Child Protection (International Measures) Act 2003

Child Protection (International Measures) Act 2003

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

This Act commences on a day to be proclaimed.

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.

In this Act, unless the contrary intention appears – another country means a Convention country or a non-Convention country;Australia includes the external Territories; 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 an individual who is under 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;Children's Court means the Magistrates Court (Children's Division) established under the Magistrates Court (Children's Division) Act 1998;Commonwealth central authority has the meaning given by the Family Law Act 1975 of the Commonwealth, section 111CA(1); competent authority means – a competent authority of Australia; or a competent authority of a Convention country; or a competent authority of a non-Convention country; 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 – protecting the person of a child; or appointing or deciding the powers of a guardian of a child's property; 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; 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 – 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; entity includes the following:an individual; a corporation; an unincorporated body; a statutory authority or body; a court or tribunal; foreign measure means – a foreign personal protection measure; or a foreign property protection measure; foreign personal protection measure, in relation 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, in relation 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;Public Trustee means The Public Trustee established under the Public Trustee Act 1930; 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; registrar, in relation to a court, means – if the court is the Supreme Court, the Registrar of the Supreme Court; or if the court is the Children's Court, a district registrar of the district registry of the court; or if the court is the Magistrates Court, a district registrar of the district registry of the court;Tasmanian authority means – for a Tasmanian personal protection measure relating to a child, a Tasmanian court or the Department; or for a Tasmanian property protection measure, a Tasmanian court or The Public Trustee;Tasmanian court means – the Supreme Court; or the Children's Court; or the Magistrates Court;Tasmanian law means the law in force in Tasmania;Tasmanian measure means – a Tasmanian personal protection measure relating to a child; or a Tasmanian property protection measure relating to a child;Tasmanian personal protection measure, in relation to a child, means a measure (within the meaning of the Child Protection Convention) under Tasmanian law that is directed to the protection of the person of the child;Tasmanian property protection measure, in relation to a child, means a measure (within the meaning of the Child Protection Convention) under Tasmanian law for appointing, or deciding the powers of, a guardian of the child's property.

Unless the contrary intention appears, expressions used in this Act have the same meaning as they have in the Child Protection Convention.

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, 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 the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

If, under this Act, a Tasmanian court may exercise jurisdiction for a matter, the court may exercise the jurisdiction for the matter – on application by the Department or Public Trustee; or on its own initiative.

For this Act, the Department and Public Trustee may make applications to a Tasmanian 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 Tasmanian court.

This Part applies only if an issue under Tasmanian law is whether a Tasmanian court or the Department, as distinct from 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 Tasmanian law is whether a Tasmanian court or the Department, as distinct from another competent authority of Australia, is to take measures directed to the protection of the person of a child.

This section applies if a Tasmanian authority has jurisdiction under Tasmanian law, apart from this Act, for a Tasmanian personal protection measure in relation to a child.

The Tasmanian authority may exercise jurisdiction for a Tasmanian 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 the Tasmanian 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 Tasmanian 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 Tasmanian authorities keep jurisdiction under Article 7 of the Child Protection Convention; or a request to assume jurisdiction is made to the Tasmanian 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 Tasmanian 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 Tasmanian authority may only exercise jurisdiction in accordance with 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), (b), (c) and (d) is subject to the limitations in sections 10, 11 and 13.

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

If the Tasmanian authority is a Tasmanian court, before the court exercises the jurisdiction, the court 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 Tasmanian 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.