Going abroad: the Distinction between a 'Holiday' and a 'Placement' under Article 56 of the Brussels II Regulation

• Date: 01 January 2012

Going abroad: the Distinction between

a “Holiday” and a “Placement” under

Article 56 of the Brussels II Regulation1

ELTI N RYLE*

Introduction

Since th e Supreme Court decisio n in Western Health Boar d, Applicant v

KM,2the power of the District Court to order a foreign placement pursuant

to Section 47 of the Child Care Act 19913(hereinafter “the Act of 1991”)

is firmly established . The KM d ecision, however, preceded the Brussels II

Regulation No 2201/2003,4Article 56 of which sets out a formal procedure

of international co-operation between desi gnated Central Authorities that

manage the a dministrative aspects of inter national placements involving

children in care.

It is suggested that a difficulty now exists with regard to the parameters

of compliance necessary under Article 56 of Regulation No 2201/2003

when making orders under Section 47 of the Act of 1991. The difficulty

stems from the language of Article 56 itself (discussed in further detail

below), which d oes not contain a definition f or the term “pl acement” (be

this deliberate or otherwise). In the absence of clear guidance on the

interpretatio n of this term, it b ecomes difficult to co nstruct a finite set of

circumstances and scenarios where a Section 47 Order will require

compliance with Article 56. It is suggested that a practica l difficulty may

arise for the District Cou rt in Ireland wh ere it is asked to grant an o rder

permitting a child to leave Ireland to go on a holiday abroad with State

appointed foster carers.

* BCL, LLM, LLMR. Trainee Solicitor at ByrneWallace Solicitors, 2 Grand Canal

Square, Dublin 2.

1All references to holiday in this text refer to holidays outside the Irish jurisdiction.

2Western Health Board, Applicant v KM, Respondent [2002] 2 I.R. 493

3 Section 47 of the Child Care Act 1991 states:

Where a child is in the care of a he alth board, the District Court may, of its own

motion or on the app lication of any person, give such dire ctions and make such

order on a ny question affecting the welfare of the child as it thinks proper and

may vary or discharge any such direction or order.

4 Council Regulation (EC) No 220 1/2003 of 27 November 2003 concerning

Jurisdiction and the Recogni tion and Enforcement of Jud gments in Matrimonial

Matters an d the Matters of Parental Respo nsibility, repealing Regula tion (EC) No

1347/2000 (hereafter “Regulation No 2201/2003”). The Regulation applies to orders

relating to parental responsibilit y made after 1 March 2005, including those mad e

pursuant to public law proceedings.

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