The Child Protection (International Measures) Bill 2003 (Qld)

Queensland Parliamentary Library

The Child Protection (International Measures) Bill 2003 (Qld) The Child Protection (International Measures) Bill 2003 (Qld) was introduced into the Queensland Legislative Assembly on 4 June 2003 by the Minister for Families, the Hon Judy Spence MP. The Bill implements the child protection aspects of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children 1996 which will come into force on 1 August 2003. That Convention provides a framework for cooperation and sharing of information between countries and establishes rules about jurisdiction of authorities in relation to child protection and family law matters involving children across international borders.

It is hoped that ratification and implementation of the Child Protection Convention will reduce delays and, through cooperative measures, enable the best solution to be found to protect children who move between countries from harm.

Research Brief 2003/18 discusses the child protection aspects of the Convention which the new Queensland Bill will implement. The family law/parental responsibly provisions have been implemented by the Commonwealth in the Family Law Amendment (Child Protection Convention) Act 2002.

Nicolee Dixon

Research Brief No 2003/18

Queensland Parliamentary Library Research Publications and Resources Section

Ms Karen Sampford, Director (07) 3406 7116

Ms Nicolee Dixon, Senior Parliamentary Research Officer (07) 3406 7409

Ms Renèe Easten, Parliamentary Research Officer (07) 3406 7241

© Queensland Parliamentary Library, 2003

ISSN 1443-7902 ISBN 0 7345 2863 9 AUGUST 2003

Copyright protects this publication. Except for purposes permitted by the Copyright Act 1968, reproduction by whatever means is prohibited, other than by Members of the Queensland Parliament in the course of their official duties, without the prior written permission of the Clerk of the Parliament on behalf of the Parliament of Queensland.

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http://www.parliament.qld.gov.au/Parlib/Publications/publications.htm

CONTENTS

1 INTRODUCTION .............................................................................................1

2 CHILD PROTECTION LEGISLATION IN QUEENSLAND .......................2

3 THE HAGUE CHILD PROTECTION CONVENTION.................................3

3.1 BACKGROUND ................................................................................................3

3.2 OVERVIEW OF THE CHILD PROTECTION CONVENTION .....................................4

3.3 REASONS FOR IMPLEMENTING THE CHILD PROTECTION CONVENTION ............6

3.4 SCOPE OF THE CHILD PROTECTION CONVENTION ............................................7

4 IMPLEMENTATION THROUGH LEGISLATION ......................................8

5 IMPLEMENTING THE CHILD PROTECTION CONVENTION UNDER THE CHILD PROTECTION (INTERNATIONAL MEASURES) BILL 2002 (QLD).......................................................................................................10

5.1 OBJECTS.......................................................................................................11

5.2 SOME KEY DEFINITIONS ...............................................................................11

5.3 JURISDICTION OF COURTS AND CHILD PROTECTION AUTHORITIES ................12

5.3.1 Protecting the Person of the Child...........................................................12

5.3.2 Guardianship of a Child’s Property.........................................................16

5.4 APPLICABLE LAW.........................................................................................19

5.5 RECOGNITION AND ENFORCEMENT ...............................................................20

5.6 COOPERATION..............................................................................................23

6 COMMONWEALTH FAMILY LAW AMENDMENT (CHILD PROTECTION CONVENTION) BILL 2002 ................................................25

APPENDIX A – MINISTERIAL MEDIA STATEMENT...................................27

RECENT QPL RESEARCH PUBLICATIONS 2003 ..........................................29

Child Protection (International Measures) Bill 2003 (Qld) Page 1

1 INTRODUCTION

The Child Protection (International Measures) Bill 2003 (Qld) was introduced into the Queensland Legislative Assembly on 4 June 2003 by the Minister for Families, the Hon Judy Spence MP.1 The Bill implements the child protection aspects of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children 1996 (the Child Protection Convention) which will come into force on 1 August 2003. That Convention provides a framework for cooperation and sharing of information between countries and establishes rules about jurisdiction of authorities in relation to child protection and family law matters involving children across international borders.

While the number of child protection cases with an international dimension is not large, they do absorb considerable time and resources of state and territory child protection agencies. That is due to the constant difficulties faced by those agencies in identifying the appropriate overseas counterpart for consultation and negotiation purposes to ascertain the best course for addressing a situation. Generally, diplomatic channels need to be utilised.2 Where litigation is commenced, conflict of laws issues may arise regarding which country’s authorities has jurisdiction over the matter and what legal system applies. It is hoped that ratification and implementation of the Child Protection Convention will reduce delays and, through cooperation measures, enable the best solution to be found to protect children who move between countries from harm.

The Bill also makes some minor amendments to the Child Protection Act 1999 and the Juvenile Justice Act 1992.

This Brief discusses the child protection aspects of the Convention which the new Queensland Bill will implement. The family law/parental responsibly provisions have been implemented by the Commonwealth in the Family Law Amendment (Child Protection Convention) Act 2002.

1 Ms Spence is also the Minister for Aboriginal and Torres Strait Islander Policy and Minister for

Disability Services and Minister for Seniors.

2 Hon J C Spence MP, Minister for Families, Second Reading Speech, Child Protection (International Measures) Bill 2003 (Qld), Queensland Parliamentary Debates, 4 June 2003, pp 2548-2551, p 2549.

Page 2 Queensland Parliamentary Library

2 CHILD PROTECTION LEGISLATION IN QUEENSLAND

Child protection legislation of various types has existed in Queensland for over 150 years, reflecting how society and the legal system has viewed children’s rights and needs at different times. This was particularly marked in relation to the treatment of Aboriginal and Torres Trait Islander children and their families.3

The first major piece of child protection legislation was the Children’s Services Act 1965 (Qld) which sought to protect children from neglect and other inappropriate behaviour by their parents and guard them from unacceptable living conditions. A common response to protecting children in the early days of administering that legislation was by removing them from their parents’ care in situations of neglect (which was seen as including living in poverty) and placing them in State care until the age of 18 years. Parents could also apply to the Department for the child to be placed under the formal guardianship of the chief executive of the Department. The 1965 Act underwent some minor amendments but remained substantially unchanged until 1999.

The Child Protection Act 1999 reflects the significant change in attitude to child protection issues over the past 35 years. It commenced in 2000 with the intention of responding to new challenges, implementing modern practices in child protection service delivery and reflecting contemporary views about children’s rights and needs. Under the new legislation, removal of children from parental care is less common, the preference being for a response that leaves the child with the parents under the supervision of the Department to ensure that the child’s protective needs are met.

A comprehensive discussion of the child protection legislation is provided by the Queensland Parliamentary Library Legislation Bulletin: In the Best Interests of the Child: The Child Protection Bill 1998.4

While the Child Protection Act 1999 concerns protection of children at a state level, the increasing mobility of families, the ease in international travel, more cross-cultural marriages, and displacement due to civil unrest or natural disasters means that a growing number of children require protection across international borders. The Child Protection Convention recognises the problems of protecting children from neglect and abuse when there is an international aspect involved and attempts to set out internationally agreed rules about which child protection authorities have jurisdiction over a child when a situation involving abuse or neglect arises.

3 Queensland Department of Families, Youth and Community Care, ‘Child Protection Legislation –

An Historical Perspective, Information Sheet, March 2000.

4 K A Collins, LB 2/99, March 1999.


3 THE HAGUE CHILD PROTECTION CONVENTION

The main purpose of the Child Protection Convention is to overcome competition between authorities of different countries in adopting measures to protect children and obliges signatories to accept limitations on jurisdiction to avoid conflicts about jurisdiction, applicable law, and recognition and enforcement of child protection measures. It also contains mechanisms for facilitating cooperation between party countries.5

3.1 BACKGROUND

Australia is party to two other Conventions to promote the protection of children across international boundaries: The 1980 Hague Convention on Civil Aspects of Iinternational Child Abduction and the 1993 Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption.6 The Convention on Child Abduction is claimed to be one of the most successful Hague Conventions, with many countries having either ratified it or being in the process of doing so. Australia joined in 1987.7 Contracting parties agree that a child who is habitually resident in one party country, and who has been removed to or retained in another party country in breach of a parent’s custodial rights, shall be promptly returned to the country of habitual residence. It also helps parents exercise overseas visitation rights. However, there have been some problems with the operation of the Convention arising from lack of cooperation and communication between international authorities and courts, and lack of uniformity in the interpretation of its provisions.8

The Child Protection Convention deals with international family law or child protection matters and applies to children from birth to 18 years of age (Article 2). It establishes rules to be applied to resolve actual or potential conflicts of jurisdiction for the protection of children across international borders.

Courts have, over the years, developed a number of quite complex ‘conflict of law’ rules to deal with questions about what country has jurisdiction over an international dispute

5 Commonwealth Parliament, Senate Legal and Constitutional Legislation Committee,

Consideration of Legislation Referred to the Committee – Provisions of the Family Amendment (Child Protection Convention) Bill 2002, May 2002, (Senate Committee Report), pp 3-4.

6 The Convention on Intercountry Adoption was implemented in Queensland by the Adoption of Children Hague Convention on Intercountry Adoption) Amendment Act 1998 and is dealt with in a Queensland Parliamentary Library Legislation Note by K A Collins, No 10, Sept 1998.

7 P Nygh, ‘Cases and Comments – Review of the Hague Convention on the Civil Aspects of Child Abduction’, Australian Journal of Family Law, vol 16, 2000, pp 67-76, p 67.

8 P Nygh, 'Review of the Hague Convention on the Civil Aspects of Child Abduction’.


and what law should be applied. The Child Protection Convention seeks to codify the rules for adoption by signatory countries.

The Child Protection Convention updates the Convention on the Powers of Authorities and the Law Applicable in Respect of the Protection of Minors 1961 which was found to have a number of deficiencies. In essence, it was unable to deal with conflicts of jurisdiction for the protection of minors. The country of nationality was given predominance in cases of conflict so there were occasions when authorities in the place of habitual residence, with greater ability to assess the needs of the child, were hesitant about accepting decisions of the country of nationality. Other problems were created by the frequent situation where a child had dual nationality. The difficulties were compounded by lack of cooperation between the parties and absence of enforcement mechanisms.9

3.2 OVERVIEW OF THE CHILD PROTECTION CONVENTION

The Child Protection Convention was developed by experts from 48 countries at the Hague Conference on Private International Law. Australia sent a delegation to The Hague which was involved in drafting the Convention. An officer from the Queensland Department of Families represented the Australian states and territories.10

The Preamble to the Child Protection Convention states that the best interest of the child is to be the primary consideration in making decisions. The objects of the Convention are as follows –

• to determine which country’s authorities have jurisdiction to take protection measures in relation to a child or the child’s property;

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

• to determine the law applicable to parental responsibility;

• to provide for the recognition and enforcement of protection measures in all contracting States;

• to establish such cooperation between authorities as may be necessary to achieve the purposes of the Convention (Article 1).

9 Senate Committee Report, p 3.

10 Hon J C Spence MP, Second Reading Speech, Child Protection (International Measures) Bill 2003 (Qld), p 2549.


The Preamble acknowledges its complementarity with the United Nations Convention on the Rights of the Child of 20 November 1989.

The notion of ‘habitual residence’ is a central feature of the Convention and goes to the heart of jurisdiction by acknowledging the principle that, generally, the country where a child habitually resides should continue to have responsibility for making decisions. Under the Convention, the country of habitual residence can seek the assistance of another Convention country where a child is present to take measures to care for a child in need of protection. There is no definition of the concept in either the Queensland Bill or in the Convention. The term has become well accepted from situations and cases under the Child Abduction Convention. It is regarded as a flexible concept and as not lending itself to needing exhaustive definition. Establishing the place of habitual residence is a question of fact in all of the circumstances.11 Relevant factors would include intention of the parents and length of time the child has resided in the country.

The underlying rule of the Convention is that a country of the child’s habitual residence keeps its jurisdiction over the child’s person or property. If there is a change of habitual residence, a change of jurisdiction follows (Article 3).

That is, however, subject to provisions that apply where the change in habitual residence has been caused by an abduction of the child or wrongful retention of the child outside that jurisdiction. In such situations, the country of habitual residence retains jurisdiction until either the person exercising custody rights over the child consents to the removal or retention; or the child has resided in the new country for at least 12 months and no application for return has been made, and the child has settled into the new environment (Article 7).

The Child Protection Convention continues the work of the Hague Conference on Private International Law in the international protection of children and facilitates the working of the two aforementioned Conventions. For example, the Convention will affect applications for the return of abducted children under the Convention on Child Abduction by providing for authorities in the country of habitual residence of the abducted child to retain jurisdiction over the child’s welfare until specified changes in circumstances (see Article 7 discussed above) have occurred.

11 Senate Committee Report, pp 17-18, considering a Commonwealth Attorney-General’s

Department submission.


3.3 REASONS FOR IMPLEMENTING THE CHILD PROTECTION CONVENTION

There have been situations where authorities in one country may take no action believing that the authorities in another country have done so or have responsibility over the child.

The following case scenarios that have created difficulties for child protection authorities underlie the need for implementing the Child Protection Convention.12

1. An Australian woman with 2 children married an American man in Australia and they all moved to the USA. Following allegations of child abuse against the woman’s husband, the children were taken into care by the US child protection authorities. The woman separated from the man and came back to Australia. She then sought the assistance of the Queensland Department of Families to have her children returned to her in Australia.

Protracted and complicated negotiations between the Queensland Department and the relevant US child protection authority ensued because there were no established cooperative arrangements between Australia and the USA to enable transfer of responsibility for the children; there was difficulty in finding the appropriate officer in the US agency with authority to deal with the matter; and there were problems in satisfying the US agency that the proposed care arrangements in Australia were appropriate and that the Queensland Department would take immediate and ongoing steps to care and protect the children in Australia. Ultimately, the matter was resolved in negotiations between a US judge and the Queensland Department and the children were brought back to Australia and placed in foster care under the guardianship of the Department, with the mother being allowed access until she obtained supervised custody.

2. A worrying example provided by the New Zealand Ministry of Justice was of a mother in the United Kingdom being imprisoned for child abuse. On release, her visa to enter New Zealand was about to expire. She applied to a UK court for an early discharge of care and protection orders which was granted and she went back to New Zealand with the children. However, the New Zealand child protection authorities were not advised by the UK court of the serious concerns that were held by the UK authorities for the children’s welfare.

3. Another disturbing case was of a US mother travelling to New Zealand and abandoning her child there. Child protection authorities in New Zealand had difficulty

12 Taken from the Commonwealth/State Working Group, Hague Convention on the Protection of

Children - Proposed Amendments to Commonwealth, State and Territory Laws, Issues Paper, August 1998, para 3.3.


obtaining assistance from US authorities to return the child to the USA as there were no formal protocols in place to do so.

4. A man living in Australia travelled to South America, abducted his child, and returned to Australia. The South American country issued a warrant but the man and child could not be found. Allegations by the child of abuse by the father were reported to Australian police and child protection authorities took her into care. The child was placed in foster care but asked if she could go back to South America. The father did not want the child to go back there and alleged that the mother in South America was unfit and had abused the child. Inquiries were made though unofficial channels and it was found that the allegations were without substance and the child was returned to her mother.

Some categories of cases in the child protection area that have international features that could be dealt with under the Convention have been identified as –

• overseas authorities making requests to transfer child protection measures for children immigrating to Australia;

• cases in which children subject to foreign protection measures are brought to Australia without notice to Australian authorities;

• cases in which care proceedings are on foot in Australia but the child is taken to another country before they are concluded;

• overseas authorities asking Australian authorities to check on the welfare of a child visiting Australia on an access visit and provide a report.13

3.4 SCOPE OF THE CHILD PROTECTION CONVENTION

The matters which the Child Protection Convention applies are listed in Article 3 –

• aspects of parental responsibility;

• rights of custody and access; guardianship and curatorship;

• the designation and functions of persons or bodies having charge of the child’s person or property;

• placement of a child in foster care, institutional care etc.;

13 Examples provided by the NSW Department of Community Services to the Australian delegation

to the Special Commission involved in drafting the Child Protection Convention.


• supervision by a public authority of the care of a child; and

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

The matters to which Convention do not apply are set out in Article 4. It does not apply to the establishment or contesting of a parent-child relationship; adoption decisions; names of the child; emancipation; maintenance obligations; trusts or succession; social security; public measures of education or health; penal offences; or decisions about rights of asylum and immigration.

4 IMPLEMENTATION THROUGH LEGISLATION

The Australian delegation to the Hague Commission considered that the benefits of ratifying the Child Protection Convention could be achieved without undermining the operation of existing family and child protection laws in Australia.14

In early 2002, the Child Protection Convention was considered by the Commonwealth Parliament’s Joint Standing Committee on Treaties. Following an inquiry in May 2002, the Committee tabled its Report in June 2002 recommending ratification.15

Consultation on ratification of the Child Protection Convention occurred through meetings of the Standing Committee of Attorneys-General and the Community Services Ministers Council.

In July 1997, a Working Group of State and Commonwealth officers (including an officer from the Queensland Department of Families) was established to consider and report on the implementation of the Convention in Australia. Two Issues Papers (Hague Convention on the Protection of Children – Proposed Amendments to State and Territory Laws (August 1998) and Hague Convention on the Protection of Children – Proposed Amendments to Family Law Legislation (September 1998)) were provided to key organisations in the areas of child protection, children’s property, and family law. This culminated, in April 1999, in the Hague Convention on the Protection of Children - Proposed Amendments to Commonwealth, State and Territory Laws: Report of the Commonwealth/State Working Group (the Working Group Report).16 The main recommendation was that Australia ratify the Child Protection Convention

14 Report of the Australian Delegation to the Special Commission – Hague Convention on the

Protection of Children, January 1997, cited in Working Group Report, para 3.6.

15 Commonwealth Parliament, House of Representatives, Joint Standing Committee on Treaties, Report 46, June 2002, Ch 10.

16.http://www.law.gov.au/agd/Civil_Justice/International_Law/int_judicial_asst/international_child_custody/HagueCPCReportofCwlthStateworkingGroupApril1999.html

http://www.law.gov.au/agd/Civil_Justice/International_Law/int_judicial_asst/international_child_custody/H


and that this be facilitated by the necessary amendments being made to Commonwealth, State and Territory legislation.17 The Commonwealth is responsible for implementing the family law provisions of the Convention while the states and territories must develop legislation on the child protection aspects.

The Working Group Report identified a number of benefits in ratifying the Child Protection Convention. Insofar as it relates to child protection, those include –

• more formalised cooperation between Australian and overseas authorities in relation to protecting an Australian child abroad; or a child returning overseas who is subject to Australian protective measures;

• jurisdictional certainty by clarifying responsibilities of authorities of different countries with concurrent jurisdiction over a matter through internationally agreed rules about which authority has jurisdiction in relation to a child;

• overseas recognition of child protection measures.18

The Working Group Report noted that there should be no significant resource implications for state authorities. Authorities already involved in child protection would act as State Central Authorities which would directly communicate with designated overseas State Central Authorities, thereby overcoming delays and confusion currently being experienced in the use of diplomatic channels to identify what authorities are responsible for child protection matters in other countries. Enhanced cooperation under the Convention may also lead to cost savings. Ratification of the Convention will also enable entry of contact officers of state and territory child protection agencies onto a list maintained by the Permanent Bureau of the Hague Conference, overcoming the current problems of attempting to establish bona fides and status of overseas officers.19

In 1999, state and territory Ministers agreed to ratification and, since that time, have been cooperating in developing legislation to implement the child protection provisions of the Convention in each jurisdiction. It was proposed that each state and territory amend its laws in accordance with an agreed model that related to child protection and associated matters. Queensland developed the model legislation to be adopted by other states and territories in substantially similar, but not necessarily identical, legislation recognising that

17 Drafting Instructions for legislation were included in Attachment A to the Report based on a

model developed by the Working Group.

18 Working Group Report, para 3.3. Para 3.5 outlines benefits in the family law area and para 3.6 sets out benefits in the area of children’s property.

19 Working Group Report, paras 4.1-4.6.


modifications may be necessary to ensure compatibility with other legislation operating within each state and territory.20

The Working Group proposed that amendments to state and territory child protection laws to implement the Child Protection Convention would address –

• definition of measures of protection;

• jurisdiction of courts and child protection authorities;

• the law to be applied by courts and authorities in exercising their jurisdiction;

• the recognition and enforcement abroad of Australian measures and of foreign measures in Australia; and

• arrangements for co-operation between Australian and overseas authorities.

The Convention entered into force generally on 1 January 2002. The Commonwealth Government has lodged Australia’s instrument of ratification with the depository at The Hague which will allow the Child Protection Convention to come into force in Australia on 1 August 2003.

5 IMPLEMENTING THE CHILD PROTECTION CONVENTION UNDER THE CHILD PROTECTION (INTERNATIONAL MEASURES) BILL 2002 (QLD)

The Child Protection (International Measures) Bill 2003 (Qld) (the Bill) is based on the model legislation developed by Queensland for the Parliamentary Counsel’s Committee at the request of the Community Services Ministers’ Conference and the Standing Committee of Attorneys-General. The model legislation was the subject of consultation between states and territories and with relevant agencies for over five years. The Bill mirrors that model legislation.21 The Child Protection Convention is Schedule 1 of the Bill.

Note that the Bill will not apply to a matter set out in Article 4 of the Convention (see above). Nor will it apply to matters dealt with under reciprocal legislative arrangements with New Zealand (apart from where an inconsistency arises in which case the Bill prevails): cl 4.

20 Child Protection (International Measures) Bill 2003 (Qld), Explanatory Notes, p 3.

21 Hon J C Spence MP, Second Reading Speech, p 2549.


It is not anticipated that there will be significant financial implications from the implementation of the Convention nor a substantial rise in the number of cases being dealt with by child protection authorities.

5.1 OBJECTS

The main purposes of the new legislation are to recognise –

• the importance of international cooperation for protecting children;

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

• that a child’s best interests are a primary consideration in relation to a measure for protecting the child’s person or property: cl 3.

5.2 SOME KEY DEFINITIONS

There is a Dictionary provided in Schedule 4 of the Bill but, unless a contrary intention appears, the terms used reflect those in the Convention: cl 6. Some key terms will be explained at this point to assist further discussion.

When the Bill refers to taking ‘measures’, it refers to measures directed at protecting the person of a child or their property. The range of measures is set out in Article 3 of the Convention (see above). Examples are orders about placement of children in care; supervision of a child; who has the right to take a child overseas; or the powers of administration of a child’s property.

‘Child protection’ tends to have the same meaning as under Australian laws. Thus, a child protection order may include measures such as guardianship over a child by the chief executive of the Department of Families, or protective supervision by the Department.

An important feature of the Convention is that it seeks to overcome past difficulties experienced by child protection authorities in different countries identifying appropriate counterparts when attempting to communicate about child protection matters. Each Convention country will designate an authority to be a ‘central authority’ to facilitate international communications and cooperation. For Queensland, the Department of Families (the Department) is the central authority. A ‘competent authority’ is any of the following: a court, child protection agency, public guardian, public trustee, guardianship board or other person or body with authority over measures for the protection of a child


or their property in Australia, a Convention country (ie a party to the Convention) or a non-Convention country.

A reference to a ‘Queensland authority’ in the Bill means a Queensland court (which also includes the Children Service Tribunal) or the Department where personal child protection measures are involved; or a Queensland court or the public trustee in the context of property protection measures.

5.3 JURISDICTION OF COURTS AND CHILD PROTECTION AUTHORITIES

Implementation of the Child Protection Convention requires that amendments be made to enable courts and child protection authorities to follow new jurisdictional rules in child protection matters involving international aspects. In practice, Queensland authorities would consult with the central authority of the child’s country of habitual residence, using the cooperation provisions of Part 6 of the Bill, about a situation involving a child and determine the most appropriate course of action.

It should be noted that Australian courts already apply what is known as ‘conflict of law’ rules to determine which country has jurisdiction over proceedings with an international dimension. The Convention reflects these common law rules to a large degree but has the advantage of codifying them to provide certainty.

5.3.1 Protecting the Person of the Child

Under present law, the ability of an authority to exercise jurisdiction over a child depends on the child being present in the State although State courts or authorities could attempt to exercise jurisdiction in relation to a child in another country who is ordinarily resident in that State or is an Australian citizen.22 But what happens if a Queensland court’s decision is not recognised by the child protection authorities in the country where the child is situated? What if the Queensland authority does nothing because it assumes that the authorities in the other country have acted? Indeed, it appears that many countries do not recognise Australian measures but may cooperate with Australian authorities to take action to protect a child.23 The lack of jurisdictional clarity and certainty is hardly in the best interests of the child concerned.

22 Hague Convention on the Protection of Children – Proposed Amendments to Commonwealth,

State and Territory Laws, Issues Paper, para 5.5-5.6, citing, for example, Nygh, Conflict of Laws in Australia, (6th ed), 1995, p 530.

23 Proposed Amendments to Commonwealth, State and Territory Laws, Issues Paper, para 5.5.


The Articles relating to jurisdictional matters in Chapter II (Articles 5-14) of the Child Protection Convention clarify responsibilities and overcome possible jurisdictional conflicts between authorities of different countries. The Convention rules are, however, reasonably consistent with current practice in deciding whether or not to exercise jurisdiction in a particular case.24

Jurisdiction is centralised in the authorities of the country of the child’s ‘habitual residence’. The paramountcy given to the jurisdiction of the place of habitual residence recognises that the authorities of that place are closer to the child and usually better able to assess their situation. Such a view has been taken by successive Australian Governments, Australian courts, and by other common law countries.

Part 2 of the Bill seeks to implement the jurisdictional provisions of the Convention regarding measures to protect the person of a child. Clause 8 makes it clear that the provisions apply only in the event of jurisdictional conflict between a Queensland court or the Department and authorities of another country rather than to any domestic jurisdictional conflict.

Essentially, the situation will be that a Queensland authority may exercise jurisdiction for a personal protection measure only in relation to a child who is present and habitually resident in Australia: cl 9.

The Convention does, however, allow for assumption of jurisdiction in other situations including where, in the case of a child habitually resident in another country becoming temporarily resident in Australia, Australian authorities have to take urgent action or institute provisional measures. An example might be that a child is abused or abandoned by their parent while on a visit to Australia. The provisions also recognise that an Australian authority would generally want to take measures in relation to a child with habitual residence in Australia present in another country only if the child is temporarily absent (eg on a holiday overseas) or has been abducted or prevented from returning. In non-urgent cases, it would be appropriate for Australian authorities to agree to the overseas authorities assuming jurisdiction.25

To implement these provisions (see Articles 5-14, 47) of the Convention, clause 9 of the Bill goes on to provide for supplementary situations where the Queensland authority can assume jurisdiction. Jurisdiction will be able to be exercised by a Queensland authority only in the following instances –




• in relation to a child who is present in Australia but habitually resident in a Convention country (eg the child is holidaying in Australia) if –

• it is a matter of urgency (which will lapse when a foreign personal protection measure relating to the child taken in response to the same situation is registered with the Queensland Department (see cl 14 and Article 11));26 or

• if the measure is provisional and limited in territorial effect to Australia and not incompatible with a measure already taken by a Convention country authority under the Convention. The measure lapses once a foreign personal protection measure relating to the child taken in response to the same situation is registered with the Queensland Department; or

• if the child is a refugee (Article 6); or

• a competent authority in the country of habitual residence requests or agrees to the Queensland authority assuming jurisdiction. Note that under cl 12, if a Queensland authority is asked to assume jurisdiction, it may accept or reject the request if it considers it to be in the child’s best interests. Where a Queensland court seeks to assume jurisdiction by asking another Convention country to agree, the court may order the Department to make the request if the court considers that it is better placed than the overseas authority to assess the child’s best interests.

A Queensland authority can also assume jurisdiction in relation to a child present in a Convention country (see cl 9(2)(c)) if –

• the child is habitually resident in Australia;

• the child has been wrongfully removed from Australia or retained in another country. Removal or retention of a child is considered wrongful if in breach of existing custody rights in a person or institution or body. Clause 10 of the Bill implements Article 7 of the Convention. The authorities of the child’s habitual residence keep their jurisdiction over the child until the child obtains habitual residence in another country (under conditions set out in Article 7 discussed earlier). During the time when the Convention country keeps its jurisdiction over the child, the country to where the child has been taken can only take urgent measures that are necessary to protect the child or their property. Thus, a Queensland authority must not exercise jurisdiction except in a case of urgency. These provisions overcome problems such as that which recently arose under the Convention on Child Abduction, where a dispute occurred between the USA

26 If a competent authority in a non-Convention country takes such a measure in response to the

same situation, the Queensland measure lapses once it is recognised under Queensland law or the law of another State: cl 14(2).


and Sweden at a diplomatic level where it was alleged by US authorities that Swedish authorities had withheld a child because the latter took the view that the child had become ‘habitually resident’ after 2 years although the US father had never consented to a change of residence;27

• there is a request or agreement between the Queensland authority and a competent authority in the country of habitual residence or refuge that the Queensland authority assume jurisdiction.

Clause 11 effectively requires a Queensland authority, before assuming jurisdiction over a child in the circumstances outlined in cl 9(2)(b)(iii) to (v) or (c),28 to find out whether an authority in another Convention country is exercising jurisdiction. Article 13 of the Convention states that if a country would have jurisdiction to take measures for protection of the child, it must not do so if corresponding measures have been requested from the authorities of another Convention country having the same jurisdiction. The Queensland Bill does not go as far as Article 13 because, in Australia, child protection proceedings are separate to family law proceedings and there may be difficulties if Queensland authorities were unable to act to protect a child because family law proceedings involving a child are being brought in another country.29

Note that cl 13 provides for situations where, although Queensland authorities may have jurisdiction under the Convention, it is considered that a competent authority of another Convention country should assume jurisdiction for protecting the child because it is better placed to assess the child’s best interests. A Queensland court may order the Department to make the request of that other competent authority and to report to the court about the outcome of such request. In addition, cl 13(4) provides that if the overseas authority asks if it can assume jurisdiction to take a child protection measure, the Queensland court may accept or reject that request.

The remaining situations where jurisdiction can be exercised pursuant to cl 9 are –

• in relation to a child present in Australia who is a refugee child (Article 6);

• in relation to a child present in a non-Convention country if they are habitually resident in Australia or is an Australian citizen; or a child present in Australia but habitually resident in a non-Convention country.

27 P Nygh, p 70.

28 That is, the inquiry requirements will not apply in cases of urgency, provisional measures or where a non-Convention country has concurrent jurisdiction.



In practice, Queensland authorities (generally the Department) would use the cooperation provisions of the Bill and in Chapter V of the Convention to consult with the central authority in the child’s country of habitual residence to inform them of the situation and ask the authority to find a suitable placement for the child to be cared for in the child’s home country. It would also seek agreement from that central authority to apply to the Queensland Children’s Court for a short term child protection order giving the chief executive of the Queensland Department guardianship over the child while in Queensland and while that placement in the home country is being found. Once the child can be placed in care in their own country, the child is returned there and the Queensland order revoked.30

5.3.2 Guardianship of a Child’s Property

A child is able to own property but it will usually be their parents or guardians who are responsible for managing and dealing with it until the child reaches the age of 18. The law enables parents and guardians to receive and recover a child’s property for the benefit of the child. The Public Trustee Act 1978 (Qld), s 58 enables the Public Trustee to be appointed guardian of a child.

An academic expert on private international law commenting to the Commonwealth Attorney-General’s Department about the draft Convention provisions noted that there have been many cases where overseas courts have exercised jurisdiction in conflict with Australian courts. He stated that a foreign guardian might be appointed in the country in which a child is domiciled to exercise property rights in Australia without the need for confirmation by an Australian court. Australian courts can also ignore the foreign guardian and appoint their own.31

Ratification of the Child Protection Convention may require some changes to Australian statute and common law about the rights of guardians over a child’s property. The relevant Convention provisions were drafted with the intention of centralising jurisdiction in the authorities of the country of the child’s habitual residence rather than adopting the traditional concept of jurisdiction being based on presence of the property in the country. To the extent, however, that a child is present in another Convention country, the Convention would enable an Australian authority to exercise jurisdiction to appoint a guardian or seek recognition by another Convention country of an Australian guardianship appointment. Generally speaking, an Australian authority would seek to appoint a guardian in respect of a child’s property in another country only if the child is


31 Proposed Amendments to State and Territory Laws, Issues Paper, para 7.6, quoting Mr P Nygh.


habitually resident in Australia unless there are special reasons (eg urgency, transfer of jurisdiction accepted from another country).32

It appears that the primary benefit of the Convention in relation to a child’s property is that there will be recognition in overseas countries of the authority of the child’s parents as guardians of the property.33

Articles 5 to 14 of the Convention relating to the jurisdiction of authorities to take property protection measures for a child recognise the utility of having precise rules about the designation and the powers of a child’s legal representative to administer the child’s property located in another country, particularly where it is necessary to carry out the settlement of an estate passed to a child. The provisions do not purport to alter traditional conflict of laws rules and relate only to appointment or the determination of the powers of a guardian.34

Part 3 of the Bill implements Articles 5 to 14 of the Child Protection Convention regarding a Queensland court, or the Public Trustee (Queensland authority) taking measures for appointing or deciding the powers of a guardian of a child’s property. Note that the rules will apply only in relation to international conflicts of jurisdiction between a Queensland authority and a competent authority in another country and not to domestic conflict of jurisdiction: cl 15.

Clause 16 sets out when a Queensland authority, which has jurisdiction under Queensland law for a Queensland property protection measure in relation to a child, will have jurisdiction to appoint or decide the powers of a guardian of the child’s property.

The usual situation where jurisdictions may be exercised is in relation to a child who is habitually resident in Australia: cl 16(2). The other situations in which the jurisdiction of the Queensland authority may be exercised are similar to those in cl 9 regarding personal protection measures. Jurisdiction may be exercised by a Queensland authority to appoint or decide the powers of a guardian of relevant property in relation to –

• a child who is habitually resident in a Convention country in designated circumstances. Those are in cases of urgency; or where the protection measure will be provisional and limited; or where the Queensland authority is requested to assume jurisdiction by the country of habitual residence or refuge; or where those countries agree to the Queensland authority assuming jurisdiction. It will also allow for the





exercise of jurisdiction if the child has been wrongfully removed from or retained outside Australia.

• a child present in Australia who is a refugee child;

• a child present in a non-Convention country who is habitually resident in Australia or is an Australian citizen; or present in Australia but habitually resident in a non-Convention country.

Note that cls 17 to 21 reflect cls 10 to 14 relating to jurisdiction to take measures to protect the person of the child. As these provisions have been discussed in that context (see above), they will not be discussed in detail here. The new provisions deal with the following –

• preventing a Queensland authority from exercising jurisdiction where the child has been wrongly removed or retained outside a Convention country and that country keeps jurisdiction under Article 7 of the Convention: cl 17;

• imposing limitations on the exercise of jurisdiction by a Queensland authority (apart from specified situations), where a corresponding measure has been sought from a competent authority in a Convention country which has concurrent jurisdiction arising from Articles 5 to 10 of the Convention. This provision goes further than cl 11 because it actually prevents the exercise of jurisdiction where prior proceedings are pending in a Convention country, thus fully implementing Article 13 of the Convention. Clause 11 requires only that the Department be required to make inquiries of the other country in matters involving protection of the person of the child. The prohibition will not apply if the Convention country has declined jurisdiction does not wish to take any action: cl 18;

• setting out the process for accepting or rejecting requests from another Convention country for a Queensland court or Public Trustee to exercise jurisdiction or where it is seeking the agreement of a Convention country’s authority for it to assume jurisdiction pursuant to cl 16(2)(b)(iv): cl 19;

• setting out the process for a competent authority in another Convention country to assume a transfer of jurisdiction from the Queensland authority where that country’s authority is asked to do so or agrees to the request made by that other authority to do so: cl 20;

• setting out the conditions for when urgent or provisional Queensland property protection measures lapse when a foregoing property protection measure is taken by a competent authority in another Convention country in the exercise of it jurisdiction under the Convention. it also provides for when the same measures are taken in a non-Convention country: cl 21.


5.4 APPLICABLE LAW

Chapter III of the Child Protection Convention deals with the law to be applied by courts and child protection authorities exercising jurisdiction under Ch II of the Convention. The fundamental principle is that when each Convention country is exercising the jurisdiction, the country applies its own domestic laws in deciding on protection measures: Article 15. However, in some situations, they may (but are not required to) exceptionally apply, or take into consideration, the law of another country with which the situation has a substantial connection.

The Commonwealth/State Working Group Report noted that some comments in response to its Issues Paper expressed concerns about Australian authorities applying foreign laws in exercising jurisdiction under the Convention. It was felt that these may not reflect the service infrastructure and social mores in Australia in the same way as Australian laws and legal structures do. However, the Working Group noted that the Convention recognises that domestic law will usually be the applicable law in deciding on protection measures and that the law of another country may (ie it is discretionary) be applied if considered appropriate.35

Part 4 of the Bill deals with the applicable law when a Queensland authority is exercising jurisdiction to take a protection measure in relation to a child or a child’s property. It implements Article 15 of the Convention.

Essentially, the Queensland authority must apply Queensland law in exercising jurisdiction rather than choice of law rules. However, it may, in exceptional circumstances, apply or take into account the law of another country with which the child or child’s property is substantially connected: cl 22. ‘Choice of law rules’ is a concept of private international law. It basically arises once the issue about which country has jurisdiction has been resolved and it must be decided what law the court, tribunal etc. must apply to determine a matter by connecting an issue with a particular system of law.36 Various common law rules have been developed about which law to apply in a range of different contexts. For example, in relation to property, the applicable law tends to be the law of the place in which the property is located.

Note that Article 22 of the Convention provides that the application of the law designated by the Convention can be refused only if that application would be manifestly contrary to public policy, taking into account the best interests of the child.

35 Working Group Report, para 5.18.

36 M Tilbury and G Davis , Conflict of Laws in Australia, Oxford University Press, 2002, p 258.


5.5 RECOGNITION AND ENFORCEMENT

At present, state and territory laws do not provide for reciprocal recognition and enforcement of personal and property protection measures made in other countries. Legislative provisions are necessary to implement Chapter IV of the Child Protection Convention about recognition and enforcement to enable documentation containing Queensland personal and property protection measures to be sent to other Convention countries for their recognition and enforcement in the recipient country. Conversely, provision must be made for other country’s measures to be recognised and enforced in Queensland. Some measures under the Convention (eg orders relating to appointment of guardians for a child’s property) would be registered without inquiry into the merits of why the other country took the measure.

The Explanatory Notes to the Queensland Bill state that recognition and enforcement measures will have more application to foreign parenting orders with the Family Court of Australia and it is not anticipated that these provisions will be used for child protection matters, the latter being dealt with via the cooperation provisions in Ch V of the Convention. The reason is that child protection orders will often involve giving parental responsibility to a child protection authority so if a child is subject to a foreign order giving the foreign agency such responsibility, it would be impractical to attempt to recognise and enforce that order in Queensland when the foreign agency is not present here. Parenting orders, however, tend to give responsibility to a parent who would be physically present in the same place as that to which the child is brought.37 It is understood that the Australian delegation to the Hague Special Commission adopted this stance when the Convention was being drafted and its views were not opposed.38

The Working Group Report, adopting the approach of the delegation, proposed that any legislation would give preference to cooperation provisions before recognition and enforcement was considered. Such an approach was seen as giving child protection authorities the discretion to be able to act in what they regard as being in the best interests of the child and apply their own legislative tests about what intervention is necessary.39

The type of scenario envisaged is where a child in a Convention country has had a child protection order granting guardianship of the child to a child protection agency in that country. The child comes to Australia on a family visit and a situation arises where the Queensland Department considers that some action needs to be taken to protect the child. Registration of that foreign order would not assist in protecting the child because

37 Child Protection (International Measures) Bill 2003 (Qld), Explanatory Notes, pp 23-24.




the foreign agency with guardianship rights is not present in Queensland. However, use of the cooperative measures may provide some solution. The Queensland Department would consult with that overseas agency to work out the best way of meeting the needs of the child while they are in Queensland. That may result in the overseas agency asking the Queensland Department to exercise its jurisdiction under Ch II of the Convention to protect the child while in Queensland.

Part 5 of the Bill deals with the recognition of foreign personal and property protection measures in relation to a child and their enforcement in Queensland. It sets out a scheme for recognising, by registering, foreign protection measures.

If the Queensland Department is given a foreign personal protection measure relating to a child in a document and is requested to take action under the Convention, it is required, after consulting with the competent authority of that overseas country where the measure was taken, to do one of a number of things set out in cl 23(2) –

• give the foreign measure to a registrar of a Queensland court for recognition by registration under cl 25 of the Bill;

• give the foreign measure and the request to take action to the Commonwealth central authority;

• exercise the Department’s jurisdiction to make a personal protection order under Part 2 of the Bill;

• apply to a Queensland court for it to exercise Part 2 jurisdiction or for it to decide if it should or should not refuse registration of the foreign measure;

• agree with the overseas competent authority that the Department will not do anything.40

However, direct recognition and enforcement of foreign personal protection orders may not always be appropriate or desirable on policy or practical grounds. Regard needs to be had to the obligation of Australian authorities to act in what they consider to be in the best interests of the child. There may also be differences in legislative tests between Australia and other countries that trigger intervention to protect a child. There may also be differences between the resources available.41 Clause 23(3) sets out the grounds on which a Queensland court may refuse to recognise a foreign personal protection measure (which replicate Article 23 grounds) –

40 The provisions implement Articles 23, 26, 15 and 24 of the Child Protection Convention.



• where the Convention country’s competent authority did not have jurisdiction to take the measure;

• where, in taking the measure (if the matter was not urgent), that competent authority acted contrary to fundamental principles of procedure under Queensland law by not providing an opportunity to the child or person with parental responsibility to be heard;

• where recognition of the measure is contrary to Queensland public policy having regard to the child’s best interests;

• where, if the measure were recognised, it could not be appropriately enforced;

• where the measure is incompatible with a later measure taken by a non-Convention country in which the child habitually resides and it could not be refused recognition on other grounds;

• where the measure places the child in foster or institutional care in Queensland and the competent authority did not obtain the Queensland Department’s prior consent to that measure.

An interested person may apply to be joined as a party to a proceeding where the Department applies to the court to exercise its own jurisdiction or to decide whether or not to refuse recognition.

Note that if the foreign measure that the Department gives to the court for recognition by registration is one that authorises the performance of a medical procedure or treatment on the child that Queensland law would not permit a parent to consent to (eg sterilisation), the measure will have to be accompanied by a Family Court declaration that its recognition is not contrary to public policy having regard to the child’s best interests: cl 23(6).

Clause 26 deals with recognition of foreign property protection measures. Where the Department is given such a measure, it will have to assess whether it includes measures to protect the person of the child and, if so, to deal with it in the way set out in cl 23 (see above). If it does not, then it is merely given to the court registrar for recognition by registration.

Once the court registrar has the foreign property protection measure or a foreign personal protection measure that does not fall into cl 23(3) (grounds of refusal of recognition), cl 25 requires the registrar to register the measure. It then has the same effect and force as a Queensland measure and prevails over any earlier measure to the extent of any inconsistency. It can also be enforced through legal proceedings. The Explanatory Notes for the clause point out that the system of recognition of a property protection measure will differ from that for a personal protection measure because the former is


more likely to have been taken by a party other than a competent authority and it is, thus, harder for the Department to find out about its background than for a personal protection order where the overseas competent authority should have knowledge of its background.42

Note that cl 25 has the effect of giving the foreign measure the status of a Queensland measure such that its enforcement will take place in accordance with Queensland law.

An interested person will be able to apply to a Queensland court for cancellation of registration of a foreign measure which the court may agree to on any of the grounds listed in cl 26. A number of the grounds are the same as those for refusing recognition of the measure in the first place.

Clause 27 makes provision for evidentiary and other issues for court proceedings. Note that where a Queensland court is dealing with the matter of whether to recognise a foreign measure (cl 23) or cancellation of it (cl 26), the court is bound by findings of fact on which the authority in the Convention country based its jurisdiction (implementing Article 25 of the Convention). The merits of the measure are not to be reviewed unless the court is determining whether or not to cancel it.

The new laws will also enable the Department to give a Queensland personal or property protection measure relating to a child to a central authority of another Convention country for recognition and enforcement. The Department must first consult with the other authority before giving it a personal protection measure: cl 28.

5.6 COOPERATION

Chapter V of the Child Protection Convention deals with cooperation between Convention countries in performing their obligations and duties under the Convention. That cooperation would generally be in the form of information exchanges and the investigation of allegations of abuse and consultation between authorities regarding protective measures.43 For example, Article 31 provides that a central authority must take appropriate steps, if requested by the central authority of another Convention country, to locate a child where it appears that the child is in need of protection within the territory of the requested country.

As well as obliging each country to designate a central authority which cooperate with each other and promote such cooperation amongst competent authorities in their own




countries, Articles 29 to 56 set out a number of measures to facilitate collaboration and mutual assistance between countries where a child needing protection is involved. Part 6 of the Bill implements the cooperation provisions of the Convention and deals with other matters. Clause 29 designates the Department of Families as Queensland’s central authority.

The Explanatory Notes for the Bill set out a number of examples where the cooperation provisions would be useful.44 For instance, a child from the UK may be with his British parents in Queensland on the father’s work visa. Allegations of abuse may come to the notice of the Department and the child is placed in the Department’s care under a child protection order. The parents then decide to move to Spain for work purposes. Once the father’s work visa expires, the child cannot legally remain in Australia. The Department could then use the cooperation provisions of the Bill and the Convention to contact the designated central and competent authorities in Spain to appraise them of the situation and to request that the Spanish authorities take action necessary to protect the child when the child arrives in Spain.

A reverse instance is where a Queensland child may be subject to a child protection order giving guardianship to the chief executive of the Department. It might be seen to be beneficial to the child’s interest to visit family in another country. Under the cooperation provisions, the Department could contact the central authority in the country where the child will be temporarily present on his or her visit and seek that authority’s cooperation to take action to protect and supervise the child while visiting the country. These measures have the advantage of enabling a child to visit relatives in another country when it may not have otherwise been safe for them to do so.45

Clause 30 sets out the Department’s functions including cooperating with central authorities of other Convention countries. The functions stipulated reflect the relevant Articles in the Convention. Those include matters such as –

• finding solutions for the protection of particular children or their property;

• assisting in implementing measures directed at protecting children or their property and to consider taking Queensland measures at the request or invitation of the authority of anther country;

• considering the taking or applying for a Queensland measure relating to a child at the request or invitation of the authority of another country;

• exchanging information on laws and services, subject to confidentiality requirements;

44 Child Protection (International Measures) Bill 2003 (Qld), Explanatory Notes, pp 27-28.



• helping to discover the whereabouts of a child where it appears the child may be present in Queensland and in need of protection within Queensland;

• providing reports on the situation of a child where a request is received from another country with which a child has substantial connection;

• applying to the court for orders in response to requests from authorities in other Convention countries to transfer or receive jurisdiction; or to take certain measures to protect the child or child’s property;

• engaging in consultation with another Convention country about the placement of a child in foster or institutional care in Queensland. Note that under cl 30(2), the Department must take the child’s best interests into account in deciding whether or not to consent. Similarly (see cl 31), a Queensland authority may consult with, and must obtain the consent of, a competent authority in a Convention country before placing a child in care in that country.

Note that if sharing information would not be consistent with the Bill or the Convention then this should not occur. An example would be if providing information might endanger a child’s safety or life or that of the child’s family or child’s property.

Other cooperation measures applying to Queensland authorities in general are –

• informing authorities in a country to where a child has gone about information the Queensland authority has about any serious danger to which a child may be exposed (eg abuse or neglect by its parents). It would then be a matter for the authorities in the country where the child is present to consider taking measures to protect the child: cl 32;

• cooperating with another country abut the suitability of a parent having contact with a child. Clause 33 sets out the evidence and other requirements to which the Queensland court must adhere in proceedings about such matters.

6 COMMONWEALTH FAMILY LAW AMENDMENT (CHILD PROTECTION CONVENTION) BILL 2002

The Commonwealth Family Law Amendment (Child Protection Convention) Act 2002 amended the Family Law Act 1975 to enable Australia to ratify the Child Protection Convention. A major benefit of the new measures is the removal of


uncertainty regarding jurisdiction and unpredictability in relation to the enforcement of orders overseas.46 The Act was assented to on 3 September 2002.

The Act sets out detailed rules for resolving family law conflicts in jurisdiction between Australian and courts in other countries, an area of contention for many years. Sometimes there have been conflicting parenting orders made by two countries in relation to the same child. The Act implements the Convention’s jurisdictional provisions by providing that the courts in the country where the child is habitually resident have jurisdiction over the relevant matter.

In relation to what law should be applied in resolving disputes, it is provided that the law regarding matters such as parental responsibility under the Family Law Act are automatically recognised in other Convention countries. An example is that while unmarried fathers in Australia have the same parental responsibilities in relation to a child as a married father, this is not the case in some countries such as New Zealand and the United Kingdom. Thus, an unmarried Australian father, who would otherwise find that he has no rights of custody in those places and would have had to litigate to assert his rights, can now have his parental responsibilities automatically recognised in those countries.47

Prior to the commencement of the new legislation, unless there was a reciprocal arrangement with another country, it was possible for an Australian parent to move to another country, ignore family law orders made by the Australian courts, and bring an action in the courts of that other country against the parent back in Australia. Under the Convention, the Australian parent can send an Australian court’s parenting order to another Convention country for recognition and enforcement.48

The Act implements also the range of procedures in the Convention to facilitate cooperation between courts and child protection agencies in different countries.

46 Hon D Williams MP, Commonwealth Attorney-General, Family Law Amendment (Child

Protection Convention) Bill 2002 (Cth), Second Reading Speech, House of Representatives Hansard , 20 September 2001, pp 31082-31084, p 31083.

47 Hon D Williams MP, Second Reading Speech, 20 September 2001, p 31083.

48 Hon D Williams MP, Second Reading Speech, 20 September 2001, p 31083.


© State of Queensland (Department of the Premier and Cabinet) 1997, this version copyright 2002

APPENDIX A – MINISTERIAL MEDIA STATEMENT

Hon Judy Spence MP, Minister for Families and Minister for Aboriginal and Torres Strait Islander Policy, Minister for Disability Services and Minister for Seniors

4 June 2003

Beattie Government to implement Hague Child Protection Convention

The Minister for Families Judy Spence today introduced into State Parliament new legislation to implement the Hague Child Protection Convention, which provides for international cooperation between Convention countries in the interests of protecting children.

Ms Spence said The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children would come into operation in Australia on 1st August this year and ensure children were protected when they move or travel overseas and child protection concerns arise or there are parenting orders.

"The Convention will eliminate potential conflicts of jurisdiction and ensure cooperation between child protection authorities in different countries," she said.

"It is particularly important at a time when the movement of children and their families across international borders is increasing due to the globalisation of the world economy, ease of international travel, an increase in cross-cultural marriages and displacement due to war and natural disasters."

Ms Spence said the Child Protection (International Measures) Bill 2003 would implement the Convention and ensure that parents know which country's courts will make decisions about their children and child protection authorities know which authority has jurisdiction in relation to a child.

"Legislation to implement the Convention needs to be enacted by the Commonwealth and all Australian States and Territories," she said.

"The Commonwealth has enacted their legislation (as amendments to the Family Law Act 1975) and will make regulations to implement the family law aspects of the Convention.

"States and Territories must enact legislation to implement the child protection aspects of the Convention and I am pleased that model


© State of Queensland (Department of the Premier and Cabinet) 1997, this version copyright 2002

legislation has been developed by Queensland for the Parliamentary Counsels' Committee.

"The Queensland Department of Families has been actively involved in negotiating the terms of the Convention, representing the States and Territories as part of the Australian delegation to The Hague and instructing the Office of the Queensland Parliamentary Counsel in the preparation of the model Bill."

Ms Spence said her department currently dealt with approximately five to ten child protection cases a year with an international aspect, but the number of cases was increasing and that trend was expected to continue.

"These cases are often complex and time consuming and can be costly to resolve," she said.

"By designating the Department of Families as the state central authority for the Child Protection Convention, the Bill establishes a mechanism by which child protection authorities can communicate directly about the protection and welfare of children without needing to use diplomatic channels."

Ms Spence said the Bill also made minor amendments to the Child Protection Act 1999 and the Juvenile Justice Act 1992.

Media Contact: 3224 7081

RECENT PARLIAMENTARY LIBRARY RESEARCH PUBLICATIONS 2003 RESEARCH BRIEFS RBR2003/01 Reform of Negligence Law – The Queensland Response: The draft Civil Liability Bill 2002 Feb 2003

RBR2003/02 Protecting Transgender Rights under Queensland’s Discrimination Law Amendment Act 2002 Feb 2003

RBR2003/03 Legal Profession Reform in Queensland: Multi-Disciplinary Practices (MDPs) Feb 2003

RBR2003/04 The Coroners Bill 2002 (Qld): Highlighting the important role of coroners in accident prevention

Feb 2003

RBR2003/05 Protecting Workers With Family Responsibilities under Queensland’s Discrimination Law Amendment Act 2002

Feb 2003

RBR2003/06 Land Clearing Offences and the Natural Resources and Other Legislation Amendment Bill 2003 (Qld)

Mar 2003

RBR2003/07 The Research Involving Human Embryos and Prohibition of Human Cloning Bill 2003 Mar 2003

RBR2003/08 The Sports Drug Testing Bill 2003 (Qld) Mar 2003

RBR2003/09 Abortion Law Reform: An Overview of Current Issues April 2003

RBR2003/10 Enhancing Community Safety: The Corrective Services Amendment Bill 2003 (Qld) April 2003

RBR2003/11 Defamation and the Internet: A New Challenge May 2003

RBR2003/12 New Rules for Fitness Services: The Fair Trading (Code of Practice - Fitness Industry) Regulation 2003

May 2003

RBR2003/13 Change of Name Provisions under the Births, Deaths and Marriages Registration Bill 2003 May 2003

RBR2003/14 Taking Children’s Evidence Using Technology–Evidence (Protection of Children) Amendment Bill 2003 (Qld)

May 2003

RBR2003/15 Protecting Breastfeeding Mothers under Queensland’s Discrimination Law Amendment Act 2002

Aug 2003

RBR2003/16 Regulation of Inbound Tourism Operators – Tourism Services Bill 2003 (Qld) Aug 2003

RBR2003/17 Quality Assurance for Higher Education – The Higher Education (General Provisions) Bill 2003 (Qld)

Aug 2003

RBR2003/18 The Child Protection (International Measures) Bill 2003 (Qld) Aug 2003

A Subject Index to Research Publications is available at the following site: http://www.parliament.qld.gov.au/Parlib/Publications/bysubject.htm Parliamentary Library - Research Publications & Resources Telephone (07) 3406 7108 Orders may be sent to Carissa Griggs, [email protected]

Research Papers are available as PDF files: • to members of the general public the full text of Research briefs is now available on the parliamentary

web site, URL, http://www.parliament.qld.gov.au/Parlib/Publications/publications.htm

• http://www.parliament.qld.gov.au/Library/Query.exe – e-Documents & e-Articles – Quick display of Library’s research publications

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This Publication:

RBR 2003/18 The Child Protection (International Measures) Bill 2003 (Qld) (QPL August 2003)

Related Publications:

LB 2/99 In the Best Interests of the Child: The Child Protection Bill 1998 (QPL March 1999)

LN 10/98 Adoption of Children Hague Convention on Intercountry Adoption) Amendment Bill 1998 (QPL September 1998)