This article will outline co-operation on placement of children in Australia. Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention provides a framework for resolving cases of international child abduction.
The Convention ensures that children who have been wrongfully taken or retained across international borders are returned to their country of habitual residence. The Australian Government also has laws in place to protect the best interests of children pursuant to the Family Law Act 1975. This applies to both domestic and international cases.
The Act also provides for the recognition and enforcement of foreign child orders. This includes those made under the Hague Convention on the Civil Aspects of International Child Abduction. Furthermore, the Australian Central Authority participates in the co-operation on placement of children with the Central Authorities of other countries.
Importance of Co-operation on Placement of Children
The Australian government may place children in a foster family or institutional care for a variety of reasons. Apart from promoting the safety and well-being of a child, some of the reasons why a child may be placed in out-of-home care include:
1. Abuse or neglect: The government may place children in out-of-home care to protect them from harm if they are at risk of abuse or neglect in their family home. Family violence and family breakdowns are one of the main causes of abuse or neglect.
2. Mental health issues: Children can also experience mental health issues, such as anxiety or depression. Moreover, a mentally ill child’s family may be unable to provide the necessary support and care. Hence, they may be placed in out-of-home care to receive the appropriate treatment and support.
3. Parental incapacity: Sometimes, there are no other suitable family members or people who can care for children. For instance, a parent is unable to no longer provide child support to his child. If this is the case, the government may make arrangements to place them in foster families or institutional care.
Section 111CU: Placing a Child in a Foster Family or Institutional Care
According to Section 111CU of co-operation on placement of children, a court must obtain the consent of a competent authority of a convention country before they place a child in a foster family or institutional care. The court may also order either of the following when consulting with a competent authority of the convention country before placing a child in foster or institutional care:
- Concerned parties to the proceedings
- The Commonwealth central authority. If this is the case, the court must provide the Commonwealth central authority with a report on the child and the reasons for the proposed placement.
Section 111CV: Serious Danger to a Child
The court or people involved in Section 111CV of co-operation on placement of children:
- A court;
- The Chief Executive officer;
- A Senior Registrar or Registrar of the Federal Circuit and Family Court of Australia (FCFCOA) (Division 1 and 2);
- The Registrar or a Deputy Registrar of a Registry of a state family court;
- Family consultants, family counsellors, and family dispute resolution practitioners;
- Arbitrator; and
- A provider of a course, program or service in which a person is ordered to participate under the Family Law Act.
The people or courts mentioned above must inform a competent authority of another country regarding any information about a serious danger to a child:
- Whose residence has moved from Australia to the other country; or
- Who is present in the other country
The people or courts involved in this Section must provide information about serious danger to a child despite any confidentiality purposes imposed on them. This includes a contract or professional ethics.
A person is not liable to civil or criminal proceedings in respect of providing this information. Evidence of information regarding serious danger to a child is not admissible in any of the following:
- Courts (whether or not exercising jurisdiction under the Family Law Act)
- Tribunals or other bodies concerned with professional ethics.
Note: Evidence of provision of information regarding serious danger to a child is not admissible in a court or tribunal unless the person who provides the information gives evidence.
Section 111CW: Decisions on Who the the Child Will Spend Time With
According to Section 111CW of co-operation on placement of children, court proceedings should deal with who the concerned child will spend time and communicate with. The court must admit into evidence and consider any findings of a competent authority of a convention country on the suitability of a parent or a person to care for a child.
The court may adjourn the proceedings regarding the parent’s suitability as a person with whom the child can spend time or communicate with. A court may conduct the following on the application of an Australian resident parent seeking to have, or continue to have, a child spend time with or communicate with the parent:
- Admit evidence
- Determine whether the concerned parent is suitable for the child to spend time with or communicate with
- Specify the circumstances under which the child is to spend time with or communicate with the person.
Section 111CX: Location Orders and Commonwealth Information Orders
According to Section 11CX of co-operation on placement of children, a court may make a location or commonwealth information order for the purposes of child protection. A location order requires a person to inform the Registry Manager of a court about a child’s location.
Whereas, a Commonwealth information order requires a Department Secretary or appropriate authority to provide the court with information about a child’s location. This information may be contained in the records of the concerned Department or instrumentality.
Section 111CY: Giving Information to Central Authorities and Competent Authorities
Section 111CY of the co-operation on placement of children applies to:
- A court
- The Commonwealth central authority
- Central authorities of Australia; and
- Other competent authorities in Australia
The court may provide information to the following if it would be consistent with the co-operation on placement of children or the Child Protection Convention:
- A court or authority of Australia
- A central authority or other competent authority of a convention country
Section 111CZ: Regulations to Implement the Hague Convention
Section 111CZ falls under Subdivision G, Division 4 of Part XIIIAA. Subsection (1) states that the regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any any advantage or benefit, under the Child Protection Convention.
The Child Protection Convention refers to the Hague Convention on parental responsibility.
Moreover, subsection (2) states that regulations made for the purposes of this section may, in particular:
- provide that the regulations do not affect the operation of laws of a State or Territory that relate to the implementation of the Child Protection Convention; and
- provide that specified provisions of the Child Protection Convention have the force of law in Australia; and
- include a list of Convention countries or territorial units of Convention countries.
Section 111CZ: Additional Provisions
Subsection (3) states that regulations made for the purposes of this section may:
- confer jurisdiction on a federal court (other than the High Court) or a court of a Territory; or
- invest a court of a State with federal jurisdiction
Moreover, such jurisdiction is in addition to any other jurisdiction provided for under this Act.
According to Subsection (4) regulations made for the purposes of subsection (3) may make different provision in respect of matters arising in relation to different States or Territories. This subsection does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
Lastly, subsection (5) states that subsections (2), (3) and (4) do not, by implication, limit subsection (1).
Section 111D: Regulations May Provide for Rules of Evidence
Section 111D of the Family Law Act states that the regulations made for the purposes of international conventions, international agreements and international enforcement may make provision in relation to the rules of evidence that are to apply in proceedings under those regulations.
Subsection (2) states that such provisions have effect despite any inconsistency with the Evidence Act 1995 or with any other law about evidence.
The Importance of Seeking Legal Advice
Australian family laws give great benefit to children especially if they are at risk of violence, abuse, or illegal relocation. That’s why it’s important to seek legal advice from JB Solicitors for family law matters.
Contact us today for more information about co-operation on placement of children.