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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Children's Protection (Lawful Surrender of Newborn Child)
Amendment Bill 2011
A BILL FOR
An Act to amend the Children's
Protection Act 1993.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment of Children's
Protection Act 1993
4Insertion of Part 3A
Part 3A—Surrender of newborn
child
9AInterpretation
9BObjects
9CLawful surrender of newborn
child
9DAdoption or
guardianship
9EApplications by mother or
father
9FInformation
to be made available
9GInclusion of information in annual
report
9HSocial
Development Committee to inquire into and report on operation of
Part
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Children's Protection (Lawful Surrender of
Newborn Child) Amendment Act 2011.
This Act will come into operation 3 months after the day on which it
is assented to by the Governor.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Children's Protection
Act 1993
After Part 3 insert:
Part 3A—Surrender of newborn
child
9A—Interpretation
In this Part—
newborn child means a child not more than 60 days
old;
prescribed person means a medical practitioner or a
registered or enrolled nurse.
9B—Objects
The objects of this Part are—
(a) to encourage the lawful surrender, rather than the abandonment, of a
newborn child; and
(b) to promote arrangements for the adoption or guardianship of a newborn
child surrendered under this Part; and
(c) to allow for circumstances in which a newborn child surrendered under
this Part is to be returned or given to his or her mother or father.
9C—Lawful surrender of newborn
child
(1) The mother of a newborn child who surrenders the
child—
(a) into the physical custody of a prescribed person at a hospital or
medical practice; or
(b) at a prescribed hospital in a place—
(i) specifically designed for the purpose; and
(ii) designated for the purpose by signs,
in accordance with the regulations; or
(c) to some other person or at some other place in accordance with the
regulations,
will not be liable to prosecution for an offence arising only from that
act.
(2) A mother surrendering a child under this section—
(a) is not required to provide identifying information in relation to the
child or herself (and a prescribed person, or some other person to whom a child
is surrendered in accordance with the regulations, is not required to ask for
such information or for information about the age of the child); but
(b) is to be encouraged—
(i) to provide information that may be of relevance to the current or
future health of the child; and
(ii) to seek medical treatment or other support services for herself
anonymously or otherwise.
(3) If the birth of a child has not been registered under the Births,
Deaths and Marriages Registration Act 1996 or a corresponding law
within the meaning of that Act prior to surrender under this section, the child
is taken to be a foundling for the purposes of the Births,
Deaths and Marriages Registration Act 1996.
(4) A child surrendered
under this section is taken to be placed under the guardianship of the Minister,
and the Minister is the lawful guardian of the child to the exclusion of the
rights of any other person, until—
(a) the child is returned or given to his or her mother or father under
this Part; or
(b) guardianship of the child is granted to another person under this or
any other Act or law of the State or the Commonwealth; or
(c) the child is adopted; or
(d) the child attains the age of 18 years,
whichever first occurs.
(5) A person to whom a child is surrendered under this section incurs no
civil liability for an act or omission in good faith connected with the
surrender of the child and the placing of the child under the guardianship of
the Minister.
9D—Adoption or guardianship
(1) The Minister must, as soon as practicable after the surrender of a
child under this Part, take action to enable the child to be adopted.
(2) Despite section 15 of the Adoption
Act 1988, the Court under that Act may make an adoption order for a
child surrendered under this Part without the consent of each person who is a
parent or guardian of the child within the meaning of that Act.
(3) An adoption or guardianship order in relation to a child surrendered
under this Part must not be made unless—
(a) at least 6 weeks have elapsed since the date of surrender of the
child; and
(b) if an application has been made to the Minister under this Part by the
mother or father of the child—until that application has been determined
and the time for making an application for review has expired and no application
for review has been made or, if an application for review has been made, that
application has been finally determined.
(4) If it is practicable for a child surrendered under this Part to be
adopted by, or placed under the guardianship of, a relative of the child,
preference should be given to that outcome.
(5) If it becomes known to the Minister that a person is considering
adopting, or becoming the guardian of the child, the person must be given notice
in writing of the effect of this Part.
9E—Applications by mother or
father
(1) The mother of a
child surrendered under this Part may, while the child is under the guardianship
of the Minister, apply to the Minister for the return of her child and, subject
to this section, the child must be returned to his or her mother.
(2) The father of a
child surrendered under this Part may, while the child is under the guardianship
of the Minister, apply to the Minister to assume responsibility for his child
and, subject to this section, the child must be given to his or her father
if—
(a) the father's application is made at least 6 weeks after the
surrender of the child and no application has been made by the mother for the
return of the child; or
(b) the father's application is made before 6 weeks has elapsed but
6 weeks elapses without an application being made by the mother;
or
(c) —
(i) the mother has made an application for the return of the child at any
time within the 6 weeks or after the 6 weeks but before the father;
and
(ii) the Minister has refused the application; and
(iii) the time for making an application for review of the Minister's
refusal has expired and no application for review has been made or, if an
application for review has been made, that application has been finally
determined.
(3) If, within 6 weeks after the surrender of a child under this
Part, the father of the child applies to the Minister to assume responsibility
for the child, the father must be given notice in writing of the effect of this
section.
(4) The Minister may require a person who claims to be the mother or
father of a child surrendered under this Part to provide such information, or
undergo such tests, as the Minister considers necessary to establish that the
person is the mother or the father of the child.
(5) Before a child may be returned or given to his or her mother or father
on an application under this section, the child must be placed in the care of
his or her mother or father (as the case requires) under section 51 and
that arrangement must remain in place for a continuous period of
3 months.
(6) The Minister
may refuse an application under this section by the mother or father of a child
if the Minister—
(a) suspects on reasonable grounds that to place the child in the care of
his or her mother or father under section 51 would place the child at risk;
or
(b) forms, during the
period that the child is in the care of his or her mother or father under
section 51, a suspicion on reasonable grounds that to return or give the
child to his or her mother or father would place the child at risk.
(7) If the Minister refuses an application under this section by the
mother or father of a child, the Minister must give the mother or father a
notice in writing setting out the reasons for that refusal and information about
the right to apply for review of the refusal.
(8) The mother or father may, within 28 days after receiving the
notice, apply to the Court for a review of the Minister's decision.
(9) On an application for review, the Court may—
(a) order the Minister to return or give the child to his or her mother or
father; or
(b) confirm the Minister's decision and make a care and protection order
as if the Minister had made an application for such an order in relation to the
child.
9F—Information to be made
available
The Minister must take reasonable steps—
(a) to make persons who provide services to pregnant women and others
aware of this Part so as to encourage the lawful surrender, rather than
abandonment, of a newborn child; and
(b) to ensure that information explaining the effect of this Part, and
giving advice about care and services following the birth of a child, is readily
available to a mother surrendering a child under this Part; and
(c) to ensure that any information provided by the mother that may be of
relevance to the current or future health of the child is made available as
necessary in the interests of the child.
9G—Inclusion of information in annual
report
The annual report under the Public
Sector Act 2009 for the administrative unit of the Public Service
that is responsible, under the Minister, for the administration of this Act must
include—
(a) the number of children surrendered under this Part during the
financial year to which the report relates; and
(b) in respect of each such child the circumstances in which each child
has been surrendered; and
(c) if any child surrendered under this Part has ceased to be under the
guardianship of the Minister during the financial year to which the report
relates, the reason for the cessation; and
(d) the number of applications made to the Minister under section 9E
during the financial year to which the report relates and the outcome, if known,
of each such application; and
(e) the outcome of any application made to the Minister under
section 9E in a previous year that is finally determined in the financial
year to which the report relates.
9H—Social Development Committee to inquire into and
report on operation of Part
The Social Development Committee of the Parliament must, within
3 years after the commencement of this Part, inquire into, consider and
report on the operation of the Part.