International Aspects of Child Protection – Legal and Practice Challenges from the Perspective of CFAB by Maria Wright, Senior Legal Adviser, CFAB
This article was originally published in Family Affairs Magazine in July 2023.
Legal changes and global events have given rise to new challenges for the Family Justice System in England and Wales. At Children and Families Across Borders (CFAB) we experience these challenges first-hand in our work with lawyers, social workers, other professionals, and individuals who are navigating the complexities of cross-border cases involving children.
CFAB was formerly known as ISS-UK, that is, the UK Branch of the International Social Service Network. The Network was established after the Second World War in response to the growing refugee crisis and huge numbers of children who were internationally displaced, giving rise to a need for cross-jurisdictional social work services to ensure their protection. CFAB now has partners in over 130 countries. Our partners include other ISS Network members, Central Authorities, statutory agencies, and charities. Importantly, in response to a rising demand for social work assessments from overseas, more and more of CFAB’s partners are independent social workers.
As children’s global connections change and grow, so too do the legal complexities associated with ensuring their protection and promoting their best interests. In response to this growing legal complexity, CFAB has developed a legal advice service. The service provides support and a range of resources to assist with child protection cases with an international dimension, as well as expert opinions on family law across the globe from our overseas legal partners. Arising out of this expansion, I will outline here some reflections on the legal and practice challenges we encounter at CFAB.
CFAB’s work is situated within an evolving legal environment for care proceedings with an international dimension in England and Wales. In the years following the expansion of the European Union, care cases increasingly concerned children with strong links to other EU Member States. These cases highlighted the major differences between state-based child protection systems throughout the EU and beyond. They also identified the need to consider the EU Regulation Brussels IIa, particularly in relation to the jurisdictional basis for the proceedings. However, just as courts and local authorities were getting to grips with the operation of Brussels IIa in care cases, the UK left the European Union, and Brussels IIa ceased to apply to new cases issued after the end of the transition period. The 1996 Hague Child Protection Convention emerged as the primary international legal framework governing children’s cases with an international element – an instrument with subtle but important differences compared to Brussels IIa.
The 1996 Hague Convention has its roots in a deep-seated imperative to secure the protection of children with transnational links and contains extensive cooperation functions to ensure children are protected at a global level. However, the Convention had – before Brexit – been less widely used in cases involving EU Member States because Brussels IIa took priority over the Convention in many situations.
Although the dust may have settled following the changes to family law practice after Brexit, at CFAB, we continue to see a lack of awareness of the ways that the 1996 Hague Convention may be used to protect children with international connections. This may be associated with a perception that international children’s law is a ‘niche’ area of practice, and that international issues will only arise in a minority of cases. However, according to the Office of National Statistics, over a third of children born in the UK in 2021 had a parent born overseas. British children who have always lived in the UK may have extensive international connections which must be explored. It is likely that international children’s law is highly relevant in many situations that local authorities and courts deal with every day, across the country.
Current Practice Challenges
CFAB’s legal advice service was initially formed to support local authorities with the legal challenges associated with the Brexit transition. The service has grown to provide advice on a range of cross-border children’s issues, and we have produced legal resources to answer some common queries, informed by our practical experience in this area. Some of the issues we have encountered more recently are outlined below:
- Increasingly we are asked about facilitating kinship care placements overseas, particularly through special guardianship orders. In response, we have formed partnerships with lawyers in several ‘high demand’ countries, to facilitate the provision of ‘local’ advice around mirror orders, and / or the procedure for recognition of orders under the 1996 Hague Convention. Our legal partners are referenced to ensure their expertise to report on these issues, and we are able assist with communication difficulties which may arise in a cross-border instruction due to significant differences in terminology and practice between different legal systems. We also provide advice and support on the operation of the 1996 Hague Convention and how it might be used in practice, as well as identifying areas where further advice will be needed (including immigration advice). Drawing on our practical casework knowledge we can advise on what ‘works’ in certain situations, and the legal issues which may need to be considered before a child is placed overseas.
- We often receive enquiries about the recognition in England and Wales of orders made overseas designating a relative as a guardian for a child. Recently, these have come from Ukrainian guardians who have sought refuge in the UK with the child they are caring for. The 1996 Hague Convention contains provisions for the mutual recognition of court orders between Contracting States. However, we have observed a lack of awareness of mutual recognition provisions among local authorities and other state bodies (including the Home Office). The challenge of this issue is compounded by the lack of legal aid for recognition applications under the 1996 Hague Convention Art 24.The procedure is complex for a non-lawyer to navigate, particularly if they do not have English as a first language. In these cases, we have provided support and advice on the procedure for the recognition of orders under the 1996 Hague Convention in England and Wales, and even where there is no applicable legal framework for recognition we may advise as to the potential options for kinship carers to formalise their care arrangements for a child in this country.
- The interaction between immigration and family law issues is often nuanced in a cross-border context. Immigration issues may arise when exploring placing children overseas – will the child have a right to remain in the country in question? Will they be able to return to the UK in the future if they wish to? On more than one occasion we have been asked to advise a local authority who were contemplating a child’s placement with family overseas, and who had undertaken a kinship assessment ‘in house’ which had been positive. However, in such cases, we find that the potential immigration implications of the placement are only considered after undertaking a kinship assessment. Where children are not nationals of the state in question, and there is no special visa category for the placement, it may be that the only framework to facilitate their placement with kin is by way of intercountry adoption. In light of the re-launch of the Public Law Outline, and the focus on timescales in care proceedings, the need to clarify these issues at an early stage is all the more pressing.
A core observation from my practice at CFAB is that there is a real need for the legal and social work professions to ‘talk’ to each other in cross-border child protection cases. Social workers in England and Wales practice within a legalised sphere. However, social work practice is informed and structured by its own ethical principles and professional framework. Social workers are often best placed to speak to the issues which require resolution in a cross-border case. At the same time, cross-border child protection practice is a heavily regulated area – practitioners must grapple with both domestic and international legal instruments and will encounter a global diversity of state-based child protection systems. There is a risk of practice becoming focused on legal compliance at the expense of a practical examination of how cases can operate to meet a child’s best interests. CFAB has the advantage of a multi-disciplinary practice where law and social work converge, and the two disciplines can exchange knowledge, which can then be shared externally with the agencies and individuals who need it. With a holistic awareness of international children’s law and practice, there is the potential for law to operate in this area to support children with international links and facilitate decisions which meet their best interests.
CFAB would welcome practitioners dealing with cross-border children’s cases to contact our legal advice service. We often have country-specific knowledge and experience and can provide insights into the way child protection and family law systems operate in different countries, to ensure that the best possible route is followed to provide a positive outcome for the child concerned. Please contact email@example.com or call our advice line 0207735 8941 on for further information.