Care Proceedings with an International Element

: An Empirical Study

Abstract

When a local authority issues care proceedings concerning a child with international connections, those proceedings may engage internationally or regionally agreed frameworks of private international law (PIL), particularly the EU Regulation Brussels IIa and (more recently, and to a greater extent following the UK’s departure from the European Union) the 1996 Hague Child Protection Convention. However, the impact of these instruments on care proceedings practice was only fully appreciated when state actors and institutions began to object or intervene in care proceedings concerning foreign national children. These interventions gave rise to the production of guidance from the judiciary and government on good practice in care proceedings with an international dimension. This study was prompted by this apparent ‘gap’ between law on the books and law in practice. A quantitative and qualitative case file analysis was conducted, based on 100 care cases with an international dimension heard between 2015-2018, together with qualitative interviews with 17 professionals who had experience of cross-border cases. This study analysed the ways in which the PIL instruments referred to operate in care proceedings, with a particular focus on cross-border cooperation (both in relation to the exchange of child protection information and overseas kinship assessments). The study also analysed the way that jurisdictional issues were dealt with within the cases in the sample, and the ways that the mutual recognition provisions of the PIL instruments discussed were used in the context of securing legal permanence for children to live with kin overseas. The operation of the cases has been influenced by the way care proceedings with an international dimension have been re-framed through a national process of juridification, a process which has failed to consider the unique and various challenges of cross-border cases, and the complex and multidisciplinary environment of care proceedings practice. Whilst different aspects of care proceedings present distinct challenges, overall, this study has found that a micro-focus on law and procedure has the potential to hinder an individualised approach to supporting children involved in care proceedings with an international dimension.

The law and legal discussion in this thesis is correct at 30 October 2022, but the practices observed in the case sample relate to the law at the date of the relevant sample cases when the UK was a member of the EU and BIIa was in force. 

Date of Award	5 Dec 2023
Original language	English
Awarding Institution	University of Bristol
Supervisor	Judith M Masson (Supervisor) & Devyani Prabhat (Supervisor)