Brussels II Revised and Children’s Rights

1. Brussels II Revised and Children’s Rights Natalie McDonnell BL Children’s Rights under EU Law and Policy in Ireland Children’s Rights Alliance – 13th December 2013

2. Introduction – Aims of the Presentation • Overview of the Regulation and its purpose and architecture. • Audit the protections for the rights of the child contained in the Regulation – mainly procedural in nature eg right to be heard in the context of substantive proceedings as a pre-condition for recognition or enforcement of Judgments under the Convention, jurisdiction defined by proximity and habitual residence of the child, potential to transfer a case if in the best interests of the child. • Point to recent case-law relevant to children’s rights and BIIRin an Irish context.

3. Introduction • Brussels II Convention signed on may 28th 1998; Brussels I permitting the recognition and enforcement of judgments in Civil and Commercial Matters has existed since 1968. • The EU organs, including the Commission, based the EU competence to implement the Brussels I and Brussels II Regulations on Articles 21 (2) in conjunction with Article 294 TEFU. • Original 1968 Brussels I Regulation had excluded matters related to Family and Child law.

4. Introduction • Judicial decisions on matrimonial/child custody and access matters were not automatically recognised in other EU Member States. • Brussels II Convention adopted as a Regulation on March 1st 2001 • Regulation applied to all civil proceedings seeking a divorce, legal separation or annulment of marriage and an order/declaration concerning parental responsibility sought in connection with any of the above-mentioned substantive reliefs.

5. Introduction • Aims of the Regulation; to standardise the rules relating to the jurisdiction of the courts in divorce, legal separation and annulment proceedings and to give priority, in terms of jurisdiction, to the court first hearing the case. (Shannon). • “Pluralism of laws” In the area of relationship breakdown and parental responsibility were thought to be “an obstacle in the way of European integration and and a hindrance to mobility”. (Magnus and Mankowsk; Brussels Iibis Regulation 2012 at page 16).

6. Introduction • Concerns regarding the lack of provisions in the Regulation relating to children. Focus on possible revisions. • Council Regulation (EC) No 2201/2003 of November 27th 2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility came into force on March 1st 2005.

7. Introduction • Recital 1 of BIIR notes the European Community’s objective of creating an area of freedom, security and justice, in which the freedom of persons is to be ensured. Adoption by the Community of measures in the field of judicial co-operation necessary for the proper functioning of the internal market. • Recital 5 of BIIR indicates that its purpose is “in order to ensure equality for all children, this Regulation covers all decisions on parental responsibility, including measures for the protection of the child”.

8. Introduction • Architecture of BIIR – Preamble – 33 Recitals. Scope and definitions (Chapter 1), Jurisdiction (Chapter II), Recognition and Enforcement (Chapter III), Co-operation between Central Authorities in Matters of Parental Responsibility (Chapter IV), Relation with other Instruments (Chapter V) and Transitional and Final Provisions (Chapters VI and VII respectively).

9. Material Scope of BIIR • Recital 7 - Covers civil matters whatever the nature of the court or tribunal. • Recital 10 – Not in intended to to apply to matters relating to social security, public measures of a general nature in matters of education or health or to decisions on asylum or immigration. Nor does it apply to the establishment of parenthood, the status of persons, or to measures taken as a result of criminal offences committed by children.

10. Material Scope of BIIR • The Regulation shall apply, according to Article 1(1) in civil matters relating to: • Divorce, legal separation or marriage annulment • the attribution, exercise, delegation, restriction or termination of parental responsibility.

11. Material Scope of BIIR Article 1(2) of BIIR provides that the Regulation “may, in particular, deal with: • rights of custody and access; • guardianship, curatorship and similar institutions; • the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child; • the placement of a child in a foster family or in institutional care; • measures for the protection of the child relating to the administration, conservation or disposal of the child’s property”.

12. Material Scope of BIIR • Explicitly excluded from the scope of the Regulation in Article 1(3) are the establishment or contesting of a parent-child relationship, adoption, maintenance, “measures taken as a result of criminal offences committed by children” and the naming of a child, trusts or succession and emancipation. • The Regulation applies to all Member States of the European Union, with the exception of Denmark. Art.1(3).

13. Parental Responsibility • “Parental Responsibility” is defined, in Article 2, as meaning “all rights and duties relating to the person or property of a child which are given to a natural or legal person by judgment, by operation of the law or by an agreement having legal effect”. The term is to include “rights of custody and rights of access” • The Preamble - jurisdiction in matters of parental responsibility are “shaped in the light of the best interests of the child, in particular on the criterion of proximity”. This has resulted in the habitual residence of the child being the determining factor.The Regulation seeks to invoke “complete automatic enforcement” of decisions reached in different jurisdictions. Preamble, Recital (12).

14. Scope of BIIR • The Regulation is subject to the Charter of Fundamental Rights of the European Union, and in particular it seeks to respect the fundamental rights of the child set out therein See N. v. N. (hearing a child) [2008] IEHC 382 (Unreported, High Court, Finlay Geoghegan J., 3 December, 2008).

15. BIIR and the Hague Convention • The Hague Convention of 25 October 1980 on the civil aspects of international child abduction (hereinafter referred to as the ‘Hague Convention’). applies between all Member States and remains applicable although it is now supplemented by the Regulation. Where the Regulation and Convention operate between Member States, with the exception of Denmark, the Regulation prevails. (Article 60(e))

16. Jurisdiction • Article 8 provides that the courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in the Member State at the time the court is seised. • Article 9 permits, where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the courts of the Member State of the child’s former habitual residence to retain jurisdiction for a period of three months for the purpose of modifying a judgment on access rights. This is where the holder of parental responsibility exercising said rights continues to have their habitual residence in that Member State. (Unless that person has accepted the jurisdiction of the new Member State of the habitual residence of the child by participating in proceedngs in that Member State without contesting jurisdiction).

17. Wrongful Removal or Retention of a Child • Articles 10 and 11 of BIIR – Retention of jurisdiction of the Member State in which the child was habitually resident immediately prior to to the wrongful removal or retention. • Article 11(2) ensures that the child is given an opportunity to be heard during proceedings under Articles 12 and 13 of the Hague Convention unless it is inappropriate to do so having regard to the age and maturity of the child. This provision ought to be read in tandem with Recital 19 of the Preamble which states: “The hearing of the child plays an important role in the application of the Regulation, although this instrument is not intended to modify national procedures applicable.Art. 11(3)” Article 11(3) requires a court to which an application is made for the return of a child to act expediously.

18. Voice of the Child in Child Abduction cases • In the case of N. v. N. (hearing a child) Finlay Geoghegan J., referring to previous case law and dicta of the House of Lords recognised Article 11(2) as imposing a mandatory positive obligation on the court to provide a child with the opportunity to be heard. [2008] IEHC 382 (Unreported, High Court, Finlay Geoghegan J., 3 December, 2008). • R. v. R. [2007] IEHC 423 (Unreported, High Court, Finlay Geoghegan J., 12 December, 2007). • In re D. (Abduction: Rights of Custody) [2006] U.K.H.L. 51, (see in particular judgment of Baroness Hale).

19. Article 12 • Article 12 provides that the Courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for a divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with the application where at least one of the spouses has parental responsibility in relation to the child and the jurisdiction of the courts have been expressly accepted by the spouses and holders of parental responsibility; at the time the court is seised and is in the superior interests of the child.

20. Article 15 BIIR • By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that the courts of a Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where it is in the best interests of the child, request a court of another Member State to assume jurisdiction. (or stay the case and invite the parties to do so). [Emphasis Added] • Application can be made by a party to the proceedings, of the court’s own motion, or upon application by a court of another Member State.

21. Article 15 BIIR • The Child shall be considered to have a particular connection to a Member State if that Member State: • has become the habitual residence of the child; or • is the former habitual residence of the child; or • is the place of the child’s nationality; or • is the habitual residence of the holder of a parental responsibility; or • is the place where the property of the child is located and the case concerns measures for the protection of the child relating to administration, conservation or disposal of that property.

22. Article 15 BIIR • Number of recent cases in the High Court for requests to the UK courts pursuant to Article 15. • The majority of the reported applications have been made by the HSE in order to transfer public law proceedings in respect of the child to that jurisdiction. • Supreme Court considered the contours and application of Article 15, in a case where the mother of the child objected to the case being transferred, in the case of HSE v MWand GL, Judgment delivered on the 31st July 2013.

23. Article 15 BIIR • The mother of the child had moved to Ireland just in advance of giving birth to the child LW and in circumstances where a local authority in England had decidedto remove the child into care at birth. Previous children born to the mother had been removed from her care and she had convictions for child cruelty, wilful assault, ill-treatment and neglect of a child, among other convictions. • At the time of the application the child, LW was approximately 9 months old and had been in foster care since her birth. Her mother had supervised access to the child and had indicated her intention to continue to reside in Ireland. • The child’s father resided in England and supported the application of the HSE. LW, was appointed a Guardian in the District Court proceedings and that Guardian supported the application of the HSE believing the transfer of the proceedings to be in the best interests of the child.

24. Article 15 • The Supreme Court considered the text of Article 15 and the wording of recital 13 of BIIR which states “in the best interests of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer the case to the court of another Member State if this court is better placed to hear the case….”. • The Court found that Article 15 applied to public law proceedings, relying on the purpose and text of the Regulation and on the case of C-435/06 in which the CJEU addressed the scope of the Regulation and the definition of ‘civil matters’. • The Court noted that Birmingham J., in the High Court had fully considered all of the limbs of the test outlined in Article 15 and noted that “the High Court Judge took the view that the Regulation is concerned with the welfare and best interests of children and has to be interpreted in a purposive manner”. (para. 20).

25. Article 15 BIIR • The Supreme Court agreed with the High Court that the child LW, had a particular connection with the jurisdiction of England and Wales, and that the courts of that jurisdiction were indeed better placed to hear the public law proceedings in respect of the child. • The Supreme Court noted that the High Court had examined issues relating to convenience, expense and the availability of witnesses under the rubric of “court best placed” to hear the proceedings. The Court said that the finding of the trial judge as to the court better placed was one of fact, based upon clear evidence and inferences from that evidence”. (para. 39).

26. Article 20 BIIR • Article 20 provides that in urgent cases, Member States can take provisional, including protective measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter. See A (Case C-523/07), (2009) ECR 1 2805: “The need for and urgency of definitive measures must be determined having regard to the child’s circumstances, his likely development and the effectiveness of the provisional or protective measures adopted. In that context, the protection of the best interests of the child may require that the national court which has taken provisional or protective measures inform, directly or through the central authority designated under Article 53 of the Regulation, the court of another Member State having jurisdiction” (At paras. 60-61).

27. Article 23 BIIR • Article 23 of BIIR deal with grounds for non-recognition of judgments relating to parental responsibility and provides that among the grounds of non-recognition are: • Where such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child; (Article 23(a)) • Where the judgment was given, except in the case of urgency, without the child having been given the opportunity to be heard. (Article 23(b)).

28. Article 41 BIIR • Article 41 BIIR provides for rights of access granted in an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State and requires the Judge of origin to issue a certificate concerning rights of access. Such a certificate can only issue if, inter alia, the child was given the opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age and degree of maturity”.

29. Article 56 BIIR • Pursuant to Article 56, where a Member State having jurisdiction under Articles 8 to 15 of BIIR contemplates the placement of a child in institutional care or with a foster family in another Member State, it shall first consult the central authority in that State where public authority intervention in that Member State is required for domestic cases of child placement. • The CEJU has considered the Article 56 procedure in the case of Health Service Executive v S.C, A.C. and the Attorney GeneralC-92/12 PPU 26th April 2012. • Concerned a reference from the Irish High Court for a preliminary ruling regarding the interpretation of Council Regulation (EC) No 2201/2003 concerning the jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility.

30. Article 56 BIIR • Child placed in care in Ireland pursuant to Section 18 of the Child Care Act 1991, as amended, in 2000. The child was described as being particularly vulnerable with exceptional protection needs and had a care trajectory which included repeated absences from placements and episodes of risk-taking, violence, aggression and self-harm. • She was placed in a secure unit but the placement ultimately failed. In the terms of the judgment, she “isolated herself and refused to engage in therapeutic work”. Suicide attempts followed. • Agreement among professionals that she required secure care but that there was no secure care unit in Ireland specific to her needs.

31. Article 56 BIIR • The High Court made an order invoking its inherent jurisdiction to transfer the child to a secure institution in England providing therapeutic and educational care. This order was made on an interlocutory basis with regular reviews of her placement. In its order the High Court indicated that that the consent required to be given under Article 56(2) of the Regulation had been given by the Central Authority for England and Wales. • A number of questions regarding the procedure under Article 56 were referred to the CJEU including whether a judgment provides for the detention of a child for a specified time in another Member State in an institution providing therapeutic and educational care come within the material scope of [the Regulation]? The Court answered this in the affirmative.

32. Article 56 BIIR • The Irish Court also asked if so, what obligations, if any, arise out of Article 56 of [the Regulation] as to the nature of the consultation and consent mechanism to ensure the effective protection of a child who is to be so detained? The Court said that consent referred to in Article 56(2) of the Regulation must be given, prior to the making of the judgment on placement of a child, by a competent authority, governed by public law. • In addition, the domestic court asked if the judgment of the court directing the placement of a child for a specified time in a residential care institution situate in another Member State must be recognised and/or declared enforceable in that other Member State as a precondition to the placement being effected and as to the legal effect of that judgment in the other Member State.

33. Article 56 • The Court said that a judgment of a court of a Member State which orders the compulsory placement of a child in a secure care institution situated in another Member State must, before its enforcement in the requested Member State, be declared to be enforceable in that Member State.

34. Article 56 BIIR • Finally, the domestic court requested confirmation as to whether the consent under Article 56 had to be renewed on each occasion that an order was extended and whether that judgment would also have to be recognised and enforced upon each renewal. • The Court responded that an application for a new consent must be made each time and that a judgment judgment on placement made in a Member State, declared to be enforceable in another Member State, can be enforced in that other Member State onlyfor the period stated in the judgment on placement.

35. Conclusion • Scope of the Regulation – not intended to deal with substantive areas of child/family law. • Rights of the child protected under the Regulation are mainly procedural but can have a powerful effect. • Case-law on the Regulation foregrounds the rights of the child within the procedural framework – within the areas of competency of the Regulation.