Child Protection (International Measures) Act 2006

This Act is the Child Protection (International Measures) Act 2006.

This Act commences on a day or days to be appointed by proclamation.

The objects of this Act are to recognise—

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

the need to avoid conflict between the legal systems of different countries about the jurisdiction, applicable law, recognition and enforcement of measures for the protection of children, and

that a child’s best interests are a primary consideration in relation to a measure for protecting the person of the child or a measure for protecting the child’s property.

This Act does not apply to a matter to which the Child Protection Convention does not apply under Article 4 of the Convention.

In addition to measures to which the Child Protection Convention applies under Article 53 of the Convention, this Act applies to a measure taken in another country before the Convention has entered into force for that country if, at all relevant times that action is taken under this Act in relation to the measure, the Convention is in force for that country and Australia.

This Act does not apply in relation to matters dealt with under an arrangement with New Zealand under Chapter 14A of the Children and Young Persons (Care and Protection) Act 1998.

To the extent that this Act and an arrangement referred to in subsection (3) are inconsistent in providing for the exercise of jurisdiction by a New South Wales authority or a competent authority in a Convention country, this Act prevails.

In this Act—

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

Australia includes the external Territories.

Note.

The Interpretation Act 1987 defines an external Territory as a Territory, not being an internal Territory, for the government of which as a Territory provision is made by a Commonwealth Act. An internal Territory is the Australian Capital Territory, the Jervis Bay Territory or the Northern Territory.

authorised carer has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998.

central authority of a Convention country means—

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

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 means a person who is under the age of 18 years.

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 has the same meaning as in section 111CA (1) of the Family Law Act 1975 of the Commonwealth.

Note.

Under section 111CA (1) of the Family Law Act 1975 of the Commonwealth, Commonwealth central authority means the Secretary of the Commonwealth Attorney-General’s Department.

competent authority—

in relation to 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—

protecting the person of a child, or

appointing or deciding the powers of a guardian of a child’s property, and

in relation to 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

in relation to 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—

protecting the person of a child, or

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.

Department means the Department of Communities and Justice.

designated agency has the same meaning as in the Children’s Guardian Act 2019.

entity includes the following—

an individual,

a corporation,

an unincorporated body,

a government authority or body,

a court or tribunal.

foreign measure means—

a foreign personal protection measure relating to a child, or

a foreign property protection measure relating to a child.

foreign personal protection measure relating to a child means a measure (as referred to in 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 (as referred to in 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.

interested person, in relation to a child the subject of a measure or proceedings, means—

the child, or

a parent of the child, or

a grandparent of the child, or

any other person concerned with the care, welfare or development of the child.

New South Wales authority means—

for a New South Wales personal protection measure relating to a child—a New South Wales court or the Secretary, or

for a New South Wales property protection measure relating to a child—a New South Wales court or the NSW Trustee.

New South Wales court means—

the Supreme Court, or

the District Court, or

the Children’s Court, or

the Local Court, or

(Repealed)

the Civil and Administrative Tribunal.

New South Wales law means the law in force in New South Wales.

New South Wales measure means—

a New South Wales personal protection measure relating to a child, or

a New South Wales property protection measure relating to a child.

New South Wales personal protection measure relating to a child means a measure (as referred to in the Child Protection Convention) under New South Wales law that is directed to the protection of the person of the child.

Note.

Examples of New South Wales personal protection measures—

1 A care order or out-of-home care order, within the meaning of the Children and Young Persons (Care and Protection) Act 1998.

2 An order of the Supreme Court providing for the taking of a child into the Secretary’s custody.

3 An order protecting the person of a child made by the Supreme Court exercising its inherent jurisdiction for children, including authorising the performance of a medical procedure on, or treatment of, a child for which a parent does not have authority, under New South Wales law, to consent.

4 A guardianship order or financial management order made by the Civil and Administrative Tribunal or a consent to medical treatment given by that Tribunal.

Article 3, sub-paragraphs a–f of the Child Protection Convention give examples of the matters that the measures may deal with.

New South Wales property protection measure relating to a child means a measure (as referred to in the Child Protection Convention) under New South Wales law for appointing, or deciding the powers of, a guardian of the child’s property.

Note.

Article 3, sub-paragraph g of the Child Protection Convention gives examples of the matters that the measures may deal with.

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

NSW Trustee means the NSW Trustee and Guardian constituted under the NSW Trustee and Guardian Act 2009.

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

Note.

Article 1, paragraph 2 of the Child Protection Convention defines the term parental responsibility.

refugee child means a child—

who is a refugee, or

who is internationally displaced due to disturbances occurring in his or her country of habitual residence, or

whose country of habitual residence cannot be determined,

and who is not detained under the Migration Act 1958 of the Commonwealth.

registrar, in relation to a court, means—

if the court is the Supreme Court—a registrar, within the meaning of section 19 of the Supreme Court Act 1970, or

if the court is the District Court—a registrar referred to in section 18G of the District Court Act 1973, or

if the court is the Children’s Court—a Registrar referred to in section 11 of the Children’s Court Act 1987, or

if the court is the Local Court—a registrar referred to in section 18 of the Local Court Act 2007 (but not a deputy registrar).

Secretary means the Secretary of the Department.

Unless the contrary intention appears, expressions used—

in this Act, or

in regulations made for the purposes of this Act,

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

Notes included in this Act do not form part of this Act.

This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.

If, under this Act, a New South Wales court may exercise jurisdiction for a matter, the court may exercise the jurisdiction for the matter—

on application by the Secretary or the NSW Trustee, or

on its own initiative.

For the purposes of this Act, the Secretary and NSW Trustee may make applications to a New South Wales court.

Subsections (1) and (2) are not limited by, and do not limit, a provision made by or under this Act or another Act that states other persons may make an application under this Act or otherwise make a request to a New South Wales court.

Note.

Example for subsection (3)—As mentioned in section 16 (2) (b) (iii), a New South Wales authority may exercise jurisdiction in relation to a child habitually resident in a Convention country only if the New South Wales authority is requested to assume the jurisdiction by, or at the invitation of, a competent authority of the country of the child’s habitual residence or country of refuge.

This Part applies only if an issue under New South Wales law is whether a New South Wales court or the Secretary, as opposed to any of the following authorities, is to take measures directed to the protection of the person of a child—

a central authority or competent authority of a Convention country,

a competent authority of a non-Convention country.

This Part does not apply if an issue under New South Wales law is whether a New South Wales court or the Secretary, as opposed to another competent authority of Australia, is to take measures directed to the protection of the person of a child.

This section applies if a New South Wales authority has jurisdiction under New South Wales law, apart from this Act, for a New South Wales personal protection measure relating to a child.

The New South Wales authority may exercise jurisdiction for a New South Wales personal protection measure relating to a child only in relation to—

a child who is present and habitually resident in Australia, or

a child who is present in Australia and habitually resident in a Convention country, if—

the child’s protection requires taking the measure as a matter of urgency, or

the measure is provisional and limited in its territorial effect to Australia, or

the child is a refugee child, or

a request to assume jurisdiction is made to the New South Wales authority by a competent authority of the country of the child’s habitual residence, or

a competent authority of the country of the child’s habitual residence agrees to the New South Wales authority assuming jurisdiction, or

a child who is present in a Convention country, if—

the child is habitually resident in Australia, or

the child has been wrongfully removed from or retained outside Australia and New South Wales authorities keep jurisdiction under Article 7 of the Child Protection Convention, or

a request to assume jurisdiction is made to the New South Wales authority by a competent authority of the country of the child’s habitual residence or country of refuge, or

a competent authority of the country of the child’s habitual residence or country of refuge agrees to the New South Wales authority assuming jurisdiction, or

a child who is present in Australia and is a refugee child, or

a child who is present in a non-Convention country, if—

the child is habitually resident in Australia, or

the child is habitually resident in a non-Convention country and is an Australian citizen, or

a child who is present in Australia, if the child is habitually resident in a non-Convention country.

The New South Wales authority may exercise jurisdiction under subsection (2) (b) (ii) only if the measure is not incompatible with a foreign measure already taken by a competent authority of a Convention country under Articles 5–10 of the Child Protection Convention.

Subsection (2) (a)–(d) are subject to the limitations in sections 10, 11 and 13.

A New South Wales authority must not, other than in a case of urgency, exercise jurisdiction under section 9 (2) (a), (b), (c) or (d) to take a New South Wales personal protection measure relating to a child if—

the child has been wrongfully removed from or retained outside a Convention country, and

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

This section applies to the exercise of jurisdiction by a New South Wales authority under section 9 (2) (b) (iii)–(v) or (c).

If the New South Wales authority is a New South Wales court, before the court exercises the jurisdiction it must order the Secretary—

to use the Secretary’s best efforts to consult with the competent authorities in the Convention country to find out whether measures relating to the protection of the person of the child have been sought from the competent authorities, and

to report to the court about the outcome of those efforts.

If the New South Wales authority is the Secretary, before the Secretary exercises the jurisdiction the Secretary must use his or her best endeavours to consult with the competent authorities in the Convention country—

to find out whether measures relating to the protection of the person of the child have been sought from the competent authorities, and

to decide the most appropriate course of action.

A New South Wales authority 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 a competent authority of a Convention country for the New South Wales authority to assume jurisdiction to take a New South Wales personal protection measure relating to the child.

If the New South Wales authority is a New South Wales court, the court may order the Secretary to do both of the following in a way that the Secretary considers appropriate—

to request, under Article 9 of the Child Protection Convention, that a competent authority of a Convention country agree to the New South Wales court assuming jurisdiction to take a New South Wales personal protection measure relating to the child,

to report to the court about the outcome of the request.

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