The Public Law Aspects of the Brussels IIbis Regulation Through an Irish Lens

Summary

INTRODUCTION

Within European Union (EU) law, family-based child protection remains largely a domestic matter. However, over the past 15 years, the scope of EU law has been expanded to include elements of family law, children's rights and child protection. In a novel development, Brussels II (Regulation No 1347/2000) and Brussels IIbis (Regulation No 2201/2003) brought specific aspects of international child and family law into the competencies of the EU. In addition, under the 2009 Lisbon Treaty, the aims of the EU were broadened to include the ‘protection of the rights of the child’, the European Council was empowered to establish measures concerning family law with cross-border implications, and the Charter of Fundamental Rights of the European Union guaranteed specific rights to children. This chapter assesses the application in Ireland of the Brussels IIbis Regulation in public law child care proceedings. It explores the interpretation of the principle of the best interests of the child under Article 15 of the Regulation and the implications for children's rights of secure care placements under Article 56. The chapter draws on case law from the Court of Justice of the European Union (CJEU); the jurisprudence of the English superior courts, which has persuasive authority in Ireland; the jurisprudence of the Irish superior courts; and reports on judicial proceedings in Ireland, including in the court of first instance (District Court), which can hear cases under the Brussels IIbis Regulation.

The Brussels IIbis Regulation seeks to harmonise policy across the EU in relation to the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility. Shannon notes that it extends the principle of comity in both public and private child law matters. The Regulation provides rules on jurisdiction, recognition and enforcement of judgments and cooperation between central authorities in matters of parental responsibility. It also provides guidance on defining jurisdiction in cases of child abduction, the wrongful removal or retention of the child between Member States, and access rights. Since 1 March 2005, Brussels IIbis has been directly applicable in EU Member States, with the exception of Denmark. Given its status as a regulation, it has immediate legal effect and prevails over national law.