Clarification sought on status of Irish orders in another jurisdiction – 2014vol1#16

A judge told the Child & Family Agency that Article 56 of the Brussels Convention (Brussels II bis) would have to be complied with before a child could travel to another jurisdiction to visit her grandmother and her mother who was incarcerated.

The CFA solicitor had told the court that the child’s mother had given her consent for the child to travel. The child would stay with her grandmother. A social worker would travel over with the child and her GAL would also come over, but there would be a bit of a gap between the social worker returning to Ireland and the GAL arriving, the GAL would then travel back with the child. The GAL solicitor was worried about the level of responsibility that put on the GAL.

When the judge asked the CFA solicitor what was the status of the recognition of the ICO in the other jurisdiction, the solicitor did not know. The judge then told her that unless Article 56 was fully complied with the child could not travel.

After a discussion, the CFA decided to revise the plan and told the court that a social worker would be present with the child throughout her stay. The GAL would travel over to get a sense of the family situation and visit the uncle next door. Full assessment of the extended family needed to be completed to see if they could act as long term carers for the child, bearing in mind how settled she was in school here, it also depended on the mother’s trial.

While the judge granted the ICO extension, she reminded the CFA solicitor that Article 56 had to be fully complied with.

Judge: “I take it you are anxious that article 56 of the Brussels Convention is complied with and the order of the court is complied with and the social work department accept the referral.”

CFA solicitor: “The social work department [in the other jurisdiction] have accepted the referral, but not under Article 56.”

Judge: “An Article 56 [compliance] is vital. On behalf of the CFA engage with the Central Authority and get consent to Article 56 prior to the holiday.”

CFA solicitor: “The holiday won’t take place without it, unless Article 56 has been complied with.”

The judge told her to ask the Irish central authority to contact the central authority in the other jurisdiction and that she had to fill in the paperwork as per the regulation by downloading the appropriate forms, which might then have to be translated for the other jurisdiction.

Judge: “The holiday would enable a stress testing of a relocation to see how it would work out for her, her wishes have to be determined and the CFA would have to make an application under Article 15 to whatever court they feel appropriate.”

Brussels II

The European Union (EU) has brought together in a single legal instrument the provisions on divorce and parental responsibility, with a view to facilitating the work of judges and legal practitioners and to regulating the exercise of cross-border rights of access. This regulation represents a major step forward in the fight against abductions of children.

Article 56

Placement of a child in another Member State

1. Where a court having jurisdiction under Articles 8 to 15 contemplates the placement of a child in institutional care or with a foster family and where such placement is to take place in another Member State, it shall first consult the central authority or other authority having jurisdiction in the latter State where public authority intervention in that Member State is required for domestic cases of child placement.

2. The judgment on placement referred to in paragraph 1 may be made in the requesting State only if the competent authority of the requested State has consented to the placement.

3. The procedures for consultation or consent referred to in paragraphs 1 and 2 shall be governed by the national law of the requested State.

4. Where the authority having jurisdiction under Articles 8 to 15 decides to place the child in a foster family, and where such placement is to take place in another Member State and where no public authority intervention is required in the latter Member State for domestic cases of child placement, it shall so inform the central authority or other authority having jurisdiction in the latter State.