International child protection
Australia is party to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, which entered into force for Australia on 1 August 2003 (the ‘Protection Convention’).
The Australian Goverment Attorney-General's Department is the designated Commonwealth Central Authority under the Protection Convention.
It must be noted that given the limited number of signatories to the Protection Convention, it has limited application in a practical sense. However, the Protection Convention provides a foundation for future international development in the area of child protection as more countries become signatories.
- Purpose
- The Best Interests of the Child
- Operation of the Protection convention in Australia
- Important Terms
- Benefits of the Protection Convention
Purpose
By providing for direct communication between central authorities in Convention countries, the Protection Convention aims to eliminate the delays and confusion which often arise currently in using the diplomatic channel to identify authorities responsible for handling child protection cases and to pass communications to and from Australian child protection Departments. The Protection Convention intends to eliminate in principle all competition between the authorities of different States in taking measures of protection for the person or the property of the child. It complements the operation of the Abduction Convention by ensuring that, with limited exceptions, the courts of a child’s country of habitual residence retain jurisdiction over parental responsibility matters, and facilitates the recognition and enforcement of foreign contact orders. Article 35 of the Protection Convention strengthens the access provisions of the Hague Child Abduction Convention by allowing a non-residence parent to obtain a court declaration in support of contact.
The purpose of Australia’s legislation is to address conflicts in jurisdiction in children’s matters between courts in different countries. This is a difficult area of law, with Australian and overseas courts sometimes making conflicting parenting orders in relation to the same children. The legislation implements the jurisdictional rules established by the Convention to determine the appropriate forum for certain children’s matters.
The Best Interests of the Child
The Protection Convention confirms in its preamble that the best interests of the child are to be a primary consideration, and acknowledges its complementarity with the United Nations Convention on the Rights of the Child of 20 November 1989.
The habitual residence country of an abducted child retains jurisdiction to determine the child’s future welfare until the child acquires a new the habitual residence, and each person or body with a right of custody has acquiesced to the removal or retention.
Operation of the Convention in Australia
The Protection Convention is implemented federally in Australia through the Family Law Amendment (Child Protection Convention) Act 2002 and the Family Law (Child Protection Convention) Regulations 2003. The Regulations apply to the states and territories until such time as the states and territories implement legislation having the same or comparable effect as the federal Regulations.
It also implements arrangements to guarantee the recognition and enforcement in Australia of parental responsibility orders from other Convention countries and vice versa. Regulations lay down rules relating to the conditions upon which parental responsibility orders will be entitled to recognition and enforcement, and makes provision to facilitate co-operation between courts in Australia and courts overseas in parental responsibility cases.
The Protection Convention requires that the Contracting States accept considerable limitation on the jurisdiction of their authorities in order to avoid conflicts in matters of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children.
The Protection Convention also establishes rules to determine jurisdiction in child welfare matters, and facilitates the mutual recognition and enforcement of foreign child protection orders.
The Protection Convention countries are listed in Schedule 1 of the Australian Family Law (Child Protection Convention) Regulations 2003. The Permanent Bureau of the Hague Conference maintains lists of contact officers in each country for Hague Conventions. By having designated officers of State and Territory child protection Departments included in the lists, these Departments will avoid problems which have arisen in some past cases in establishing their status and bona fides to the satisfaction of overseas courts and authorities. (In some past cases, overseas courts have insisted on involving State government Ministers as they were unsure of the status and authority of Australian child protection Department officers).
Important Terms
Parental Responsibility - The adoption in this Convention of the term ‘parental responsibility’ is complementary to Australian law and term is drawn from the Convention on the Rights of the Child. The term is defined to include parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child.
Protection - The term “protection” as used in the Convention encompasses the term child protection as used in Australia’s State and Territory child welfare laws.
Habitual Residence - The concept of the child’s habitual residence is central to the issue of jurisdiction. For example, a child resides with the mother in Australia by court order. The child goes on a contact visit to the father in a Convention Country. The father refuses to return the child and applies to the Convention Country’s courts for custody of the child. The Convention Country’s court is prevented by the Child Protection Convention from making any final orders. The mother has evidence that the child is at risk of harm from the father’s family. By request from Australia, the Convention Country’s authorities must take protective measures for the child under the convention.
The mother then makes a Hague Child Abduction Convention application for the child’s return. The Convention Country’s court refuses to return the child because he objects to returning to Australia. However, subject to certain conditions, the child’s habitual residence remains Australia and the father must apply to the Family Court for a final residence order for the child. The Family Court would no doubt take into account in determining the child’s residence, the reasons of the Convention Country’s court for refusing to order the child’s return under the Abduction Convention.
Benefits of the Protection Convention
a) Child protection
i) Co-operation with overseas authorities
There is an increasing need for formal co-operation procedures between child protection authorities in different countries. The ease of international travel and the increase in cross cultural marriages in Australia has resulted in an increasing number of problem cases for Australian authorities in this area. The Protection Convention provides mechanisms for child protection authorities in Australia and other countries to co-operate in relation to protective measures for an Australian child abroad, or in relation to a child returning to another country who is subject to Australian protective measures.
ii) Jurisdictional certainty
The jurisdictional rules in the Protection Convention will clarify responsibilities and avoid the problem of authorities in different countries having concurrent jurisdiction. It is in the best interests of children that there be internationally agreed rules determining which child protection authorities have jurisdiction in relation to a child. The absence of agreed rules may mean that authorities in one country fail to act because they assume authorities in another country have taken responsibility for protecting a child.
iii) Overseas recognition of child protection measures
The Protection Convention will permit the recognition overseas of Australian child protection orders and other measures of protection where appropriate.
b)Family law
i) Jurisdictional uncertainty
Conflict in jurisdiction between Australian courts and overseas courts in children’s matters has been a longstanding area of difficulty. In some cases Australian and overseas courts have made conflicting parenting orders in relation to the same children. The jurisdictional rules laid down in the Convention are designed to remove uncertainty for litigants and the courts in determining the appropriate forum to determine disputes as to parental responsibility.
ii) Finality in litigation
In the absence of reciprocal recognition arrangements, it is open to a parent to ignore orders made by Australian courts and re-litigate residence and contact issues in the another country to the disadvantage of the child and the other parent in Australia. To a limited extent these difficulties have been overcome by bi-lateral arrangements on recognition of parenting. However some important migrant source countries have refused to negotiate bilateral arrangements with Australia in this area, arguing that Australia should ratify relevant multilateral treaties. Ratification of the Protection of Children Convention will extend the number of countries in which Australian parenting orders would be entitled to direct recognition and enforcement.
iii) Recognition of parental responsibility acquired by operation of law
Many countries do not recognise the parental responsibility of a father who is not married to the child’s mother. The Convention provides for recognition in other countries of the rights conferred on fathers in Australia by operation of law
iv) Cross border access cases
Parents seeking access to their children living in other countries often face significant problems. The Convention includes a number of provisions designed to assist in these cases.
v) Contact point
Note that Australian family courts already had administrative procedures for registration of foreign custody orders and they are already hearing applications to make parenting orders in international cases. The Australian Government Commonwealth Attorney-General’s Department continues to act as the contact point between overseas courts and Australian family courts for requests to register family law measures
c)Children’s property
In the area of children’s property, the real benefit of the Convention is for parents who are guardians of their children’s property by operation of law. Ratification of the property provisions of the Convention will ensure that that their authority as guardians is recognised in other Convention countries by a simple process of registration.
In addition, under State child protection legislation, a person appointed as guardian for the person of a child is thereby guardian for the child’s property. The Convention will therefore ensure recognition overseas of this aspect of child protection legislation. The Working Group concluded that the Convention will have a relatively limited impact on Public Trustees and similar authorities in Australia. Most of their activities in relation to children’s property would be outside the ambit of the Convention as it is carried out under trusts or laws on succession (which are excluded from the scope of the Convention ).