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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
CHILD PROTECTION (INTERNATIONAL
MEASURES) BILL 2003
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
3. Main purposes of Act
4. Interpretation
5. Application of Act
6. Act binds Crown
7. Circumstances in which Tasmanian court may exercise
jurisdiction
PART 2 - JURISDICTION FOR THE PERSON OF A
CHILD
8. Application of this Part
9. Matters relating to jurisdiction for the person of a child
10. Limitation when a child is wrongfully removed from or
retained outside a Convention country
11. Limitations concerning prior proceedings in a Convention
country
12. If a Tasmanian authority is asked to assume jurisdiction
[Bill 14]-I
13. Limitation if a competent authority of a Convention
country is asked to assume jurisdiction
14. When a certain Tasmanian personal protection measure
lapses
PART 3 - JURISDICTION FOR DECISIONS ABOUT A
GUARDIAN OF A CHILD'S PROPERTY
15. Application of this Part
16. Matters relating to jurisdiction to appoint, or determine
the powers of, a guardian of a child's property
17. Limitation when a child is wrongfully removed from or
retained outside a Convention country
18. Limitations when prior proceedings pending in a
Convention country
19. If Tasmanian authority is asked to assume jurisdiction
20. Limitation if a competent authority of a Convention
country is asked to assume jurisdiction
21. When a certain Tasmanian property protection measure
lapses
PART 4 - APPLICABLE LAW
22. Applicable law generally
PART 5 - RECOGNITION OF FOREIGN MEASURES
AND THEIR ENFORCEMENT IN TASMANIA
23. Action on receipt of foreign personal protection measure
24. Action on receipt of foreign property protection measure
25. Recognition of foreign measures in Tasmanian courts
26. Cancellation of registered foreign measure and related
matters
27. Matters relevant for Tasmanian court in proceeding
under section 23 or 26
28. Recognition and enforcement of Tasmanian measure
PART 6 - CO-OPERATION AND OTHER MATTERS
29. Department is Tasmania's central authority
2
30. Functions of Department
31. Obligation to obtain consent to place child
32. Obligation to inform competent authority about serious
danger to child
33. Proceedings, &c., for contact
34. Giving information to central authorities and competent
authorities in Convention countries
PART 7 - MISCELLANEOUS
35. Helping person in relation to Tasmanian measure
36. Helping person in relation to foreign measure
37. Delegation by Secretary
38. Regulation-making power
39. Administration of Act
SCHEDULE 1 - CHILD PROTECTION CONVENTION
3
4
CHILD PROTECTION (INTERNATIONAL
MEASURES) BILL 2003
This Public Bill originated in the House of Assembly, and, having this day
passed, is now ready for presentation to the Legislative Council for its
concurrence.
P. R. ALCOCK, Clerk of the House
15 April 2003
(Brought in by the Minister for Health and Human
Services, the Honourable David Edward Llewellyn)
A BILL FOR
An Act to provide for Tasmania's involvement in
relation to the Convention on Jurisdiction,
Applicable Law, Recognition, Enforcement and Co-
operation in respect of Parental Responsibility and
Measures for the Protection of Children, and for
other purposes
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
PART 1 - PRELIMINARY
Short title
1. This Act may be cited as the Child Protection
(International Measures) Act 2003.
[Bill 14] 5
s. 2 No. Child Protection (International 2003
Measures)
Commencement
2. This Act commences on a day to be proclaimed.
Main purposes of Act
3. The main purposes of this Act are to recognise -
(a) the importance of international co-operation
for the protection of children; and
(b) 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
(c) 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.
Interpretation
4. (1) 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 -
(a) if there is one central authority of the
Convention country under Article 29 of
the Child Protection Convention, the
6
2003 Child Protection (International No. s. 4
Measures)
Convention country's central authority;
or
(b) 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) a competent authority of Australia; or
(b) a competent authority of a Convention
country; or
(c) a competent authority of a non-
Convention country;
7
s. 4 No. Child Protection (International 2003
Measures)
"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 -
(a) protecting the person of a child; or
(b) 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 -
(a) protecting the person of a child; or
(b) 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:
(a) an individual;
(b) a corporation;
8
2003 Child Protection (International No. s. 4
Measures)
(c) an unincorporated body;
(d) a statutory authority or body;
(e) a court or tribunal;
"foreign measure" means -
(a) a foreign personal protection measure; or
(b) 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 -
(a) who is a refugee; or
(b) who is internationally displaced due to
disturbances occurring in his or her
country of habitual residence; or
9
s. 4 No. Child Protection (International 2003
Measures)
(c) whose country of habitual residence
cannot be determined;
"registrar", in relation to a court, means -
(a) if the court is the Supreme Court, the
Registrar of the Supreme Court; or
(b) if the court is the Children's Court, a
district registrar of the district registry
of the court; or
(c) if the court is the Magistrates Court, a
district registrar of the district registry
of the court;
"Tasmanian authority" means -
(a) for a Tasmanian personal protection
measure relating to a child, a
Tasmanian court or the Department; or
(b) for a Tasmanian property protection
measure, a Tasmanian court or The
Public Trustee;
"Tasmanian court" means -
(a) the Supreme Court; or
(b) the Children's Court; or
(c) the Magistrates Court;
"Tasmanian law" means the law in force in
Tasmania;
"Tasmanian measure" means -
(a) a Tasmanian personal protection
measure relating to a child; or
10
2003 Child Protection (International No. s. 5
Measures)
(b) 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.
(2) Unless the contrary intention appears,
expressions used in this Act have the same meaning as
they have in the Child Protection Convention.
Application of Act
5. (1) This Act does not apply to a matter to which the
Child Protection Convention does not apply under Article 4
of the Convention.
(2) 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.
11
s. 6 No. Child Protection (International 2003
Measures)
Act binds Crown
6. This Act binds the Crown in right of Tasmania and, so
far as the legislative power of Parliament permits, in all
its other capacities.
Circumstances in which Tasmanian court may
exercise jurisdiction
7. (1) If, under this Act, a Tasmanian court may exercise
jurisdiction for a matter, the court may exercise the
jurisdiction for the matter -
(a) on application by the Department or Public
Trustee; or
(b) on its own initiative.
(2) For this Act, the Department and Public Trustee
may make applications to a Tasmanian court.
(3) 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.
12
2003 Child Protection (International No. s. 8
Measures)
PART 2 - JURISDICTION FOR THE PERSON OF A
CHILD
Application of this Part
8. (1) 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) a central authority or competent authority of a
Convention country;
(b) a competent authority of a non-Convention
country.
(2) 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.
Matters relating to jurisdiction for the person of a
child
9. (1) 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.
(2) The Tasmanian authority may exercise
jurisdiction for a Tasmanian personal protection measure
only in relation to -
(a) a child who is present and habitually resident
in Australia; or
13
s. 9 No. Child Protection (International 2003
Measures)
(b) a child who is present in Australia and
habitually resident in a Convention country,
if -
(i) the child's protection requires taking the
measure as a matter of urgency; or
(ii) the measure is provisional and limited in
its territorial effect to Australia; or
(iii) the child is a refugee child; or
(iv) 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
(v) a competent authority of the country of
the child's habitual residence agrees to
the Tasmanian authority assuming
jurisdiction; or
(c) a child who is present in a Convention country,
if -
(i) the child is habitually resident in
Australia; or
(ii) 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
(iii) 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
14
2003 Child Protection (International No. s. 10
Measures)
(iv) a competent authority of the country of
the child's habitual residence or country
of refuge agrees to the Tasmanian
authority assuming jurisdiction; or
(d) a child who is present in Australia and is a
refugee child; or
(e) a child who is present in a non-Convention
country, if -
(i) the child is habitually resident in
Australia; or
(ii) the child is habitually resident in a non-
Convention country and is an Australian
citizen; or
(f) a child who is present in Australia, if the child
is habitually resident in a non-Convention
country.
(3) 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.
(4) Subsection (2)(a), (b), (c) and (d) is subject to the
limitations in sections 10, 11 and 13.
Limitation when a child is wrongfully removed from
or retained outside a Convention country
10. 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 -
15
s. 11 No. Child Protection (International 2003
Measures)
(a) the child has been wrongfully removed from or
retained outside a Convention country; and
(b) an authority of the Convention country keeps
jurisdiction under Article 7 of the Child
Protection Convention.
Limitations concerning prior proceedings in a
Convention country
11. (1) 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).
(2) If the Tasmanian authority is a Tasmanian
court, before the court exercises the jurisdiction, the court
must order the Department -
(a) 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
(b) to report to the court about the outcome of
those efforts.
(3) 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 -
(a) to find out whether measures relating to the
protection of the person of the child have been
sought from the competent authorities; and
(b) to decide the most appropriate course of
action.
16
2003 Child Protection (International No. s. 12
Measures)
If a Tasmanian authority is asked to assume
jurisdiction
12. (1) A Tasmanian authority may, if it considers that it
is in the child's best interests, accept or reject a request
made under Article 8 of the Child Protection Convention
by a competent authority of a Convention country for the
Tasmanian authority to assume jurisdiction to take a
Tasmanian personal protection measure relating to the
child.
(2) If the Tasmanian authority is a Tasmanian
court, the court may order the Department to do both of
the following:
(a) in a way that the Department considers
appropriate, to request, under Article 9 of the
Child Protection Convention, that a competent
authority of a Convention country agree to the
Tasmanian court assuming jurisdiction to take
a Tasmanian personal protection measure
relating to the child;
(b) to report to the court about the outcome of the
request.
(3) The Tasmanian court may only make the order
under subsection (2) if it considers that it is better placed
than the competent authority to assess the child's best
interests.
Limitation if a competent authority of a Convention
country is asked to assume jurisdiction
13. (1) A Tasmanian court may order the Department -
(a) to request, in a way the Department considers
appropriate, a competent authority described
17
s. 13 No. Child Protection (International 2003
Measures)
in Article 8, paragraph 2 of the Child
Protection Convention -
(i) to assume jurisdiction under Article 8 of
the Convention for protecting the person
of a child; and
(ii) as the competent authority considers
necessary, to take measures to protect
the person of a child; and
(b) to report to the court about the outcome of the
request.
(2) In addition, the Tasmanian court may make any
other order it considers necessary for an order under
subsection (1).
(3) The Tasmanian court may only make the order
under subsection (1) if the court considers that the
competent authority is better placed to assess the child's
best interests.
(4) The Tasmanian court may accept or reject a
request under Article 9 of the Child Protection Convention
made by a competent authority of a Convention country
described in Article 8, paragraph 2 of the Convention, for
the competent authority to assume jurisdiction to take a
measure for protecting the person of the child.
(5) If the competent authority assumes jurisdiction
under the request, a Tasmanian court must not exercise
jurisdiction in accordance with section 9(2)(a), (b)(iii), (iv)
and (v), (c) or (d) while the competent authority continues
to exercise its jurisdiction.
18
2003 Child Protection (International No. s. 14
Measures)
When a certain Tasmanian personal protection
measure lapses
14. (1) A Tasmanian personal protection measure relating
to a child that is taken in response to a particular
situation by a Tasmanian authority exercising jurisdiction
in accordance with section 9(2)(b)(i) or (ii) lapses if a
foreign personal protection measure relating to the child,
that is taken in response to the same situation, is
recognised by registration under section 25.
(2) A Tasmanian personal protection measure
relating to a child that is taken in response to a particular
situation by a Tasmanian authority exercising jurisdiction
in a case of urgency, or in the taking of a measure of a
provisional character, lapses if -
(a) a measure for protecting the person of the
child, that is taken in response to the same
situation, is taken by a competent authority of
a non-Convention country; and
(b) the measure is recognised under Tasmanian
law or under the law of another State or of a
Territory.
19
s. 15 No. Child Protection (International 2003
Measures)
PART 3 - JURISDICTION FOR DECISIONS ABOUT
A GUARDIAN OF A CHILD'S PROPERTY
Application of this Part
15. (1) This Part applies only if an issue under Tasmanian
law is whether a Tasmanian court or the Public Trustee,
as distinct from any of the following authorities, is to
appoint, or determine the powers of, a guardian of a child's
property:
(a) a central authority or competent authority of a
Convention country;
(b) a competent authority of a non-Convention
country.
(2) This Part does not apply if an issue under
Tasmanian law is whether a Tasmanian court or the
Public Trustee, as distinct from another competent
authority of Australia, is to appoint, or determine the
powers of, a guardian of a child's property.
Matters relating to jurisdiction to appoint, or
determine the powers of, a guardian of a child's
property
16. (1) This section applies if a Tasmanian authority has
jurisdiction under Tasmanian law, apart from this Act, for
a Tasmanian property protection measure in relation to a
child.
(2) The Tasmanian authority may exercise
jurisdiction for a Tasmanian property protection measure
only in relation to -
(a) a child who is habitually resident in Australia;
or
20
2003 Child Protection (International No. s. 16
Measures)
(b) a child who is habitually resident in a
Convention country, if -
(i) the protection of the child's property in
Australia requires taking the measure
as a matter of urgency; or
(ii) the measure is provisional and limited in
its territorial effect to property in
Australia; or
(iii) a request to assume jurisdiction is made
to the Tasmanian authority by, or at the
invitation of, a competent authority of
the country of the child's habitual
residence or country of refuge; or
(iv) a competent authority of the country of
the child's habitual residence or country
of refuge agrees to the Tasmanian
authority assuming jurisdiction; or
(v) 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
(c) a child who is present in Australia and is a
refugee child; or
(d) a child who is present in a non-Convention
country, if -
(i) the child is habitually resident in
Australia; or
(ii) the child is habitually resident in a non-
Convention country and is an Australian
citizen; or
21
s. 17 No. Child Protection (International 2003
Measures)
(e) a child who is present in Australia, if the child
is habitually resident in a non-Convention
country.
(3) 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.
(4) Subsection (2)(a), (b) and (c) is subject to the
limitations in sections 17, 18 and 20.
Limitation when a child is wrongfully removed from
or retained outside a Convention country
17. A Tasmanian authority must not, other than in a case
of urgency, exercise jurisdiction in accordance with
section 16(2)(a), (b) or (c) to take a Tasmanian property
protection measure relating to a child if -
(a) the child has been wrongfully removed from or
retained outside a Convention country; and
(b) an authority of the Convention country keeps
jurisdiction under Article 7 of the Child
Protection Convention.
Limitations when prior proceedings pending in a
Convention country
18. (1) This section applies to the exercise of jurisdiction
by a Tasmanian authority in accordance with
section 16(2)(a), (b)(iii), (iv) and (v) or (c).
22
2003 Child Protection (International No. s. 18
Measures)
(2) The Tasmanian authority must not exercise that
jurisdiction to take a Tasmanian property protection
measure relating to a child if -
(a) a corresponding measure has been sought from
a competent authority of a Convention country
and it was sought -
(i) if the Tasmanian authority is a
Tasmanian court, before the proceedings
were started in the court; or
(ii) if the Tasmanian authority is the Public
Trustee, before the Public Trustee
exercises the jurisdiction; and
(b) any of the following applies:
(i) the child is habitually resident in the
Convention country;
(ii) the child is present in the Convention
country and is a refugee child;
(iii) a request to assume jurisdiction is made
to a competent authority of the country
of the child's habitual residence or
country of refuge;
(iv) a competent authority of the country of
the child's habitual residence or country
of refuge agrees to the competent
authority assuming jurisdiction;
(v) the competent authority of the
Convention country is exercising
jurisdiction in proceedings concerning
the divorce or separation of the child's
parents or the annulment of their
marriage (but see subsection (3));
23
s. 18 No. Child Protection (International 2003
Measures)
(vi) the child has been wrongfully removed
from or retained outside the Convention
country and a competent authority of the
Convention country keeps jurisdiction
under Article 7 of the Child Protection
Convention.
(3) Subsection (2)(b)(v) only applies (subject to
subsection (4)) if -
(a) one or both of the child's parents are
habitually resident in the Convention country
when the proceedings referred to in that
subparagraph are started; and
(b) one or both of the parents have parental
responsibility for the child; and
(c) the jurisdiction of the competent authority of
the Convention country to take the measure is
accepted by the parents and each other person
with parental responsibility for the child; and
(d) the exercise of jurisdiction to take the measure
is in the best interests of the child; and
(e) the proceedings on the application for divorce
or separation of the child's parents or the
annulment of their marriage have not been
finalised.
(4) Subsection (2) does not apply if the competent
authority of the Convention country has declined
jurisdiction or is no longer considering taking the measure
sought.
24
2003 Child Protection (International No. s. 19
Measures)
If Tasmanian authority is asked to assume
jurisdiction
19. (1) A Tasmanian court may, if it considers that it is in
the child's best interests, accept or reject a request made
under Article 8 of the Child Protection Convention by, or
at the invitation of, a competent authority of a Convention
country for the Tasmanian court to assume jurisdiction to
take a Tasmanian property protection measure relating to
the child.
(2) A Tasmanian court may order, or invite the
parties to proceedings before the court to ask, the
Department or Public Trustee to do both of the following:
(a) in a way that the Department or Public
Trustee considers appropriate, to request,
under Article 9 of the Child Protection
Convention, that a competent authority of a
Convention country agree to the Tasmanian
court assuming jurisdiction to take a
Tasmanian property protection measure
relating to the child;
(b) to report to the court about the outcome of the
request.
(3) The Public Trustee must -
(a) apply to a Tasmanian court for an order that
the Public Trustee may accept a request,
under Article 9 of the Child Protection
Convention, for the Public Trustee to assume
jurisdiction to take a Tasmanian property
protection measure relating to the child that
the Public Trustee considers necessary; or
(b) reject the request.
(4) The Tasmanian court may only -
25
s. 20 No. Child Protection (International 2003
Measures)
(a) make the order, or issue the invitation, under
subsection (2) if it considers that it is better
placed than the competent authority to assess
the child's best interests; or
(b) make the order under subsection (3)(a) if it
considers that the Public Trustee is better
placed than the competent authority to assess
the child's best interests.
Limitation if a competent authority of a Convention
country is asked to assume jurisdiction
20. (1) A Tasmanian court may order, or invite the parties
to proceedings before the court to ask, the Department or
Public Trustee -
(a) to request, in a way the Department or Public
Trustee considers appropriate, a competent
authority described in Article 8, paragraph 2
of the Child Protection Convention -
(i) to assume jurisdiction under Article 8 of
the Convention for appointing, or
deciding the powers of, a guardian of the
child's property; and
(ii) as the competent authority considers
necessary, to take a measure appointing,
or deciding the powers of, a guardian of
the child's property; and
(b) to report to the court about the outcome of the
request.
(2) In addition, the Tasmanian court may make any
other order it considers necessary for an order under
subsection (1).
26
2003 Child Protection (International No. s. 21
Measures)
(3) The Tasmanian court may only make the order
or issue the invitation under subsection (1) if the court
considers that the competent authority is better placed to
assess the child's best interests.
(4) The Tasmanian court may accept or reject a
request under Article 9 of the Child Protection Convention
made by, or at the invitation of, a competent authority of a
Convention country described in Article 8, paragraph 2 of
the Convention, for the competent authority to assume
jurisdiction to take measures for the protection of the
child's property.
(5) If the competent authority assumes jurisdiction
under the request, a Tasmanian court must not exercise
jurisdiction in accordance with section 16(2)(a), (b)(iii), (iv)
and (v) or (c) while the competent authority continues to
exercise its jurisdiction.
When a certain Tasmanian property protection
measure lapses
21. (1) A Tasmanian property protection measure relating
to a child that is taken in response to a particular
situation by a Tasmanian authority exercising jurisdiction
in accordance with section 16(2)(b)(i) or (ii) lapses if -
(a) a foreign property protection measure relating
to the child, that is taken in response to the
same situation, is taken by a competent
authority of a Convention country; and
(b) any of the following applies:
(i) the child is habitually resident in the
Convention country;
(ii) the child is present in the Convention
country and is a refugee child;
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(iii) a request to assume jurisdiction is made
to the competent authority of the
Convention country by, or at the
invitation of, a competent authority of
the country of the child's habitual
residence;
(iv) a competent authority of the country of
the child's habitual residence agrees to
the competent authority of the
Convention country assuming
jurisdiction;
(v) a competent authority of the Convention
country is exercising jurisdiction in
proceedings concerning the divorce or
separation of the child's parents or the
annulment of their marriage (but see
subsection (2));
(vi) the child has been wrongfully removed
from or retained outside the Convention
country and a competent authority of the
Convention country keeps jurisdiction
under Article 7 of the Child Protection
Convention.
(2) Subsection (1)(b)(v) only applies if -
(a) one or both of the child's parents are
habitually resident in the Convention country
when the proceedings referred to in that
subparagraph are started; and
(b) one or both of the parents have parental
responsibility for the child; and
(c) the jurisdiction of the competent authority of
the Convention country to take the foreign
property protection measure is accepted by the
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2003 Child Protection (International No. s. 21
Measures)
parents and each other person with parental
responsibility for the child; and
(d) the exercise of jurisdiction to take the foreign
property protection measure is in the best
interests of the child; and
(e) the proceedings on the application for divorce
or separation of the child's parents or the
annulment of their marriage have not been
finalised.
(3) A Tasmanian property protection measure
relating to a child that is taken in response to a particular
situation by a Tasmanian authority exercising jurisdiction
in a case of urgency, or in the case of the taking of a
measure of a provisional character, lapses if -
(a) a measure for the appointment, or the
determination of the powers, of a guardian for
the child's property, that is taken in response
to the same situation, is taken by a competent
authority of a non-Convention country; and
(b) the measure referred to in paragraph (a) is
recognised under Tasmanian law or under the
law of another State or of a Territory.
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Measures)
PART 4 - APPLICABLE LAW
Applicable law generally
22. (1) This section applies to a Tasmanian authority
exercising jurisdiction in accordance with Part 2 or 3.
(2) The Tasmanian authority must apply Tasmanian
law in exercising that jurisdiction, other than choice of law
rules.
(3) However, the Tasmanian authority may in
exceptional circumstances apply or take into account the
law of another country with which -
(a) a child has a substantial connection; or
(b) a child's property is substantially connected -
if the Tasmanian authority considers the protection of the
person of the child, or the child's property, requires the
authority to do so.
(4) In this section, "law" does not include choice of
law rules.
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2003 Child Protection (International No. s. 23
Measures)
PART 5 - RECOGNITION OF FOREIGN MEASURES
AND THEIR ENFORCEMENT IN TASMANIA
Action on receipt of foreign personal protection
measure
23. (1) This section applies if the Department is given
either of the following documents, together with a request
for the Department to take an action under the Child
Protection Convention:
(a) a document that is a foreign personal
protection measure relating to a child;
(b) a document that, although it is not a foreign
personal protection measure relating to a
child, states details of a foreign personal
protection measure relating to a child.
(2) After consulting with the competent authority of
the country in which the foreign personal protection
measure was taken, the Department must do one of the
following:
(a) give the foreign personal protection measure to
a registrar of a Tasmanian court for
recognition of the measure by registration
under section 25;
(b) give the foreign personal protection measure to
the Commonwealth central authority together
with a request for the Commonwealth central
authority to take action under the Child
Protection Convention, including, for example,
registration of the measure under the Family
Law Act 1975 of the Commonwealth;
(c) exercise the Department's jurisdiction in
accordance with Part 2;
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(d) apply to a Tasmanian court for the court -
(i) to exercise the court's jurisdiction in
accordance with Part 2; or
(ii) to decide whether or not the court should
refuse recognition of the measure under
subsection (3);
(e) agree with the competent authority that the
Department will not do anything.
(3) A Tasmanian court may order that a foreign
personal protection measure relating to a child be refused
recognition on any of the following grounds:
(a) the competent authority of the Convention
country did not have jurisdiction under the
Child Protection Convention for taking the
foreign personal protection measure;
(b) in taking the foreign personal protection
measure, the competent authority of the
Convention country is taken to have acted
contrary to the fundamental principles of
procedure under Tasmanian law as mentioned
in subsection (4);
(c) recognition of the foreign personal protection
measure is contrary to public policy in
Tasmania having regard to the child's best
interests;
(d) if the foreign personal protection measure
were recognised by registration under
section 25, there would be no appropriate
means of enforcing the measure under
Tasmanian law;
(e) the foreign personal protection measure is
incompatible with a later measure taken in a
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2003 Child Protection (International No. s. 23
Measures)
non-Convention country in which the child
habitually resides and, if the later measure
were a foreign personal protection measure, it
could not be refused recognition under
paragraph (b) or (c);
(f) the foreign personal protection measure places
the child in a foster family or institutional care
in Tasmania and the competent authority did
not obtain the Department's consent to the
placement before taking the measure.
(4) A competent authority is taken to have acted
contrary to the fundamental principles of procedure under
Tasmanian law if -
(a) the competent authority did not give the child,
or a person with parental responsibility for the
child, an opportunity to be heard before taking
the foreign personal protection measure; and
(b) the competent authority did not take the
foreign personal protection measure as a
matter of urgency.
(5) A person who is interested in an application by
the Department under subsection (2)(d) may apply to the
court to be joined as a party to the proceeding.
(6) If -
(a) under subsection (2)(a) the Department gives a
foreign personal protection measure relating to
a child to a registrar of a Tasmanian court;
and
(b) the measure authorises the performance of a
medical procedure or treatment on the child
that is a procedure or treatment for which a
parent does not, under Tasmanian law, have
authority to consent -
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Measures)
the measure must be accompanied by a Family Court
declaration that recognition of the measure is not contrary
to public policy having regard to the child's best interests.
(7) In this section, "Family Court declaration"
means a declaration by a court exercising jurisdiction for
proceedings under the Family Law Act 1975 of the
Commonwealth or the Family Court Act 1997 of Western
Australia.
Action on receipt of foreign property protection
measure
24. (1) This section applies if the Department is given
either of the following documents, together with a request
for the Department to take an action under the Child
Protection Convention:
(a) a document that is a foreign property
protection measure relating to a child;
(b) a document that, although it is not a foreign
property protection measure relating to a
child, states details of a foreign property
protection measure relating to a child.
(2) The Department must consider whether the
foreign property protection measure includes a provision
directed to protecting the person of the child.
(3) If the Department considers the foreign property
protection measure includes a provision directed to
protecting the person of the child, the Department must
deal with the measure under section 23 as if it were a
foreign personal protection measure.
(4) If the Department does not consider the foreign
property protection measure includes a provision directed
to protecting the person of the child, the Department must
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2003 Child Protection (International No. s. 25
Measures)
give the measure to a registrar of a Tasmanian court for
recognition of the measure by registration under
section 25.
Recognition of foreign measures in Tasmanian
courts
25. (1) A registrar of a Tasmanian court must register a
foreign measure given to the registrar by the Department
under section 23 or 24.
(2) A foreign measure registered under
subsection (1) -
(a) has the same force and effect as a Tasmanian
personal protection measure or a Tasmanian
property protection measure, as the case may
be; and
(b) prevails over an earlier measure in force in
Tasmania to the extent the foreign measure is
inconsistent with the earlier measure.
(3) An interested person may take legal proceedings
in a Tasmanian court to enforce a foreign measure
registered under subsection (1).
(4) Subsections (2) and (3) are subject to the
cancellation of the registration of the foreign measure
under section 26.
Cancellation of registered foreign measure and
related matters
26. (1) An interested person may apply to a Tasmanian
court to cancel the registration under section 25 of a
foreign measure relating to a child.
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(2) The Tasmanian court may cancel the registration
of the foreign measure if any of the following applies:
(a) for a foreign measure that is a foreign personal
protection measure, the Tasmanian court may
take a Tasmanian personal protection
measure relating to the child in accordance
with Part 2;
(b) for a foreign measure that is a foreign property
protection measure, the Tasmanian court may
take a Tasmanian property protection
measure relating to the child in accordance
with Part 3;
(c) the relevant competent authority responsible
for taking the foreign measure did not have
jurisdiction, under the Child Protection
Convention, for taking the measure;
(d) in taking the measure, the relevant competent
authority is taken to have acted contrary to
the fundamental principles of procedure under
Tasmanian law as mentioned in subsection (3);
(e) recognition or enforcement of the measure in
Tasmania is contrary to public policy, taking
into account the child's best interests;
(f) for a foreign measure that is a foreign measure
property protection measure, there are no
appropriate means of enforcing the measure
under Tasmanian law.
(3) The relevant competent authority is taken to
have acted contrary to the fundamental principles of
procedure under Tasmanian law if -
(a) the competent authority did not give the child,
or a person with parental responsibility for the
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2003 Child Protection (International No. s. 27
Measures)
child, an opportunity to be heard before taking
the foreign measure; and
(b) the competent authority did not take the
foreign measure as a matter of urgency.
Matters relevant for Tasmanian court in proceeding
under section 23 or 26
27. (1) This section applies to a proceeding in a
Tasmanian court under section 23 or 26 about a foreign
measure.
(2) The Tasmanian court is bound by findings of fact
on which the competent authority of the Convention
country based its jurisdiction.
(3) Subject to section 26, the Tasmanian court must
not review the merits of the measure.
(4) A document of a competent authority of a
Convention country is admissible as evidence of the facts
stated in the document.
(5) An affidavit of a witness who resides outside
Australia, that is filed in the proceeding, is admissible as
evidence in the proceeding, even though the witness does
not attend for cross-examination in the proceeding.
Recognition and enforcement of Tasmanian
measure
28. (1) After consulting with the central authority or a
competent authority of a Convention country, the
Department may give a Tasmanian personal protection
measure relating to a child to the central authority of the
Convention country for recognition and enforcement of the
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Measures)
Tasmanian personal protection measure in the Convention
country.
(2) After consulting with the central authority or a
competent authority of a Convention country, a
Tasmanian authority may give a Tasmanian property
protection measure relating to a child to the central
authority of a Convention country for recognition and
enforcement of the Tasmanian property protection
measure in the Convention country.
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2003 Child Protection (International No. s. 29
Measures)
PART 6 - CO-OPERATION AND OTHER MATTERS
Department is Tasmania's central authority
29. (1) For the Child Protection Convention, the
Department is Tasmania's central authority.
(2) If the Department must or may perform a
function or exercise a power under this Act, including
under any of the following, the Secretary of the
Department is responsible for performing the function or
exercising the power:
(a) a Tasmanian measure;
(b) a foreign measure recognised by registration
under section 25;
(c) an order of a Tasmanian court under this Act,
other than a Tasmanian measure.
Functions of Department
30. (1) The Department's functions include co-operating
with central authorities of Convention countries -
(a) to find solutions for the protection of particular
children; and
(b) to help in the implementation of Tasmanian
measures, foreign measures and measures of
non-Convention countries directed to
protecting children or their property; and
(c) to consider taking, or applying for, a
Tasmanian measure relating to a child -
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Measures)
(i) at the request of a competent authority
of another country if the measure is a
Tasmanian personal protection measure;
or
(ii) at the request, or at the invitation, of a
competent authority of another country
if the measure is a Tasmanian property
protection measure; and
(d) to exchange information, subject to
appropriate confidentiality provisions; and
(e) to provide information on laws and services;
and
(f) to help in locating children; and
(g) to provide reports on the situation of
particular children; and
(h) to apply to Tasmanian courts for orders in
response to requests from competent
authorities in Convention countries -
(i) to transfer or receive jurisdiction; or
(ii) to take measures directed to protecting
the person of a child or measures
directed to protecting a child's property.
(2) If a competent authority of a Convention country
consults with the Department for the purpose of obtaining
the Department's consent to placing a child with a foster
family, or in institutional care, in Tasmania, the
Department must take into account the child's best
interests in deciding whether or not to consent.
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2003 Child Protection (International No. s. 31
Measures)
Obligation to obtain consent to place child
31. (1) A Tasmanian authority must obtain the consent of
a competent authority of a Convention country before
placing a child in a foster family, or in institutional care,
in the Convention country.
(2) If the Tasmanian authority is a Tasmanian
court, before placing a child, the Tasmanian authority may
order the Department to consult a competent authority of
the Convention country concerned.
(3) If a Tasmanian court orders the Department to
consult, then the court must provide the Department with
a report on the child and the reasons for the proposed
placement.
Obligation to inform competent authority about
serious danger to child
32. (1) A Tasmanian authority must inform a competent
authority of another country of any information the
Tasmanian authority may have about any serious danger
to a child -
(a) whose residence has moved from Tasmania to
the other country; or
(b) who is present in the other country.
(2) Subsection (1) has effect despite any obligation of
confidentiality imposed on the Tasmanian authority or a
person by a Tasmanian law or anything else (including a
contract or professional ethics).
(3) A person is not liable in civil or criminal
proceedings, and is not to be considered to have breached
any professional ethics, in respect of the provision of
information under subsection (1).
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(4) Evidence of the provision of information under
subsection (1) is not admissible in any -
(a) court (whether or not exercising jurisdiction in
accordance with this Act); or
(b) tribunal or other body concerned with
professional ethics -
except where that evidence is given by the person who
provided the information.
(5) In this section, "Tasmanian authority"
includes a person carrying out duties, performing
functions or exercising powers as an employee, within the
meaning of the State Service Act 2000, employed in the
Department, in the Office of the Public Trustee or in any
court.
Proceedings, &c., for contact
33. (1) A Tasmanian court hearing proceedings
concerning contact with a child must admit into evidence
and consider the findings (if any) of a competent authority
of a Convention country on the suitability of a parent to
have contact with the child.
(2) A Tasmanian court may adjourn the proceedings
concerning contact with a child pending the outcome of a
request by a parent of the child to a competent authority of
a Convention country for a finding on the suitability of the
parent to have contact with the child.
(3) On the application of a parent who is an
Australian resident seeking to obtain or keep contact with
a child, a Tasmanian court may -
(a) admit evidence; and
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2003 Child Protection (International No. s. 34
Measures)
(b) make a finding on the suitability of that
parent to have contact with the child; and
(c) specify conditions on which the contact is to be
allowed.
(4) A Tasmanian authority considering a matter
concerning contact with a child -
(a) must consider evidence and the findings (if
any) of a competent authority of a Convention
country on the suitability of a parent to have
contact with the child; and
(b) may postpone considering the matter pending
the outcome of a request by a parent to a
competent authority of a Convention country
for a finding on the suitability of the parent to
have contact with the child.
Giving information to central authorities and
competent authorities in Convention countries
34. (1) This section applies to -
(a) a court; and
(b) the Commonwealth central authority; and
(c) central authorities of Australia appointed as
mentioned in Article 29, paragraph 2, of the
Child Protection Convention; and
(d) other competent authorities of Australia.
(2) If it would be consistent with this Act or the
Child Protection Convention to do so, a Tasmanian
authority may give information to -
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s. 34 No. Child Protection (International 2003
Measures)
(a) a court or an authority of Australia to which
this section applies; or
(b) a central authority or other competent
authority of a Convention country.
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2003 Child Protection (International No. s. 35
Measures)
PART 7 - MISCELLANEOUS
Helping person in relation to Tasmanian measure
35. (1) A person who is to exercise parental
responsibilities under a Tasmanian measure may apply to
a Tasmanian authority for information about the
particular way in which the person may exercise the
person's responsibilities under the Tasmanian measure.
(2) The Tasmanian authority may, by written notice,
give information to the person about the powers conferred
on the person as a parent under the Tasmanian measure.
Helping person in relation to foreign measure
36. (1) An interested person who wants to ask a
competent authority of another country to vary or cancel a
foreign measure may apply to the Department for help in
sending the request to the authority.
(2) The Department may help the interested person
in relation to sending the request.
Delegation by Secretary
37. (1) The Secretary of the Department may delegate any
of the Secretary's powers under this Act to an
appropriately qualified employee, within the meaning of
the State Service Act 2000, employed in the Department.
(2) In this section -
"appropriately qualified" includes having the
qualifications, experience or standing
appropriate to the exercise of the power;
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"Secretary's powers" means the powers the
Secretary must or may exercise under
section 29.
Regulation-making power
38. (1) The Governor may make regulations under this
Act.
(2) Without limiting subsection (1), a regulation may
prescribe -
(a) that a particular measure, or a particular type
of measure, recognised by registration under
section 25 has effect as a particular type of
Tasmanian measure, as mentioned in
section 25(2)(a); and
(b) the way the measure or the type of measure
has effect as the particular type of Tasmanian
measure, including the way it may be varied or
otherwise dealt with under an Act applying to
that particular type of Tasmanian measure.
(3) The regulations may be made so as to apply
differently according to matters, limitations or restrictions,
whether as to time, circumstance or otherwise, specified in
the regulations.
(4) The regulations may authorise any matter to be
from time to time determined, applied or regulated by any
person or body specified in the regulations.
Administration of Act
39. Until provision is made in relation to this Act by order
under section 4 of the Administrative Arrangements Act
1990 -
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2003 Child Protection (International No. s. 39
Measures)
(a) the administration of this Act is assigned to
the Minister for Health and Human Services;
and
(b) the department responsible to the Minister for
Health and Human Services in relation to the
administration of this Act is the Department of
Health and Human Services.
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Measures)
SCHEDULE 1 - CHILD PROTECTION
CONVENTION
Section 4(1)
CONVENTION ON JURISDICTION, APPLICABLE
LAW, RECOGNITION, ENFORCEMENT AND CO-
OPERATION IN RESPECT OF PARENTAL
RESPONSIBILITY AND MEASURES FOR THE
PROTECTION OF CHILDREN
The States signatory to the present Convention,
Considering the need to improve the protection of
children in international situations,
Wishing to avoid conflicts between their legal systems
in respect of jurisdiction, applicable law,
recognition and enforcement of measures for the
protection of children,
Recalling the importance of international co-operation
for the protection of children,
Confirming that the best interests of the child are to
be a primary consideration,
Noting that the Convention of 5 October 1961
convening the powers of authorities and the law
applicable in respect of the protection of minors
is in need of revision,
Desiring to establish common provisions to this effect,
taking into account the United Nations
Convention on the Rights of the Child of 20
November 1989,
Have agreed on the following provisions -
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2003 Child Protection (International No. sch. 1
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CHAPTER I - SCOPE OF THE CONVENTION
Article 1
1. The objects of the present Convention are -
(a) to determine the State whose authorities have
jurisdiction to take measures directed to the
protection of the person or property of the
child;
(b) to determine which law is to be applied by
such authorities in exercising their
jurisdiction;
(c) to determine the law applicable to parental
responsibility;
(d) to provide for the recognition and enforcement
of such measures of protection in all
Contracting States;
(e) to establish such co-operation between the
authorities of the Contracting States as may
be necessary in order to achieve the purposes
of this Convention.
2. For the purposes of this Convention, the term "parental
responsibility" includes 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.
Article 2
The Convention applies to children from the moment of
their birth until they reach the age of 18 years.
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Article 3
The measures referred to in Article 1 may deal in
particular with -
(a) the attribution, exercise, termination or
restriction of parental responsibility, as well as
its delegation;
(b) rights of custody, including rights relating to
the care of the person of the child and, in
particular, the right to determine the child's
place of residence, as well as rights of access
including the right to take a child for a limited
period of time to a place other than the child's
habitual residence;
(c) guardianship, curatorship and analogous
institutions;
(d) the designation and functions of any person or
body having charge of the child's person or
property, representing or assisting the child;
(e) the placement of the child in a foster family or
in institutional care, or the provision of care by
kafala or an analogous institution;
(f) the supervision by a public authority of the
care of a child by any person having charge of
the child;
(g) the administration, conservation or disposal of
the child's property.
Article 4
The Convention does not apply to -
(a) the establishment or contesting of a parent-
child relationship;
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2003 Child Protection (International No. sch. 1
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(b) decisions on adoption, measures preparatory
to adoption, or the annulment or revocation of
adoption;
(c) the name and forenames of the child;
(d) emancipation;
(e) maintenance obligations;
(f) trusts or succession;
(g) social security;
(h) public measures of a general nature in matters
of education or health;
(i) measures taken as a result of penal offences
committed by children;
(j) decisions on the right of asylum and on
immigration.
CHAPTER II - JURISDICTION
Article 5
1. The judicial or administrative authorities of the
Contracting State of the habitual residence of the child
have jurisdiction to take measures directed to the
protection of the child's person or property.
2. Subject to Article 7, in case of a change of the child's
habitual residence to another Contracting State, the
authorities of the State of the new habitual residence have
jurisdiction.
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Article 6
1. For refugee children and children who, due to
disturbances occurring in their country, are
internationally displaced, the authorities of the
Contracting State on the territory of which these children
are present as a result of their displacement have the
jurisdiction provided for in paragraph 1 of Article 5.
2. The provisions of the preceding paragraph also apply to
children whose habitual residence cannot be established.
Article 7
1. In case of wrongful removal or retention of the child, the
authorities of the Contracting State in which the child was
habitually resident immediately before the removal or
retention keep their jurisdiction until the child has
acquired a habitual residence in another State, and
(a) each person, institution or other body having
rights of custody has acquiesced in the
removal or retention; or
(b) the child has resided in that other State for a
period of at least one year after the person,
institution or other body having rights of
custody has or should have had knowledge of
the whereabouts of the child, no request for
return lodged within that period is still
pending, and the child is settled in his or her
new environment.
2. The removal or the retention of a child is to be
considered wrongful where -
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2003 Child Protection (International No. sch. 1
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(a) it is in breach of rights of custody attributed to
a person, an institution or any other body,
either jointly or alone, under the law of the
State in which the child was habitually
resident immediately before the removal or
retention; and
(b) at the time of removal or retention those rights
were actually exercised, either jointly or alone,
or would have been so exercised but for the
removal or retention.
The rights of custody mentioned in sub-paragraph (a)
above may arise in particular by operation of law or by
reason of a judicial or administrative decision, or by reason
of an agreement having legal effect under the law of that
State.
3. So long as the authorities first mentioned in paragraph
1 keep their jurisdiction, the authorities of the Contracting
State to which the child has been removed or in which he
or she has been retained can take only such urgent
measures under Article 11 as are necessary for the
protection of the person or property of the child.
Article 8
1. By way of exception, the authority of a Contracting
State having jurisdiction under Article 5 or 6, if it
considers that the authority of another Contracting State
would be better placed in the particular case to assess the
best interests of the child, may either
-request that other authority, directly or with the
assistance of the Central Authority of its State, to
assume jurisdiction to take such measures of
protection as it considers to be necessary, or
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-suspend consideration of the case and invite the
parties to introduce such a request before the
authority of that other State.
2. The Contracting States whose authorities may be
addressed as provided in the preceding paragraph are
(a) a State of which the child is a national,
(b) a State in which property of the child is
located,
(c) a State whose authorities are seised of an
application for divorce or legal separation of
the child's parents, or for annulment of their
marriage,
(d) a State with which the child has a substantial
connection.
3. The authorities concerned may proceed to an exchange
of views.
4. The authority addressed as provided in paragraph 1
may assume jurisdiction, in place of the authority having
jurisdiction under Article 5 or 6, if it considers that this is
in the child's best interests.
Article 9
1. If the authorities of a Contracting State referred to in
Article 8, paragraph 2, consider that they are better placed
in the particular case to assess the child's best interests,
they may either
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2003 Child Protection (International No. sch. 1
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-request the competent authority of the Contracting
State of the habitual residence of the child,
directly or with the assistance of the Central
Authority of that State, that they be authorised
to assume jurisdiction to take the measures of
protection which they consider to be necessary, or
-invite the parties to introduce such a request before
the authority of the Contracting State of the
habitual residence of the child.
2. The authorities concerned may proceed to an exchange
of views.
3. The authority initiating the request may assume
jurisdiction in place of the authority of the Contracting
State of the habitual residence of the child only if the
latter authority has accepted the request.
Article 10
1. Without prejudice to Articles 5 to 9, the authorities of a
Contracting State exercising jurisdiction to decide upon an
application for divorce or legal separation of the parents of
a child habitually resident in another Contracting State, or
for annulment of their marriage, may, if the law of their
State so provides, take measures directed to the protection
of the person or property of such child if
(a) at the time of commencement of the
proceedings, one of his or her parents
habitually resides in that State and one of
them has parental responsibility in relation to
the child, and
(b) the jurisdiction of these authorities to take
such measures has been accepted by the
parents, as well as by any other person who
has parental responsibility in relation to the
child, and is in the best interests of the child.
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2. The jurisdiction provided for by paragraph 1 to take
measures for the protection of the child ceases as soon as
the decision allowing or refusing the application for
divorce, legal separation or annulment of the marriage has
become final, or the proceedings have come to an end for
another reason.
Article 11
1. In all cases of urgency, the authorities of any
Contracting State in whose territory the child or property
belonging to the child is present have jurisdiction to take
any necessary measures of protection.
2. The measures taken under the preceding paragraph
with regard to a child habitually resident in a Contracting
State shall lapse as soon as the authorities which have
jurisdiction under Articles 5 to 10 have taken the
measures required by the situation.
3. The measures taken under paragraph 1 with regard to a
child who is habitually resident in a non-Contracting State
shall lapse in each Contracting State as soon as measures
required by the situation and taken by the authorities of
another State are recognised in the Contracting State in
question.
Article 12
1. Subject to Article 7, the authorities of a Contracting
State in whose territory the child or property belonging to
the child is present have jurisdiction to take measures of a
provisional character for the protection of the person or
property of the child which have a territorial effect limited
to the State in question, in so far as such measures are not
incompatible with measures already taken by authorities
which have jurisdiction under Articles 5 to 10.
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2. The measures taken under the preceding paragraph
with regard to a child habitually resident in a Contracting
State shall lapse as soon as the authorities which have
jurisdiction under Articles 5 to 10 have taken a decision in
respect of the measures of protection which may be
required by the situation.
3. The measures taken under paragraph 1 with regard to a
child who is habitually resident in a non-Contracting State
shall lapse in the Contracting State where the measures
were taken as soon as measures required by the situation
and taken by the authorities of another State are
recognised in the Contracting State in question.
Article 13
1. The authorities of a Contracting State which have
jurisdiction under Articles 5 to 10 to take measures for the
protection of the person or property of the child must
abstain from exercising this jurisdiction if, at the time of
the commencement of the proceedings, corresponding
measures have been requested from the authorities of
another Contracting State having jurisdiction under
Articles 5 to 10 at the time of the request and are still
under consideration.
2. The provisions of the preceding paragraph shall not
apply if the authorities before whom the request for
measures was initially introduced have declined
jurisdiction.
Article 14
The measures taken in application of Articles 5 to 10
remain in force according to their terms, even if a change
of circumstances has eliminated the basis upon which
jurisdiction was founded, so long as the authorities which
have jurisdiction under the Convention have not modified,
replaced or terminated such measures.
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CHAPTER III - APPLICABLE LAW
Article 15
1. In exercising their jurisdiction under the provisions of
Chapter II, the authorities of the Contracting States shall
apply their own law.
2. However, in so far as the protection of the person or the
property of the child requires, they may exceptionally
apply or take into consideration the law of another State
with which the situation has a substantial connection.
3. If the child's habitual residence changes to another
Contracting State, the law of that other State governs,
from the time of the change, the conditions of application
of the measures taken in the State of the former habitual
residence.
Article 16
1. The attribution or extinction of parental responsibility
by operation of law, without the intervention of a judicial
or administrative authority, is governed by the law of the
State of the habitual residence of the child.
2. The attribution or extinction of parental responsibility
by an agreement or a unilateral act, without the
intervention of a judicial or administrative authority, is
governed by the law of the State of the child's habitual
residence at the time when the agreement or unilateral act
takes effect.
3. Parental responsibility which exists under the law of the
State of the child's habitual residence subsists after a
change of that habitual residence to another State.
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4. If the child's habitual residence changes, the attribution
of parental responsibility by operation of law to a person
who does not already have such responsibility is governed
by the law of the State of the new habitual residence.
Article 17
The exercise of parental responsibility is governed by the
law of the State of the child's habitual residence. If the
child's habitual residence changes, it is governed by the
law of the State of the new habitual residence.
Article 18
The parental responsibility referred to in Article 16 may
be terminated, or the conditions of its exercise modified, by
measures taken under this Convention.
Article 19
1. The validity of a transaction entered into between a
third party and another person who would be entitled to
act as the child's legal representative under the law of the
State where the transaction was concluded cannot be
contested, and the third party cannot be held liable, on the
sole ground that the other person was not entitled to act as
the child's legal representative under the law designated
by the provisions of this Chapter, unless the third party
knew or should have known that the parental
responsibility was governed by the latter law.
2. The preceding paragraph applies only if the transaction
was entered into between persons present on the territory
of the same State.
Article 20
The provisions of this Chapter apply even if the law
designated by them is the law of a non-Contracting State.
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Article 21
1. In this Chapter the term "law" means the law in force in
a State other than its choice of law rules.
2. However, if the law applicable according to Article 16 is
that of a non-Contracting State and if the choice of law
rules of that State designate the law of another non-
Contracting State which would apply its own law, the law
of the latter State applies. If that other non-Contracting
State would not apply its own law, the applicable law is
that designated by Article 16.
Article 22
The application of the law designated by the provisions of
this Chapter can be refused only if this application would
be manifestly contrary to public policy, taking into account
the best interests of the child.
CHAPTER IV - RECOGNITION AND
ENFORCEMENT
Article 23
1. The measures taken by the authorities of a Contracting
State shall be recognised by operation of law in all other
Contracting States.
2. Recognition may however be refused -
(a) if the measure was taken by an authority
whose jurisdiction was not based on one of the
grounds provided for in Chapter II;
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(b) if the measure was taken, except in a case of
urgency, in the context of a judicial or
administrative proceeding, without the child
having been provided the opportunity to be
heard, in violation of fundamental principles of
procedure of the requested State;
(c) on the request of any person claiming that the
measure infringes his or her parental
responsibility, if such measure was taken,
except in a case of urgency, without such
person having been given an opportunity to be
heard;
(d) if such recognition is manifestly contrary to
public policy of the requested State, taking
into account the best interests of the child;
(e) if the measure is incompatible with a later
measure taken in the non-Contracting State of
the habitual residence of the child, where this
later measure fulfils the requirements for
recognition in the requested State;
(f) if the procedure provided in Article 33 has not
been complied with.
Article 24
Without prejudice to Article 23, paragraph 1, any
interested person may request from the competent
authorities of a Contracting State that they decide on the
recognition or non-recognition of a measure taken in
another Contracting State. The procedure is governed by
the law of the requested State.
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Article 25
The authority of the requested State is bound by the
findings of fact on which the authority of the State where
the measure was taken based its jurisdiction.
Article 26
1. If measures taken in one Contracting State and
enforceable there require enforcement in another
Contracting State, they shall, upon request by an
interested party, be declared enforceable or registered for
the purpose of enforcement in that other State according to
the procedure provided in the law of the latter State.
2. Each Contracting State shall apply to the declaration of
enforceability or registration a simple and rapid
procedure.
3. The declaration of enforceability or registration may be
refused only for one of the reasons set out in Article 23,
paragraph 2.
Article 27
Without prejudice to such review as is necessary in the
application of the preceding Articles, there shall be no
review of the merits of the measure taken.
Article 28
Measures taken in one Contracting State and declared
enforceable, or registered for the purpose of enforcement,
in another Contracting State shall be enforced in the latter
State as if they had been taken by the authorities of that
State. Enforcement takes place in accordance with the law
of the requested State to the extent provided by such law,
taking into consideration the best interests of the child.
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CHAPTER V - CO-OPERATION
Article 29
1. A Contracting State shall designate a Central Authority
to discharge the duties which are imposed by the
Convention on such authorities.
2. Federal States, States with more than one system of law
or States having autonomous territorial units shall be free
to appoint more than one Central Authority and to specify
the territorial or personal extent of their functions. Where
a State has appointed more than one Central Authority, it
shall designate the Central Authority to which any
communication may be addressed for transmission to the
appropriate Central Authority within that State.
Article 30
1. Central Authorities shall co-operate with each other and
promote co-operation amongst the competent authorities
in their States to achieve the purposes of the Convention.
2. They shall, in connection with the application of the
Convention, take appropriate steps to provide information
as to the laws of, and services available in, their States
relating to the protection of children.
Article 31
The Central Authority of a Contracting State, either
directly or through public authorities or other bodies, shall
take all appropriate steps to -
(a) facilitate the communications and offer the
assistance provided for in Articles 8 and 9 and
in this Chapter;
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(b) facilitate, by mediation, conciliation or similar
means, agreed solutions for the protection of
the person or property of the child in
situations to which the Convention applies;
(c) provide, on the request of a competent
authority of another Contracting State,
assistance in discovering the whereabouts of a
child where it appears that the child may be
present and in need of protection within the
territory of the requested State.
Article 32
On a request made with supporting reasons by the Central
Authority or other competent authority of any Contracting
State with which the child has a substantial connection,
the Central Authority of the Contracting State in which
the child is habitually resident and present may, directly
or through public authorities or other bodies,
(a) provide a report on the situation of the child;
(b) request the competent authority of its State to
consider the need to take measures for the
protection of the person or property of the
child.
Article 33
1. If an authority having jurisdiction under Articles 5 to 10
contemplates the placement of the child in a foster family
or institutional care, or the provision of care by kafala or
an analogous institution, and if such placement or such
provision of care is to take place in another Contracting
State, it shall first consult with the Central Authority or
other competent authority of the latter State. To that
effect it shall transmit a report on the child together with
the reasons for the proposed placement or provision of
care.
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2. The decision on the placement or provision of care may
be made in the requesting State only if the Central
Authority or other competent authority of the requested
State has consented to the placement or provision of care,
taking into account the child's best interests.
Article 34
1. Where a measure of protection is contemplated, the
competent authorities under the Convention, if the
situation of the child so requires, may request any
authority of another Contracting State which has
information relevant to the protection of the child to
communicate such information.
2. A Contracting State may declare that requests under
paragraph 1 shall be communicated to its authorities only
through its Central Authority.
Article 35
1. The competent authorities of a Contracting State may
request the authorities of another Contracting State to
assist in the implementation of measures of protection
taken under this Convention, especially in securing the
effective exercise of rights of access as well as of the right
to maintain direct contacts on a regular basis.
2. The authorities of a Contracting State in which the child
does not habitually reside may, on the request of a parent
residing in that State who is seeking to obtain or to
maintain access to the child, gather information or
evidence and may make a finding on the suitability of that
parent to exercise access and on the conditions under
which access is to be exercised. An authority exercising
jurisdiction under Articles 5 to 10 to determine an
application concerning access to the child shall admit and
consider such information, evidence and finding before
reaching its decision.
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3. An authority having jurisdiction under Articles 5 to 10
to decide on access may adjourn a proceeding pending the
outcome of a request made under paragraph 2, in
particular, when it is considering an application to restrict
or terminate access rights granted in the State of the
child's former habitual residence.
4. Nothing in this Article shall prevent an authority
having jurisdiction under Articles 5 to 10 from taking
provisional measures pending the outcome of the request
made under paragraph 2.
Article 36
In any case where the child is exposed to a serious danger,
the competent authorities of the Contracting State where
measures for the protection of the child have been taken or
are under consideration, if they are informed that the
child's residence has changed to, or that the child is
present in another State, shall inform the authorities of
that other State about the danger involved and the
measures taken or under consideration.
Article 37
An authority shall not request or transmit any information
under this Chapter if to do so would, in its opinion, be
likely to place the child's person or property in danger, or
constitute a serious threat to the liberty or life of a
member of the child's family.
Article 38
1. Without prejudice to the possibility of imposing
reasonable charges for the provision of services, Central
Authorities and other public authorities of Contracting
States shall bear their own costs in applying the provisions
of this Chapter.
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2. Any Contracting State may enter into agreements with
one or more other Contracting States concerning the
allocation of charges.
Article 39
Any Contracting State may enter into agreements with
one or more other Contracting States with a view to
improving the application of this Chapter in their mutual
relations. The States which have concluded such an
agreement shall transmit a copy to the depositary of the
Convention.
CHAPTER VI - GENERAL PROVISIONS
Article 40
1. The authorities of the Contracting State of the child's
habitual residence, or of the Contracting State where a
measure of protection has been taken, may deliver to the
person having parental responsibility or to the person
entrusted with protection of the child's person or property,
at his or her request, a certificate indicating the capacity
in which that person is entitled to act and the powers
conferred upon him or her.
2. The capacity and powers indicated in the certificate are
presumed to be vested in that person, in the absence of
proof to the contrary.
3. Each Contracting State shall designate the authorities
competent to draw up the certificate.
Article 41
Personal data gathered or transmitted under the
Convention shall be used only for the purposes for which
they were gathered or transmitted.
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Article 42
The authorities to whom information is transmitted shall
ensure its confidentiality, in accordance with the law of
their State.
Article 43
All documents forwarded or delivered under this
Convention shall be exempt from legalisation or any
analogous formality.
Article 44
Each Contracting State may designate the authorities to
which requests under Articles 8, 9 and 33 are to be
addressed.
Article 45
1. The designations referred to in Articles 29 and 44 shall
be communicated to the Permanent Bureau of the Hague
Conference on Private International Law.
2. The declaration referred to in Article 34, paragraph 2,
shall be made to the depositary of the Convention.
Article 46
A Contracting State in which different systems of law or
sets of rules of law apply to the protection of the child and
his or her property shall not be bound to apply the rules of
the Convention to conflicts solely between such different
systems or sets of rules of law.
Article 47
In relation to a State in which two or more systems of law
or sets of rules of law with regard to any matter dealt with
in this Convention apply in different territorial units -
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1. any reference to habitual residence in that State
shall be construed as referring to habitual residence
in a territorial unit;
2. any reference to the presence of the child in that
State shall be construed as referring to presence in a
territorial unit;
3. any reference to the location of property of the child
in that State shall be construed as referring to
location of property of the child in a territorial unit;
4. any reference to the State of which the child is a
national shall be construed as referring to the
territorial unit designated by the law of that State or,
in the absence of relevant rules, to the territorial unit
with which the child has the closest connection;
5. any reference to the State whose authorities are
seised of an application for divorce or legal separation
of the child's parents, or for annulment of their
marriage, shall be construed as referring to the
territorial unit whose authorities are seised of such
application;
6. any reference to the State with which the child has
a substantial connection shall be construed as
referring to the territorial unit with which the child
has such connection;
7. any reference to the State to which the child has
been removed or in which he or she has been retained
shall be construed as referring to the relevant
territorial unit to which the child has been removed or
in which he or she has been retained;
8. any reference to bodies or authorities of that State,
other than Central Authorities, shall be construed as
referring to those authorised to act in the relevant
territorial unit;
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9. any reference to the law or procedure or authority
of the State in which a measure has been taken shall
be construed as referring to the law or procedure or
authority of the territorial unit in which such
measure was taken;
10. any reference to the law or procedure or authority
of the requested State shall be construed as referring
to the law or procedure or authority of the territorial
unit in which recognition or enforcement is sought.
Article 48
For the purpose of identifying the applicable law under
Chapter III, in relation to a State which comprises two or
more territorial units each of which has its own system of
law or set of rules of law in respect of matters covered by
this Convention, the following rules apply -
(a) if there are rules in force in such a State
identifying which territorial unit's law is
applicable, the law of that unit applies;
(b) in the absence of such rules, the law of the
relevant territorial unit as defined in Article
47 applies.
Article 49
For the purpose of identifying the applicable law under
Chapter III, in relation to a State which has two or more
systems of law or sets of rules of law applicable to different
categories of persons in respect of matters covered by this
Convention, the following rules apply -
(a) if there are rules in force in such a State
identifying which among such laws applies,
that law applies;
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(b) in the absence of such rules, the law of the
system or the set of rules of law with which
the child has the closest connection applies.
Article 50
This Convention shall not affect the application of the
Convention of 25 October 1980 on the Civil Aspects of
International Child Abduction, as between Parties to both
Conventions. Nothing, however, precludes provisions of
this Convention from being invoked for the purposes of
obtaining the return of a child who has been wrongfully
removed or retained or of organising access rights.
Article 51
In relations between the Contracting States this
Convention replaces the Convention of 5 October 1961
concerning the powers of authorities and the law
applicable in respect of the protection of minors, and the
Convention governing the guardianship of minors, signed
at The Hague 12 June 1902, without prejudice to the
recognition of measures taken under the Convention of 5
October 1961 mentioned above.
Article 52
1. This Convention does not affect any international
instrument to which Contracting States are Parties and
which contains provisions on matters governed by the
Convention, unless a contrary declaration is made by the
States Parties to such instrument.
2. This Convention does not affect the possibility for one or
more Contracting States to conclude agreements which
contain, in respect of children habitually resident in any of
the States Parties to such agreements, provisions on
matters governed by this Convention.
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3. Agreements to be concluded by one or more Contracting
States on matters within the scope of this Convention do
not affect, in the relationship of such States with other
Contracting States, the application of the provisions of this
Convention.
4. The preceding paragraphs also apply to uniform laws
based on special ties of a regional or other nature between
the States concerned.
Article 53
1. The Convention shall apply to measures only if they are
taken in a State after the Convention has entered into
force for that State.
2. The Convention shall apply to the recognition and
enforcement of measures taken after its entry into force as
between the State where the measures have been taken
and the requested State.
Article 54
1. Any communication sent to the Central Authority or to
another authority of a Contracting State shall be in the
original language, and shall be accompanied by a
translation into the official language or one of the official
languages of the other State or, where that is not feasible,
a translation into French or English.
2. However, a Contracting State may, by making a
reservation in accordance with Article 60, object to the use
of either French or English, but not both.
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Article 55
1. A Contracting State may, in accordance with Article 60,
(a) reserve the jurisdiction of its authorities to
take measures directed to the protection of
property of a child situated on its territory;
(b) reserve the right not to recognise any parental
responsibility or measure in so far as it is
incompatible with any measure taken by its
authorities in relation to that property.
2. The reservation may be restricted to certain categories
of property.
Article 56
The Secretary General of the Hague Conference on Private
International Law shall at regular intervals convoke a
Special Commission in order to review the practical
operation of the Convention.
CHAPTER VII - FINAL CLAUSES
Article 57
1. The Convention shall be open for signature by the
States which were Members of the Hague Conference on
Private International Law at the time of its Eighteenth
Session.
2. It shall be ratified, accepted or approved and the
instruments of ratification, acceptance or approval shall be
deposited with the Ministry of Foreign Affairs of the
Kingdom of the Netherlands, depositary of the Convention.
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Article 58
1. Any other State may accede to the Convention after it
has entered into force in accordance with Article 61,
paragraph 1.
2. The instrument of accession shall be deposited with the
depositary.
3. Such accession shall have effect only as regards the
relations between the acceding State and those
Contracting States which have not raised an objection to
its accession in the six months after the receipt of the
notification referred to in sub-paragraph (b) of Article 63.
Such an objection may also be raised by States at the time
when they ratify, accept or approve the Convention after
an accession. Any such objection shall be notified to the
depositary.
Article 59
1. If a State has two or more territorial units in which
different systems of law are applicable in relation to
matters dealt with in this Convention, it may at the time
of signature, ratification, acceptance, approval or accession
declare that the Convention shall extend to all its
territorial units or only to one or more of them and may
modify this declaration by submitting another declaration
at any time.
2. Any such declaration shall be notified to the depositary
and shall state expressly the territorial units to which the
Convention applies.
3. If a State makes no declaration under this Article, the
Convention is to extend to all territorial units of that
State.
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Article 60
1. Any State may, not later than the time of ratification,
acceptance, approval or accession, or at the time of making
a declaration in terms of Article 59, make one or both of
the reservations provided for in Articles 54, paragraph 2,
and 55. No other reservation shall be permitted.
2. Any State may at any time withdraw a reservation it
has made. The withdrawal shall be notified to the
depositary.
3. The reservation shall cease to have effect on the first
day of the third calendar month after the notification
referred to in the preceding paragraph.
Article 61
1. The Convention shall enter into force on the first day of
the month following the expiration of three months after
the deposit of the third instrument of ratification,
acceptance or approval referred to in Article 57.
2. Thereafter the Convention shall enter into force -
(a) for each State ratifying, accepting or
approving it subsequently, on the first day of
the month following the expiration of three
months after the deposit of its instrument of
ratification, acceptance, approval or accession;
(b) for each State acceding, on the first day of the
month following the expiration of three
months after the expiration of the period of six
months provided in Article 58, paragraph 3;
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(c) for a territorial unit to which the Convention
has been extended in conformity with Article
59, on the first day of the month following the
expiration of three months after the
notification referred to in that Article.
Article 62
1. A State Party to the Convention may denounce it by a
notification in writing addressed to the depositary. The
denunciation may be limited to certain territorial units to
which the Convention applies.
2. The denunciation takes effect on the first day of the
month following the expiration of twelve months after the
notification is received by the depositary. Where a longer
period for the denunciation to take effect is specified in the
notification, the denunciation takes effect upon the
expiration of such longer period.
Article 63
The depositary shall notify the States Members of the
Hague Conference on Private International Law and the
States which have acceded in accordance with Article 58 of
the following -
(a) the signatures, ratifications, acceptances and
approvals referred to in Article 57;
(b) the accessions and objections raised to
accessions referred to in Article 58;
(c) the date on which the Convention enters into
force in accordance with Article 61;
(d) the declarations referred to in Articles 34,
paragraph 2, and 59;
(e) the agreements referred to in Article 39;
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(f) the reservations referred to in Articles 54,
paragraph 2, and 55 and the withdrawals
referred to in Article 60, paragraph 2;
(g) the denunciations referred to in Article 62.
In witness whereof the undersigned, being duly authorised
thereto, have signed this Convention.
Done at The Hague, on the 19th day of October 1996, in
the English and French languages, both texts being
equally authentic, in a single copy which shall be deposited
in the archives of the Government of the Kingdom of the
Netherlands, and of which a certified copy shall be sent,
through diplomatic channels, to each of the States
Members of the Hague Conference on Private
International Law at the date of its Eighteenth Session.
Government Printer, Tasmania 77