The placements of children in State care into the jurisdiction of the UK are subject to relevant applications under domestic and international instruments including Council Regulation (EC) No 2201/2003 (the Brussels II bis Regulation), the Child Abduction and Enforcement of Orders Act, 1991 (as amended) and the Protection of Children (Hague Convention) Act, 2000. Tusla is currently reviewing its position, in respect of the potential impact of Brexit, on the placement of this cohort of young people into the UK.
The European Commission Directorate-General for Justice and Consumers has provided a notice to stakeholders in relation to the withdrawal of the United Kingdom (from the EU) and EU rules in the field of civil justice and private international law. This Notice, which is informing Tusla’s review, provides guidance in respect of the following:
- Proceedings pending on the withdrawal date;
- Proceedings initiated as of the withdrawal date;
- Exequatured judgements;
- Judicial cooperation procedures between Member States.
This notice sets out the legal position with regard to children in care that are placed in residential or therapeutic facilities in the United Kingdom and provides a framework for State agencies in assuring governance of these cases.
A Memorandum of Understanding (MoU) is in place between Tusla, the Department of Justice and Equality and International Social Services (ISS) Ireland which governs applications for cross border placements and requests for social work reports. Under this MOU, ISS Ireland undertakes the following functions:
- Acting as the central point of contact for all cross-border applications;
- Expediting applications for social reports and the placement of children in care with a cross border dimension;
- Supporting the Central Authority and State agencies in delivering their legal obligations with regard to applications as provided for in the legislation;
- Defining each stakeholders' expectations given their legal responsibilities;
- Defining inputs, outputs and expected outcomes for the stakeholders.
A possible review of this MoU in the context of Brexit is also being considered by Tusla.
Tusla continues to engage with the Department of Justice and Equality in relation to the impact of Brexit on relevant applications under domestic and international instruments. Tusla will also continue discussions with officials in the Department of Children and Youth Affairs, and other Government Departments as required, in the coming weeks to establish appropriate jurisdiction, judicial cooperation with third countries and the appropriate procedures to be followed under national law and international conventions in relation to actions surrounding the cohort of young people in question.
While it is not possible to determine, at this point, what form the UK’s exit from the EU will take, my officials are satisfied, on the basis of legal advice received, that the provisions of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children will provide a legal framework, post Brexit, for the placement of children in specialist facilities in the United Kingdom.