This chapter explores the Member States’ use of EU private international family law in the protection of children with links abroad from abuse or neglect by their family. These measures include rules governing the assumption of jurisdiction over the parental responsibility of a child, including both private and public law measures. The chapter argues that the abused and neglected child was not a central focus when regulating the cross-border family and, as a consequence, legal borders between Member States’ family law systems retain considerable significance for these children. Whilst each Member State has provision in place for public law child protection measures, the methods and approach adopted vary significantly between legal systems, as do the potential substantive outcomes for children. The EU’s private international family law rules are designed to obscure these differences and this has presented difficulties in supporting cross-national cooperation over child protection. The political nature of these decisions has meant that focus on the welfare of the child may consequently be lost.

INTRODUCTION

International parental child abduction represents a fundamental breakdown of family relationships. It has the potential to severely affect or destroy the relationship between the child and one parent, and to affect the child's welfare into adulthood. As the subject of child abduction proceedings, the child's rights should be protected, particularly their right to have decisions taken in their best interests, and their right to be heard in decisions affecting their interests.

In the European Union (EU), the Hague Convention on the Civil Aspects of International Child Abduction 1980 (Hague Abduction Convention) and the Brussels IIa Regulation both seek to remedy an abduction by returning the child to their habitual residence prior to the abduction. Despite the importance of protecting the rights of abducted children, the law on child abduction does not make direct reference to the best interests of the child. The interpretation and application of the return remedy and the protection of children's rights in this context has been subject to litigation in the two supranational European courts: the European Court of Human Rights (ECtHR), and the Court of Justice of the European Union (CJEU). This chapter will explore the problems and challenges that have developed in the jurisprudence of these two supranational courts in attempting to protect children's rights on child abduction. In particular, the patchwork of children's rights instruments and the relationship between the ECtHR and the CJEU have resulted in inconsistencies in approach. It will be suggested that the supranational context is a difficult environment to further develop children's rights, given the spatial and temporal distance of the courts from the dispute. Whilst these courts are important to the promotion of children's rights, it will be suggested that the domestic courts remain the key forum for the protection of children's rights on child abduction.

The first section will examine the children's rights framework and the range of children's rights instruments applied within Europe. The legal framework remedying international child abduction within the EU will also be outlined. The key case law of the ECtHR and the CJEU will be analysed in the third section for their interpretation and application of children's rights on child abduction.

INTRODUCTION

In 2004, Professor Lowe, with Everall and Nicholls, noted that international disputes over children had seen a ‘noticeable and welcome increase in judicial cooperation.’ Children's cases needed ‘bold and decisive action’ to ensure decisions were made with the minimum of delay and uncertainty. The field of international family law, and the study of the development and use of the law have been heavily shaped and influenced by the contribution of Professor Lowe. These statements proved prescient of the future developments of international disputes relating to children. The increasing number of disputes and the volume of case law and legislation originating from the European Union (EU) and Hague Conference on Private International Law have required new approaches to resolving disputes. The activity of the EU in particular has encouraged greater increase in judicial cooperation and trust, facilitated and supported by the valuable contributions from Professor Lowe's research.

In 2004, International Movement of Children raised the question of jurisdiction in England and Wales over public law proceedings with an international dimension. This was raised as an issue in relatively few cases by this time, but the Family Law Act 1986 contained no jurisdictional rules for such cases, applying as it did only to private law proceedings. Where a child at risk had a link to another jurisdiction, it was unclear what should be the jurisdiction rule to enable the English child protection system to intervene to protect a child. However, the impact of the Brussels IIA Regulation has meant that children who are habitually resident in England and Wales are subject to English public law care proceedings if identified as being at risk of serious harm. The adoption of the EU measures has provided greater certainty in the assumption of jurisdiction and, as suggested above, has also encouraged closer cooperation between judicial authorities in the Member States. Whilst the rules adopted in the Brussels IIA have provided some clarity on the ground of jurisdiction in public law cases, the circumstances in which private international family law rules may be used in disputes have become increasingly complex. This chapter will consider the circumstances in which public law assumes an international dimension, and the way in which these disputes are resolved.

The role of the European Union (EU) in regulating family life has developed steadily since the Treaty of Rome in 1957. The EU's concern with family life originated in the provisions for the free movement of workers between the Member States, by which family members also had the right to migrate and accompany the worker. This has expanded to include private international family law rules, and the protection of family rights by the Charter of Fundamental Rights of the European Union. Under Article 7, the EU is obliged to respect private and family life, and Article 9 protects the right to marry and found a family in accordance with national laws.

Since 1957, there have also been significant social and legal changes in the acceptance and recognition of different types of familial relationships, particularly same-sex relationships. As explored by the contributions in this book, the legal changes in the recognition of same-sex registered partnerships and same-sex marriage have not been uniform and there remains significant variation in the law across the Member States of the EU. Whilst the EU's regulation of family life has expanded, it still has no competence to regulate the content and forms of family relationships. It must therefore respond, recognise and adapt to legal relationships as defined across the Member States. This is important in a space where families are multi-jurisdictional and social and moral norms surrounding the family and sexuality are not uniform, and exposes the differences in national culture and regulation of same-sex relationships in Europe.

The EU 's response to the concept of same-sex registered partnerships, and the lack of a coherent legal approach to this concept, has not been fully identified or explored across the spheres of EU activity. 3 In three contexts – the free movement of persons, non-discrimination in employment, and in cases brought against the EU by its own staff – the EU legislature and the Court of Justice of the European Union (CJEU) have addressed and recognised the effects of registered partnerships created by national law in European law. This process is continuing as more Member States make provision for same-sex marriage.