By Cassandra Bennett and Kerri Phillips -
Snapshot
- While recent amendments extend the jurisdiction of the Children’s Court to make orders for children who are not present or ordinarily living in NSW, practitioners need to be mindful of the provisions of the Child Protection (International Measures) Act when children are living overseas.
- The Child Protection (International Measures) Act implements the Child Protection Convention and applies to all NSW courts. It sets out when the Children’s Court can exercise jurisdiction for children living overseas.
- The Child Protection Convention can improve the protection of children placed overseas and prevent conflicting decisions being made in different countries.
On 3 April 2024 the Children and Young Persons (Care and Protection) Amendment Act 2024 (NSW) (‘Amendment Act’) came into force. The Amendment Act was passed to remedy some of the difficulties that arose following the decision in DN v Secretary, Department of Communities and Justice [2023] NSWCA 321 (‘DN’). Although the case was about children living in the UK, a discussion about the jurisdiction of the Children’s Court when children were placed interstate flowed from it.
The amendments extend the jurisdiction of the Children’s Court to make orders for children who are not present or ordinarily living in NSW, but have maintained a ‘sufficient connection’ with NSW. Section 4 of the Children and Young Persons (Care and Protection) Act 1998 now includes a non-exhaustive list of things for the Court to consider when determining whether it has jurisdiction.
When considering whether a NSW Court has jurisdiction to make orders for children living overseas (like the children in DN), practitioners still need to be mindful of the provisions of the Child Protection (International Measures) Act 2006 (NSW) (‘Child Protection Act’), which implements Australia’s international obligations under the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (‘Convention’).
