Presenting the findings of a study of 100 care cases, this book provides rigorous analysis of how jurisdictional issues are determined and how information sharing of child protection operates across borders.
It draws on the first empirical study of the operation of private international law instruments (Brussels IIa and the 1996 Hague Convention) in care proceedings in England. It also illustrates how prospective carers are assessed and the routes which are used to secure legal permanence for children living overseas. In so doing, it identifies all the ways in which children’s welfare interests are compromised in the cross-border context. But it does suggest solutions: identifying how private international law instruments, their interpretation and application, should be improved to promote the best interests of children.
This is an impressive work, which will be invaluable to both scholars and practitioners.
Foreword
Acknowledgements
Table of Abbreviations
Tables of Cases
Tables of Legislation
Chapter 1. Introduction
I. Structure and Methodology
Chapter 2. Private International Law and the Regulation of State Child Protection Measures
I. The Boll Case and the 1902 Guardianship Convention
II. The Convention Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants 1961
III. The 1996 Hague Convention
IV. The Development of Brussels IIa
V. Conclusion
Chapter 3. Forum Issues in Care Proceedings
I. Introduction – Jurisdiction and Welfare under BIIa/HC96
II. The Welfare Impact of Jurisdictional Decisions.
III. Jurisdictional Decisions and Eekelaar’s ‘Direct’ and ‘Indirect’ Welfare Paradigm
IV. Transfers of Jurisdiction and Best Interests
V. Determinations of Habitual Residence and Best Interests
VI. Jurisdiction and Families Fleeing Care Proceedings
VII. Jurisdiction in Care Proceedings which do not engage Brussels IIa and 1996 Hague Convention
VIII. Conclusion: Jurisdiction and Welfare
Chapter 4. Practice and Permanence in Care Proceedings with an International Element
I. Introduction
II. Permanence
III. Changing Approaches to Permanence – Policy, Practice and Reforms
IV. Kinship Care: Inadequate Assessments and Untested Placements
V. Conclusion
Chapter 5. Findings on The Operation of Jurisdictional Rules in BIIa / HC96 in Care Proceedings
I. Introduction
II. ‘Framing’ a Case as Having an International Element
III. Identifying and Exploring Jurisdictional Issues
IV. Jurisdictional Arguments, Litigation Strategies, Decisions which Impact on Welfare
V. Summary Conclusions: Jurisdiction in Care Proceedings
Chapter 6. Findings on Requesting and Exchanging Child Protection Information in Care Proceedings
I. Introduction
II. Information about Prior Child Protection Interventions Overseas
III. Communicating Child Protection Concerns in ‘Known Flight’ Cases
IV. Communicating Child Protection Concerns in ‘Unknown Flight’ or ‘Planned Relocation’ Cases
V. Exchanging Child Protection Information: Comparison with Domestic Cases
VI. Summary Conclusions: Co-Operation to Exchange Child Protection Information
Chapter 7. Findings on Overseas Assessments in Care Proceedings
I. Overseas Assessments: Domestic Context
II. Overseas Assessments: Which Method?
III. Deciding Whether to Conduct and Overseas Kinship Assessment
IV. Adequacy of Overseas Assessments
V. Assessing a Prospective Kinship Carer’s Relationship with the Child
VI. ‘Top-Up’ Assessments by Social Workers Travelling Overseas: ‘One of our own’.
VII. Family Members Travelling to the UK for ‘Top-Up’ Assessments
VIII. ‘Testing’ an Overseas Kinship Placement
IX. Summary Conclusions: Overseas Assessments
Chapter 8. Findings on Overseas Kinship Placements
I. Introduction
II. Consent to Place a Child in a BIIa/HC96 State.
III. Securing Legal Permanence Overseas: Recognition and Enforcement under BIIa/HC96 and Mirror Orders
IV. Conclusion
Chapter 9. Conclusions and Recommendations
Appendix: Sample Description
I. The Index Child – Age and Gender as Recorded.
II. Mothers and Fathers
III. Family Composition
IV. Siblings
V. Family Residence
VI. Ethnicity
VII. Family Nationality
VIII. Family Immigration Status
Bibliography
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