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Putting Children First: Protecting Children's Interest in Relocation and Abduction cases London, September 2016

London, 29-30 September 2016

National Council for Voluntary Organisations (NCVO)

8 All Saints St

London, N1 9RL

 

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On the 29th and 30th September 2016, the AIRE Centre, in collaboration with Child Circle (Belgium), the Centre for Women War Victims, ROSA (Croatia) and the University College of Cork (Ireland), held the second event organised in the context of the Separated Children in Judicial Proceedings Project, which is part-funded by the Rights, Equality and Citizenship Programme of the European Union.

 

The Separated Children in Judicial Proceedings Project aims to promote the exchange of good practices and discuss emerging legal issues among legal experts and practitioners working on different aspects of children protection, raising awareness as to the importance of child-centred justice and the fundamental role of a child-protective approach in procedures involving separated children.

 

On this occasion, the topic of the event was the approach of national and international law to the best interests of the child in relation to children relocation away from one or both parents/siblings and their abduction by one parent.

 

The event discussed:

 

  • The applicable national and international standards and the recent case law from the UK, the ECTHR and the CJEU;

  • The approach taken by courts to the separation of children from one or both parents and from their siblings or their cultural and social homes;

  • The interrelationship between the 1980 and 1996 Hague Conventions and the Brussels Regulation (including its proposed reforms);

  • Comparing and contrasting public and private family law principles with the approach taken by the courts to separation and relocation in situations not falling within the scope of family law (such as prisoners’ children, deportations that split families, Dublin Regulation Transfers of unaccompanied children).

 

Day 1 – Roundtables of experts on relocation and abduction

 

On Day 1, the event took the form of two round tables for invited experts. The morning session, focussed on the issue of children relocation, while the afternoon session looked at standards and case law relevant to situations of abduction. This format allowed experts to share and exchange their knowledge and explore challenges and possible solutions.

 

The morning session was opened by the Nuala Mole, Senior Lawyer and founder of the AIRE Centre, who introduced the issue under discussion, setting out how the overarching aims of the event is to take principles and practice from one area of law and import into another, with a view to strengthening the best interest of the child, improving the standards employed and the practical functioning of the related instruments in the field of children protection.  

The debate focused on ‘relocation in private law’, discussing good practices and case-law in England and Scotland, highlighting the role of the Cafcass system and the available avenues to make the child’s views heard in relocation proceedings at the international and European level.

 

An engaged debated among distinguished experts animated the session, with compelling contribution been made by Andrew Bagchi QC, Garden Court Family Law Chambers; Rachael Kelsey, founding director of Sheehan Kelsey Oswald Family Law Specialists Sheehan Kelsey Oswald, Edinburgh; Deidre Du Bois, Attorney at law at Krieps, Du Bois & Dias Videira in Luxembourg; Kerstin Bartsch, Senior Legal Officer at the Hague Conference on Private International Law (HCCH); Maebh Harding, Associate Professor at the University of Warwick and Anja Tolić, Attorney at law at Law Firm Jelavić & partneri j.t.d.

 

The discussion also benefitted from the participation of Laura Dubinsky, Barrister at Doughty Street Chambers, who gave a speech about the landmark ruling in the ‘ZAT case’, on transfer proceedings concerning Calais children under the Dublin Regulation. Ms Dubinsky also addressed the jurisprudence of the CJEU in the cases of Rendon Marin and CS, exploring the harmful consequences on children of deportation decisions concerning EU citizens, where the child is not directly addressed with expulsion but is de facto impacted by it as the parent(s) face expulsion.

 

The AIRE Centre Legal Project Manager Markella Papadouli spoke about the effectiveness of the guardianship scheme in Greece, drawing on the ECtHR case Al Ahmad v. Sweden and Greece, where the Greek authorities prevented a 12-year-old Syrian child to reach his brother in Sweden and apply for asylum there. The case resulted in the child being forced into rough sleeping in Greece and eventually resorting to smugglers in order to move to Sweden. Although the case was referred to the ECtHR, the relevant application was considered inadmissible and rejected, marking a controversial note in the protection of asylum-seeking children at the European level.     

 

The afternoon session moved on to discuss key issues in abduction cases, looking at the Brussels Regulation and proposed reform and at the recent case law from the UK in the field.

 

The presence and valuable contribution of leading specialists in this field, including Anne-Marie Hutchinson OBE QC, Partner, Dawson Cornwell, London, Michael Gration, Family Barrister at 4 Paper Building and Richard Harrison QC, 1 Kings Bench Walk, London and Edward Devereux, Barrister at Harcourt Chambers, contributed to give a stronger practical purpose to the discussion.  

 

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Day 2 – Workshop with practitioners  

 

Day two (30th of September) built on the expert discussion of the first day, opening the floor to practitioners from the relevant disciplines to learn from the assembled experts - practitioners, national and international judges, the Hague Conference, academia, NGO’s and public institutions - the do’s and don’ts of working through a range of relocation and abduction situations.

 

The morning session opened with an introductory speech on relocation and abduction cases by Edward Devereux, Barrister at Harcourt Chambers and Anna Worwood, Solicitor and Collaborative Lawyer at Penningtons Manches LLP.

 

In the afternoon, the participants broke into working groups and were assigned a case study. The findings and issues emerging from the exercise were then discussed in detail with the plenary, where the panellists had the possibility to expand upon the groups’ conclusions and address the audience’s questions. This provided the attendees with the opportunity to learn about principles and perspectives in private law relocations, including how to safeguard the child’s best interest in the relevant procedures and how to make the voice of the child heard.  

 

The afternoon sessions continued to examine legal instruments and case-law of relevance in the context of children relocation and abduction, with particular reference to:

 

  • The Brussels II bis Regulation and proposed recast;

  • The CJEU Gogova case (CJEU)

  • 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.

 

Remarkable contributions in this respect were made by Kerstin Bartsch, who explained how discussed the potential role of the 1996 Hague Convention in advancing the best interest of the child, and by Deidre Du Bois, who presented the Gogova case and discussed the right to passport.  

 

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Final presentations by Markella Papadouli, Rachael Kelsey and Brian Jubb, who spoke respectively about the link between trafficking and abduction in child-related contexts, the differences in the discipline of children relocation in UK and Scotland regimes, and the legal interface between asylum and abduction in the Calais children cases offered precious insights as to the variety of situations where separated children’s rights are put in jeopardy nowadays.

 

The event attracted a diverse and engaged audience, with approximately 25 people being invited to join the expert roundtable on Day 1 and 40 people participating to the workshop on Day 2.     

Find more about the AIRE Centre Separated Children in Judicial Proceedings Project here