Child Protection (International Measures) Act 2003

This Act may be cited as the Child Protection (International Measures) Act 2003.

Schedule 3 commences on a day to be fixed by proclamation.

The main purposes 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.

This Act does not apply in relation to matters dealt with under an arrangement with New Zealand under the Child Protection Act 1999, chapter 7, parts 1 to 6.

To the extent that this Act and an arrangement referred to in subsection (2) are inconsistent in providing for the exercise of jurisdiction by a Queensland authority or a competent authority in a Convention country, this Act prevails.

In addition to measures to which the Child Protection Convention applies under Article 53, 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 binds all persons, including the State.

The dictionary in schedule 4 defines particular words used in this Act.

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.

If, under this Act, a Queensland court may exercise jurisdiction for a matter, the court may exercise the jurisdiction for the matter—

on application by the department, litigation director or public trustee; or

on its own initiative.

For this Act, department, litigation director and public trustee may make applications to a Queensland 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 Queensland court.

Example for subsection (3)—

As mentioned in section 16(2)(b)(iii), a Queensland authority may exercise jurisdiction in relation to a child habitually resident in a Convention country only if the Queensland 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 Queensland law is whether a Queensland court, the department or the litigation director, 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 Queensland law is whether a Queensland court, the department or the litigation director, 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 Queensland authority has jurisdiction under Queensland law, apart from this Act, for a Queensland personal protection measure in relation to a child.

The Queensland authority may exercise jurisdiction for a Queensland personal protection measure 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 a Queensland court or the department 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 a Queensland court or the department 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 Queensland authorities keep jurisdiction under Article 7 of the Child Protection Convention; or

a request to assume jurisdiction is made to a Queensland court or the department 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 a Queensland court or the department 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 Queensland authority may only exercise jurisdiction under subsection (2)(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.

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

A Queensland authority must not, other than in a case of urgency, exercise jurisdiction under section 9(2)(a), (b), (c) or (d) to take a Queensland 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 Queensland authority under section 9(2)(b)(iii) to (v) or (c).

If the Queensland authority is a Queensland court, before the court exercises the jurisdiction, it must order the department—

to use the department’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 Queensland authority is the department, before the department exercises the jurisdiction, the department must use its 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 decide the most appropriate course of action.

If the Queensland authority is the litigation director, before the director exercises the jurisdiction, the director must be satisfied the department has used its 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.

A Queensland authority other than the litigation director 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 Queensland authority to assume jurisdiction to take a Queensland personal protection measure relating to the child.

If the Queensland authority is a Queensland court, the court may order the department to do both of the following in a way that the department considers appropriate—

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

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

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