Insights and inspiration
The Child Protection Convention
16 September 2014
Imagine you are a parent living in the United Kingdom. You and your ex-spouse have agreed to parenting orders that allow your ex to move to Australia with your children, but subject to you spending time with the children in the school holidays and having regular phone contact. Only problem is, those orders are made in the UK, and not Australia. Can those orders be enforced in Australia if your ex decides not to comply? What protections do you have?
Up until recently, the primary mechanism utilised for parents in this situation was to bring an application in Australia seeking parenting orders that mirrored the foreign orders. This often involved the parties engaging a second set of Australian lawyers , and was generally a costly exercise.
However, since 2003 there has been in the background of Australian law the oft-overlooked Hague "Child Protection Convention: (otherwise known as the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children), which is implemented into Australian law via the Family Law (Child Protection Convention) Regulations 2003. The Child Protection Convention provides for the recognition and enforcement of parenting orders in all contracting countries, and seeks to establish cooperation between the various countries. Until recently however, there had been little in the way of judicial guidance as to how to actually use the Convention.
In Merrick & Wellington  FamCA 514, her Honour Justice Bennett has attempted to shed some light on the Convention, and exactly how it operates here. In this matter, the mother sought the registration of UK parenting orders in Australia. This application was brought to Her Honour's attention via a request from a UK organisation set up to liaise with other Convention countries to ensure the smooth running of cross-border parenting cases. Her Honour fast tracked the matter and granted leave for the parties' UK lawyers to appear before her, notwithstanding that neither was entitled to practise in Australia. Orders were made for the registration of the UK Order, as well as further parenting orders to convert the UK Orders into the language of the Australian legislation in sufficient detail for them to be readily enforceable here.
Thus, the key points to take away from this case are:
- It is our legislation and the regulations, rather than the 1996 Convention itself, which have the force of law in Australia.
- Whilst Orders made in another convention country are automatically recognised here, if they are to be enforced there needs to be a declaration of enforceability or registration of the relevant Order.
- The process for seeking a declaration of enforceability or registration is to be a "simple and rapid procedure".
- Whereas previously parties often engaged separate lawyers in Australia to facilitate the making of mirror orders, utilising the Convention allows for a much more streamlined and direct process to achieve the same outcome.
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