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
Introduction – Aims of the
Presentation
 Overview
of
architecture.
the
Regulation
and
its
purpose
and
 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 precondition 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
BIIR in an Irish context.
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.
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.
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).
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.
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”.
Introduction
 Architecture of BIIR – Preamble – 33 Recitals. Scope
and definitions (Chapter 1), Jurisdiction (Chapter II),
Recognition and Enforcement (Chapter III), Cooperation 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).
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.
Material Scope of BIIR
 The Regulation shall apply, according to Article 1(1) in
civil matters relating to:
a. Divorce, legal separation or marriage annulment
b. the attribution, exercise, delegation, restriction or
termination of parental responsibility.
Material Scope of BIIR
Article 1(2) of BIIR provides that the Regulation “may, in particular,
deal with:
a. rights of custody and access;
b. guardianship, curatorship and similar institutions;
c. the designation and functions of any person or body having
charge of the child’s person or property, representing or assisting
the child;
d. the placement of a child in a foster family or in institutional care;
e. measures for the protection of the child relating to the
administration, conservation or disposal of the child’s property”.
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).
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).
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).
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))
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).
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
intended to modify national procedures applicable. Art.
11(3)”
is
not
Article 11(3) requires a court to which an application is made for the
return of a child to act expediously.
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).
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.
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.
Article 15 BIIR
 The Child shall be considered to have a particular
connection to a Member State if that Member State:
a. has become the habitual residence of the child; or
b. is the former habitual residence of the child; or
c. is the place of the child’s nationality; or
d. is the habitual residence of the holder of a parental
responsibility; or
e. 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.
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 MW and GL, Judgment delivered on the
31st July 2013.
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 decided to 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.
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).
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).
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).
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)).
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”.
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 General C92/12 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.
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.
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.
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.
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.
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 only for the
period stated in the judgment on placement.
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.