Child Care Solicitors

Brussels II bis (also known as Council Regulation (EC) No 2201/2003 of 27th November 2003) and its Impact

The Regulation applies as of 1st March 2005 to all member states of the European Union, with the exception of Denmark. It is there to establish uniform procedures to ensure a child’s prompt return to the state of their habitual residence as well as to secure protection for rights of access.

Many countries including the United Kingdom, Australia, America are signatories to the Hague Convention. Brussels II bis relates solely to the European Countries who are signatories.

Child Abduction

The Hague Convention ratified by member States on 25th October 1980 and additional ones thereafter) continues to apply. However certain provisions of the regulations come into play in cases of child abduction between member states. The regulations prevail over the rules of the convention.

The regulation aims at deterring parental child abduction between member states and if such an abduction take places, to ensure the prompt return of the child to his or her member state of origin. For the purposes of the regulation child abduction covers both wrongful removal and wrongful retention (Article 2). What follows applies to both situations.

Where a child is abducted from one member state (the state of origin) to another member state (the requested member state) the regulation shows that the Court for the member state of origin retains jurisdiction to decide on the question of custody notwithstanding the abduction. If the Court of a requested member state decides the child should not return it shall immediately transmit a copy of this decision to the competent Court of the member state of origin If the Court orders the child’s return this decision is directly recognised and enforceable in the member state of origin.

If the Court decides not to return the child it transmits a copy of the decision to the competent Court in the member state of origin. Once the Court receives a copy of the decision on return it will invite the parties to submit comments within three months. The decision is accompanied by a certificate which is automatically recognised and enforceable in the member state.

The regulations also emphasise the importance of giving children the opportunity to express their views and proceedings concerning them. It is possible to oppose the recognition and enforcement of the judgement relating to parental responsibility on the basis that the child was not given the opportunity to be heard. An exception will be if this was inappropriate due to child’s age and maturity. The exception should be interpreted restrictively. In general the child’s views must be taken into account given their age and maturity.

Another task of the central authority is to facilitate agreements between holders of parental responsibility through mediation. This will be especially important in child abduction cases to ensure that the child can continue to see the non-abducting parent after the abduction and to see the abducting parent after the child is returned to the member state of origin. However the mediation process is not used in any way to unduly delay the return of the child.

The main principles of the new rules and child abduction are that the jurisdiction remains with the Court of the member state of origin.

The Court of the requested member state must ensure the prompt return of the child.

If the Court of the requested member state does not return the child it must transmit a copy this decision to the competent Court in the member state of origin which shall notify the parties.

If the Court of the member state of origin decides the child shall return it is directly enforceable in the requested member state.

The central authority of the member state of origin and the requested member state shall cooperate and assist the Court in their task.

It is very complex regulation and you are very strongly recommended to read it through.

The Court shall issue a decision within a six week deadline. And it must be emphasized that whilst national law may allow the possibility for Appeal a decision entailing the return of the child is enforceable pending any Appeal.

Joanna Abrahams