities which have jurisdiction under the Convention have not modified, replaced or terminated such measures.

 

 

 

CHAPTER III—APPLICABLE LAW

 

Article 15

 

1          In exercising their jurisdiction under the provisions of Chapter II, the authorities of the Contracting States shall apply their own law.

 

2          However, in so far as the protection of the person or the property of the child requires, they may exceptionally apply or take into consideration the law of another State with which the situation has a substantial connection.

 

3          If the child’s habitual residence changes to another Contracting State, the law of that other State governs, from the time of the change, the conditions of application of the measures taken in the State of the former habitual residence.

 

 

 

Article 16

 

1          The attribution or extinction of parental responsibility by operation of law, without the intervention of a judicial or administrative authority, is governed by the law of the State of the habitual residence of the child.

 

2          The attribution or extinction of parental responsibility by an agreement or a unilateral act, without intervention of a judicial or administrative authority, is governed by the law of the State of the child’s habitual residence at the time when the agreement or unilateral act takes effect.

 

3          Parental responsibility which exists under the law of the State of the child’s habitual residence subsists after a change of that habitual residence to another State.

 

4          If the child’s habitual residence changes, the attribution of parental responsibility by operation of law to a person who does not already have such responsibility is governed by the law of the State of the new habitual residence.

 

 

 

Article 17

 

The exercise of parental responsibility is governed by the law of the State of the child’s habitual residence. If the child’s habitual residence changes, it is governed by the law of the State of the new habitual residence.

 

 

 

Article 18

 

The parental responsibility referred to in Article 16 may be terminated, or the conditions of its exercise modified, by measures taken under this Convention.

 

 

 

Article 19

 

1          The validity of a transaction entered into between a third party and another person who would be entitled to act as the child’s legal representative under the law of the State where the transaction was concluded cannot be contested, and the third party cannot be held liable, on the sole ground that the other person was not entitled to act as the child’s legal representative under the law designated by the provisions of this Chapter, unless the third party knew or should have known that the parental responsibility was governed by the latter law.

 

2          The preceding paragraph applies only if the transaction was entered into between persons present on the territory of the same State.

 

 

 

Article 20

 

The provisions of this Chapter apply even if the law designated by them is the law of a non-Contracting State.

 

 

 

Article 21

 

1          In this Chapter the term “law” means the law in force in a State other than its choice of law rules.

 

2          However, if the law applicable according to Article 16 is that of a non-Contracting State and if the choice of law rules of that State designate the law of another non-Contracting State which would apply its own law, the law of the latter State applies. If that other non-Contracting State would not apply its own law, the applicable law is that designated by Article 16.

 

 

 

Article 22

 

The application of the law designated by the provisions of this Chapter can be refused only if this application would be manifestly contrary to public policy, taking into account the best interests of the child.

 

 

 

CHAPTER IV—RECOGNITION AND ENFORCEMENT

 

Article 23

 

1          The measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States.

 

2          Recognition may however be refused—

 

a           if the measure was taken by an authority whose jurisdiction was not based on one of the grounds provided for in Chapter II;

 

b           if the measure was taken, except in a case of urgency, in the context of a judicial or administrative proceeding, without the child having been provided the opportunity to be heard, in violation of fundamental principles of procedure of the requested State;

 

c           on the request of any person claiming that the measure infringes his or her parental responsibility, if such measure was taken, except in a case of urgency, without such person having been given an opportunity to be heard;

 

d           if such recognition is manifestly contrary to public policy of the requested State, taking into account the best interests of the child;

 

e           if the measure is incompatible with a later measure taken in the non-Contracting State of the habitual residence of the child, where this later measure fulfils the requirements for recognition in the requested State;

 

f            if the procedure provided in Article 33 has not been complied with.

 

 

 

Article 24

 

Without prejudice to Article 23, paragraph 1, any interested person may request from the competent authorities of a Contracting State that they decide on the recognition or non-recognition of a measure taken in another Contracting State. The procedure is governed by the law of the requested State.

 

 

 

Article 25

 

The authority of the requested State is bound by the findings of fact on which the authority of the State where the measure was taken based its jurisdiction.

 

 

 

Article 26

 

1          If measures taken in one Contracting State and enforceable there require enforcement in another Contracting State, they shall, upon request by an interested party, be declared enforceable or registered for the purpose of enforcement in that other State according to the procedure provided in the law of the latter State.

 

2          Each Contracting State shall apply to the declaration of enforceability or registration a simple and rapid procedure.

 

3          The declaration of enforceability or registration may be refused only for one of the reasons set out in Article 23, paragraph 2.

 

 

 

Article 27

 

Without prejudice to such review as is necessary in the application of the preceding Articles, there shall be no review of the merits of the measure taken.

 

 

 

Article 28

 

Measures taken in one Contracting State and declared enforceable, or registered for the purpose of enforcement, in another Contracting State shall be enforced in the latter State as if they had been taken by the authorities of that State. Enforcement takes place in accordance with the law of the requested State to the extent provided by such law, taking into consideration the best interests of the child.

 

 

 

CHAPTER V—CO-OPERATION

 

Article 29

 

1          A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention on such authorities.

 

2          Federal States, States with more than one system of law or States having autonomous territorial units shall be free to appoint more than one Central Authority and to specify the territorial or personal extent of their functions. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which any communication may be addressed for transmission to the appropriate Central Authority within that State.

 

 

 

Article 30

 

1          Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their States to achieve the purposes of the Convention.

 

2          They shall, in connection with the application of the Convention, take appropriate steps to provide information as to the laws of, and services available in, their States relating to the protection of children.

 

 

 

Article 31

 

The Central Authority of a Contracting State, either directly or through public authorities or other bodies, shall take all appropriate steps to—

 

a           facilitate the communications and offer the assistance provided for in Articles 8 and 9 and in this Chapter;

 

b           facilitate, by mediation, conciliation or similar means, agreed solutions for the protection of the person or property of the child in situations to which the Convention applies;

 

c           provide, on the request of a competent authority of another Contracting State, assistance in discovering the whereabouts of a child where it appears that the child may be present and in need of protection within the territory of the requested State.

 

 

 

Article 32

 

On a request made with supporting reasons by the Central Authority or other competent authority of any Contracting State with which the child has a substantial connection, the Central Authority of the Contracting State in which the child is habitually resident and present may, directly or through public authorities or other bodies,

 

a           provide a report on the situation of the child;

 

b           request the competent authority of its State to consider the need to take measures for the protection of the person or property of the child.

 

 

 

Article 33

 

1          If an authority having jurisdiction under Articles 5 to 10 contemplates the placement of the child in a foster family or institutional care, or the provision of care by kafala or an analogous institution, and if such placement or such provision of care is to take place in another Contracting State, it shall first consult with the Central Authority or other competent authority of the latter State. To that effect it shall transmit a report on the child together with the reasons for the proposed placement or provision of care.

 

2          The decision on the placement or provision of care may be made in the requesting State only if the Central Authority or other competent authority of the requested State has consented to the placement or provision of care, taking into account the child’s best interests.

 

 

 

Article 34

 

1          Where a measure of protection is contemplated, the competent authorities under the Convention, if the situation of the child so requires, may request any authority of another Contracting State which has information relevant to the protection of the child to communicate such information.

 

2          A Contracting State may declare that requests under paragraph 1 shall be communicated to its authorities only through its Central Authority.

 

 

 

Article 35

 

1          The competent authorities of a Contracting State may request the authorities of another Contracting State to assist in the implementation of measures of protection taken under this Convention, especially in securing the effective exercise of rights of access as well as of the right to maintain direct contacts on a regular basis.

 

2          The authorities of a Contracting State in which the child does not habitually reside may, on the request of a parent residing in that State who is seeking to obtain or to maintain access to the child, gather information or evidence and may make a finding on the suitability of that parent to exercise access and on the conditions under which access is to be exercised. An authority exercising jurisdiction under Articles 5 to 10 to determine an application concerning access to the child, shall admit and consider such information, evidence and finding before reaching its decision.

 

3          An authority having jurisdiction under Articles 5 to 10 to decide on access may adjourn a proceeding pending the outcome of a request made under paragraph 2, in particular, when it is considering an application to restrict or terminate access rights granted in the State of the child’s former habitual residence.

 

4          Nothing in this Article shall prevent an authority having jurisdiction under Articles 5 to 10 from taking provisional measures pending the outcome of the request made under paragraph 2.

 

 

 

Article 36

 

In any case where the child is exposed to a serious danger, the competent authorities of the Contracting State where measures for the protection of the child have been taken or are under consideration, if they are informed that the child’s residence has changed to, or that the child is present in another State, shall inform the authorities of that other State about the danger involved and the measures taken or under consideration.

 

 

 

Article 37

 

An authority shall not request or transmit any information under this Chapter if to do so would, in its opinion, be likely to place the child’s person or property in danger, or constitute a serious threat to the liberty or life of a member of the child’s family.

 

 

 

Article 38

 

1          Without prejudice to the possibility of imposing reasonable charges for the provision of services, Central Authorities and other public authorities of Contracting States shall bear their own costs in applying the provisions of this Chapter.

 

2          Any Contracting State may enter into agreements with one or more other Contracting States concerning the allocation of charges.

 

 

 

Article 39

 

Any Contracting State may enter into agreements with one or more other Contracting States with a view to improving the application of this Chapter in their mutual relations. The States which have concluded such an agreement shall transmit a copy to the depositary of the Convention.

 

 

 

CHAPTER VI—GENERAL PROVISIONS

 

Article 40

 

1          The authorities of the Contracting State of the child’s habitual residence, or of the Contracting State where a measure of protection has been taken, may deliver to the person having parental responsibility or to the person entrusted with protection of the child’s person or property, at his or her request, a certificate indicating the capacity in which that person is entitled to act and the powers conferred upon him or her.

 

2          The capacity and powers indicated in the certificate are presumed to be vested in that person, in the absence of proof to the contrary.

 

3          Each Contracting State shall designate the authorities competent to draw up the certificate.

 

 

 

Article 41

 

Personal data gathered or transmitted under the Convention shall be used only for the purposes for which they were gathered or transmitted.

 

 

 

Article 42

 

The authorities to whom information is transmitted shall ensure its confidentiality, in accordance with the law of their State.

 

 

 

Article 43

 

All documents forwarded or delivered under this Convention shall be exempt from legalisation or any analogous formality.

 

 

 

Article 44

 

Each Contracting State may designate the authorities to which requests under Articles 8, 9 and 33 are to be addressed.

 

 

 

Article 45

 

1          The designations referred to in Articles 29 and 44 shall be communicated to the Permanent Bureau of the Hague Conference on Private International Law.

 

2          The declaration referred to in Article 34, paragraph 2, shall be made to the depositary of the Convention.

 

 

 

Article 46

 

A Contracting State in which different systems of law or sets of rules of law apply to the protection of the child and his or her property shall not be bound to apply the rules of the Convention to conflicts solely between such different systems or sets of rules of law.

 

 

 

Article 47

 

In relation to a State in which two or more systems of law or sets of rules of law with regard to any matter dealt with in this Convention apply in different territorial units—

 

1          any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit;

 

2          any reference to the presence of the child in that State shall be construed as referring to presence in a territorial unit;

 

3          any reference to the location of property of the child in that State shall be construed as referring to location of property of the child in a territorial unit;

 

4          any reference to the State of which the child is a national shall be construed as referring to the territorial unit designated by the law of that State or, in the absence of relevant rules, to the territorial unit with which the child has the closest connection;

 

5          any reference to the State whose authorities are seised of an application for divorce or legal separation of the child’s parents, or for annulment of their marriage, shall be construed as referring to the territorial unit whose authorities are seised of such application;

 

6          any reference to the State with which the child has a substantial connection shall be construed as referring to the territorial unit with which the child has such connection;

 

7          any reference to the State to which the child has been removed or in which he or she has been retained shall be construed as referring to the relevant territorial unit to which the child has been removed or in which he or she has been retained;

 

8          any reference to bodies or authorities of that State, other than Central Authorities, shall be construed as referring to those authorised to act in the relevant territorial unit;

 

9          any reference to the law or procedure or authority of the State in which a measure has been taken shall be construed as referring to the law or procedure or authority of the territorial unit in which such measure was taken;

 

10         any reference to the law or procedure or authority of the requested State shall be construed as referring to the law or procedure or authority of the territorial unit in which recognition or enforcement is sought.

 

 

 

Article 48

 

For the purpose of identifying the applicable law under Chapter III, in relation to a State which comprises two or more territorial units each of which has its own system of law or set of rules of law in respect of matters covered by this Convention, the following rules apply—

 

a           if there are rules in force in such a State identifying which territorial unit’s law is applicable, the law of that unit applies;

 

b           in the absence of such rules, the law of the relevant territorial unit as defined in Article 47 applies.

 

 

 

Article 49

 

For the purpose of identifying the applicable law under Chapter III, in relation to a State which has two or more systems of law or sets of rules of law applicable to different categories of persons in respect of matters covered by this Convention, the following rules apply—

 

a           if there are rules in force in such a State identifying which among such laws applies, that law applies;

 

b           in the absence of such rules, the law of the system or the set of rules of law with which the child has the closest connection applies.

 

 

 

Article 50

 

This Convention shall not affect the application of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction , as between Parties to both Conventions. Nothing, however, precludes provisions of this Convention from being invoked for the purposes of obtaining the return of a child who has been wrongfully removed or retained or of organising access rights.

 

 

 

Article 51

 

In relations between the Contracting States this Convention replaces the Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors, and the Convention governing the guardianship of minors , signed at The Hague 12 June 1902, without prejudice to the recognition of measures taken under the Convention of 5 October 1961 mentioned above.

 

 

 

Article 52

 

1          This Convention does not affect any international instrument to which Contracting States are Parties and which contains provisions on matters governed by the Convention, unless a contrary declaration is made by the States Parties to such instrument.

 

2          This Convention does not affect the possibility for one or more Contracting States to conclude agreements which contain, in respect of children habitually resident in any of the States Parties to such agreements, provisions on matters governed by this Convention.

 

3          Agreements to be concluded by one or more Contracting States on matters within the scope of this Convention do not affect, in the relationship of such States with other Contracting States, the application of the provisions of this Convention.

 

4          The preceding paragraphs also apply to uniform laws based on special ties of a regional or other nature between the States concerned.

 

 

 

Article 53

 

1          The Convention shall apply to measures only if they are taken in a State after the Convention has entered into force for that State.

 

2          The Convention shall apply to the recognition and enforcement of measures taken after its entry into force as between the State where the measures have been taken and the requested State.

 

 

 

Article 54

 

1          Any communication sent to the Central Authority or to another authority of a Contracting State shall be in the original language, and shall be accompanied by a translation into the official language or one of the official languages of the other State or, where that is not feasible, a translation into French or English.

 

2          However, a Contracting State may, by making a reservation in accordance with Article 60, object to the use of either French or English, but not both.

 

 

 

Article 55

 

1          A Contracting State may, in accordance with Article 60,

 

a           reserve the jurisdiction of its authorities to take measures directed to the protection of property of a child situated on its territory;

 

b           reserve the right not to recognise any parental responsibility or measure in so far as it is incompatible with any measure taken by its authorities in relation to that property.

 

2          The reservation may be restricted to certain categories of property.

 

 

 

Article 56

 

The Secretary General of the Hague Conference on Private International Law shall at regular intervals convoke a Special Commission in order to review the practical operation of the Convention.

 

 

 

CHAPTER VII—FINAL CLAUSES

 

Article 57

 

1          The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Eighteenth Session.

 

2          It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Convention.

 

 

 

Article 58

 

1          Any other State may accede to the Convention after it has entered into force in accordance with Article 61, paragraph 1.

 

2          The instrument of accession shall be deposited with the depositary.

 

3          Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the six months after the receipt of the notification referred to in sub-paragraph b of Article 63. Such an objection may also be raised by States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the depositary.

 

 

 

Article 59

 

1          If a State has two or more territorial units in which different systems of law are applicable in relation to matters dealt with in this Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that the Convention shall extend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time.

 

2          Any such declaration shall be notified to the depositary and shall state expressly the territorial units to which the Convention applies.

 

3          If a State makes no declaration under this Article, the Convention is to extend to all territorial units of that State.

 

 

 

Article 60

 

1          Any State may, not later than the time of ratification, acceptance, approval or accession, or at the time of making a declaration in terms of Article 59, make one or both of the reservations provided for in Articles 54, paragraph 2, and 55. No other reservation shall be permitted.

 

2          Any State may at any time withdraw a reservation it has made. The withdrawal shall be notified to the depositary.

 

3          The reservation shall cease to have effect on the first day of the third calendar month after the notification referred to in the preceding paragraph.

 

 

 

Article 61

 

1          The Convention shall enter into force on the first day of the month following the expiration of three months after the deposit of the third instrument of ratification, acceptance or approval referred to in Article 57.

 

2          Thereafter the Convention shall enter into force—

 

a           for each State ratifying, accepting or approving it subsequently, on the first day of the month following the expiration of three months after the deposit of its instrument of ratification, acceptance, approval or accession;

 

b           for each State acceding, on the first day of the month following the expiration of three months after the expiration of the period of six months provided in Article 58, paragraph 3;

 

c           for a territorial unit to which the Convention has been extended in conformity with Article 59, on the first day of the month following the expiration of three months after the notification referred to in that Article.

 

 

 

Article 62

 

1          A State Party to the Convention may denounce it by a notification in writing addressed to the depositary. The denunciation may be limited to certain territorial units to which the Convention applies.

 

2          The denunciation takes effect on the first day of the month following the expiration of twelve months after the notification is received by the depositary. Where a longer period for the denunciation to take effect is specified in the notification, the denunciation takes effect upon the expiration of such longer period.

 

 

 

Article 63

 

The depositary shall notify the States Members of the Hague Conference on Private International Law and the States which have acceded in accordance with Article 58 of the following—

 

a           the signatures, ratifications, acceptances and approvals referred to in Article 57;

 

b           the accessions and objections raised to accessions referred to in Article 58;

 

c           the date on which the Convention enters into force in accordance with Article 61;

 

d           the declarations referred to in Articles 34, paragraph 2, and 59;

 

e           the agreements referred to in Article 39;

 

f            the reservations referred to in Articles 54, paragraph 2, and 55 and the withdrawals referred to in Article 60, paragraph 2;

 

g           the denunciations referred to in Article 62.

 

 

In witness whereof the undersigned, being duly authorised thereto, have signed this Convention.

 

 

[Signatures omitted]

 

Done at The Hague, on the 19th day of October 1996, in the English and French languages, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Government of the Kingdom of the Netherlands, and of which a certified copy shall be sent, through diplomatic channels, to each of the States Members of the Hague Conference on Private International Law at the date of its Eighteenth Session.

 

 

 

[ Minister’s second reading speech made in—

House of Representatives on 13 March 2002

Senate on 20 August 2002 ]

 

(64/02)