Explanatory Memorandum to COM(2016)411 - Jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast)

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dossier COM(2016)411 - Jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental ...
source COM(2016)411 EN
date 30-06-2016


1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

This proposal is a recast of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (hereafter 'Brussels IIa Regulation').

The Brussels IIa Regulation is the cornerstone of judicial cooperation in family matters in the European Union. It establishes uniform jurisdiction rules for divorce, separation and the annulment of marriage as well as for disputes about parental responsibility in cross-border situations. It facilitates the free circulation of judgments, authentic instruments and agreements in the Union by laying down provisions on their recognition and enforcement in other Member States. It applies since 1 March 2005 to all Member States 1 except Denmark 2 .

Ten years after the entry into application of the Regulation, the Commission has assessed the operation of the Regulation in practice and considered necessary amendments to the instrument in its application report adopted in April 2014 3 . This is an initiative within the Regulatory Fitness Programme (REFIT). In addition, the European Court of Justice (CJEU) has so far rendered 24 judgments concerning the interpretation of the Regulation which were taken into account.

The objective of the recast is to further develop the European area of Justice and Fundamental Rights based on Mutual Trust by removing the remaining obstacles to the free movement of judicial decisions in line with the principle of mutual recognition and to better protect the best interests of the child by simplifying the procedures and enhancing their efficiency.

The Juncker Commission's Political Guidelines 4 emphasise that judicial cooperation among EU Member States must be improved step by step keeping up with the reality of increasingly mobile citizens across the Union getting married and having children, by building bridges between the different justice systems and by mutual recognition of judgments, so that citizens can more easily exercise their rights across the Union.

While the Regulation is overall considered to work well, the consultation of stakeholders and a number of studies have revealed several deficiencies in the current operation of the Regulation which should be remedied. Among the two areas covered by the Regulation, the matrimonial and parental responsibility matters, the latter were identified to have caused acute problems which need to be addressed urgently.

As regards matrimonial matters, only limited evidence of existing problems (including statistics) was available at this stage to allow for a precise indication of the need to intervene and the scale of the problems, and for a fully informed choice of any considered option. Furthermore, since the adoption of the Brussels IIa Regulation, three more EU instruments facilitating the handling of matrimonial matters in case of divorce of an international couple have been adopted. The Rome III Regulation 5 contains rules on the law applicable to divorce, and the Maintenance Regulation 6 addresses jurisdiction and applicable law concerning maintenance for spouses and children. Moreover, the Council most recently authorised enhanced cooperation with respect to the property aspects of international couples. 7

Essentially, six main shortcomings concerning parental responsibility matters could be identified:

Contents

1.

Child return procedure


In cases of parental child abduction timing is key to the successful operation of the child return procedure established in the Regulation. It appeared however that the immediate return of the child could not be ensured in all cases. Inefficiency of the return proceedings can be attributed to several aspects. The six-week time limit to issue a return order proved inadequate in practice since there are doubts among judges and practitioners whether the six weeks apply per instance, include appeals or even the enforcement of a return decision. In addition, the current Regulation sets no time limit for the processing of an application by the receiving Central Authority. Furthermore, problems in meeting the deadline have been attributed in particular to the lack in national law of a limitation of the number of appeals that can be brought against a return order. Delays in handling cases were also caused by a lack of specialisation of the courts dealing with return applications in several Member States. These cross-border abduction cases are complex and sensitive but arise only infrequently for the individual judge when handled by every individual local family court. As a result judges are less familiar with the procedures and provisions involved and have less opportunity to liaise in a routine way with other EU jurisdictions in a manner favourable to the building of mutual trust.

Finally, the so-called “overriding mechanism” constitutes an addition to what has been provided for in the 1980 Hague Convention 8 and is thought to have a stronger deterrent effect on the potential abducting parent. It lays down the procedure to be followed after a non-return order was issued in the State of refuge on the basis of Article 13 of the 1980 Hague Convention. The practical application of the “overriding mechanism” has proven difficult because the custody proceedings do not take place in the Member State where the child is present and because the abducting parent is often not cooperative. In particular, it is often difficult to hear the child.

2.

Placement of the child in another Member State


A court or authority envisaging the placement of a child in a foster family or an institution in another Member State has to consult the authorities of that State before ordering the placement. Central Authorities which have an obligation to assist courts and authorities in arranging cross-border placements have regularly reported that sometimes it takes several months until it is established whether consent is required in a particular case. If consent is required, the consultation procedure as such has to follow and is reported to be equally lengthy as there is no deadline for requested authorities to reply. As a result, in practice many requesting authorities order the placement and send the child to the receiving State while the consultation procedure is still pending or even at the moment it is initiated because they consider the placement as urgent and are aware of the length of proceedings. Receiving States therefore complained that children were often already placed before consent had been given, leaving the children in a situation of legal uncertainty.

3.

The requirement of exequatur


The procedure for declaring a decision given in another Member State enforceable ("exequatur") remains an obstacle to the free circulation of decisions which entails unnecessary costs and delays for parents and their children involved in cross-border proceedings. The time for obtaining exequatur varies between the Member States; it can take from a couple of days to several months, depending on the jurisdiction and the complexity of the case. The time indicated does not take into account the time required for collecting the documents necessary for the application and translations. If an appeal is lodged against the grant or refusal of exequatur, this delay increases considerably: appeal proceedings can take up to two years in some Member States. This is particularly frustrating for parents who expect that decisions concerning children take effect without unnecessary delay.

There might also be contradictory situations where a Member State must enforce access rights under the Regulation while, at the same time, the recognition and/or enforcement of custody rights granted in the same decision may be challenged and perhaps refused in the same Member State because decisions on both rights are currently subject to different procedures under the Regulation.

4.

Hearing of the child


There are discrepancies in the interpretation of the grounds for non-recognition of decisions given in other Member States, in particular in relation to the hearing of the child. The Regulation is based on the principle that children’s views must be taken into account in cases concerning them as long as this is appropriate in light of their age and maturity and in line with their best interests. Difficulties arise due to the fact that Member States have diverging rules governing the hearing of the child. In particular, Member States with stricter standards regarding the hearing of the child than the Member State of origin of the decision are encouraged by the current rules to refuse recognition and exequatur if the hearing of the child does not meet their own standards. In addition, the importance of hearing children is not highlighted in the Regulation in general terms for all cases on matters of parental responsibility, but only in relation to return proceedings. If a decision is given without having heard the child, there is a danger that the decision may not take the best interests of the child into account to a sufficient extent.

5.

Actual enforcement of decisions


Decisions on parental responsibility are often enforced late or not at all. Efficient enforcement depends on the national structures put in place to ensure enforcement. The legal and practical approach to the enforcement of family decisions varies among Member States, in particular with regard to the enforcement measures taken. Once an order has been made, it is important to have effective measures available for enforcing it while it has to be borne in mind that for enforcement against children, it must still be possible to react quickly to any temporary or permanent risks to the child's best interests which might be caused by enforcement.

6.

Cooperation between the Central Authorities


The cooperation between Central Authorities in specific cases on parental responsibility, contained in Article 55, is essential to support effectively parents and children involved in cross-border proceedings relating to child matters. A problem observed by all stakeholders, including Member States, is the unclear drafting of the article setting out the assistance to be provided by Central Authorities in specific cases on parental responsibility. This has led to delays which were detrimental to children's best interests. According to the results of the consultation, the article does not constitute a sufficient legal basis for national authorities in some Member States to take action because their national law would require a more explicit autonomous legal basis in the Regulation.

• Consistency with existing policy provisions in the policy area

The proposal takes account of other instruments, in particular other EU Regulations in the area of family law and international instruments such as the 1980 9 and 1996 10 Hague Conventions.

With respect to the parental responsibility matters (custody, access, child protection) the courts of the Member States are bound by the jurisdiction rules of the Regulation. There are no other EU instruments dealing with this aspect. The aim of the 1980 Hague Convention is to protect the jurisdiction of the State of habitual residence of the child in cases of cross-border child abduction. Both in intra-EU cases and cases in relation to third States, the law applicable to parental responsibility matters is determined by the 1996 Hague Convention.

In matrimonial matters, the Brussels IIa Regulation regulates the jurisdiction of the courts of the Member States for divorce, legal separation and the annulment of marriages. Rules to determine which law applies to these questions are determined in accordance with the Rome III Regulation, established as an instrument of enhanced cooperation, in the Member States which apply it.

The recognition and enforcement of decisions given in another Member State on matrimonial or parental responsibility matters are governed by the Brussels IIa Regulation.

There is an indirect link with the Maintenance Regulation; the scope of the latter relates to maintenance obligations arising from a family relationship while maintenance is excluded from the scope of the Brussels IIa Regulation. Pursuant to the Maintenance Regulation, courts having jurisdiction under the Brussels IIa Regulation will normally also have ancillary jurisdiction for maintenance.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

The legal basis for Union action in family matters is established in Article 81 i of the Treaty on the Functioning of the European Union. Article 81 i states that the Union is to ‘develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases’.

• Subsidiarity (for non-exclusive competence)

The Union has shared competence under Article 81 TFEU which it has already exercised by enacting the Brussels IIa Regulation. The different elements of the proposal comply with the requirements of subsidiarity. The overriding return mechanism of the Regulation applies solely to cross-border child abduction cases. Improvements undertaken so far in single Member States have proven not to have an impact on the return procedure as a whole since smooth operation of the system presupposes efficiency, close cooperation and mutual trust between both Member States involved in a case.

As regards placement decisions, in 2012 the Court of Justice ruled that “Member States are (…) required to establish clear rules and procedures for the purposes of the consent referred to in Article 56 of the Regulation, in order to ensure legal certainty and expedition. The procedures must, inter alia, enable the court which contemplates the placement easily to identify the competent authority and the competent authority to grant or refuse its consent promptly.” Nonetheless, the different national rules are not implementing the provision on cross-border placements in a coherent and uniform manner and are unlikely to do so in the future. Even if they did, the necessary coordination between the national rules could not be achieved at national level. Therefore only the creation of autonomous minimum rules in the Regulation, applicable to all cross-border placements originating from a court or authority in a Member State, can remedy this problem.

The abolition of exequatur cannot be achieved by the Member States individually because the procedure has already been harmonised by the Brussels IIa Regulation and can, therefore, only be amended by way of a regulation. The same reasoning applies for the improvement of the existing rules on the cooperation between Member States' Central Authorities.

With regard to enforcement which as such is a matter for the Member States, the CJEU has stated that the application of national rules for enforcement should not prejudice the useful effect of the Regulation 11 . Article 81 para. 2 (f) allows at EU level the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States. In addition, a minimum harmonisation is justified to reach the objective of mutual recognition of decisions. Where there are negative consequences resulting from inefficient enforcement procedures, these need to be addressed at EU level so that a successful outcome can be equally guaranteed in all Member States.

• Proportionality

The proportionality principle requires measures taken to be proportionate to the size and extent of the problems.

National substantive rules will to some extent be affected by the proposed action, insofar as common standards on enforcement are proposed. This is, however, justified by the aim of ensuring full efficiency of the Regulation and the fact that for individuals to be able to fully exercise their rights wherever they might be in the Union, the incompatibilities between judicial and administrative systems between Member States have to be removed. The evaluation has shown indeed that national grounds of refusal on enforcement may duplicate with the existing refusal grounds under the Regulation. Because of the different standards for applying such grounds under the Regulation and under national law, national grounds may in reality undermine the uniform and smooth application of the European rules. In order to ensure uniformity and thus to create a level playing field for all citizens in the Union, it is therefore necessary to harmonise national grounds of refusal insofar as they are invoked against enforcement of a decision given in another Member State.

There is a large and growing number of EU citizens that are affected directly and indirectly by cross-border child related proceedings. The costs of the proposal are modest and the benefits are, in comparison, very large. The proposal strengthens legal certainty, increases flexibility, ensures access to court and efficient proceedings whilst Member States retain full sovereignty with regard to the substantive laws on parental responsibility.

• Choice of the instrument

The proposal takes the form of a Regulation recasting with amendments and replacing an existing one.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

The evaluation of the Regulation was carried out in light of the objectives of the Regulatory Fitness and Performance Programme (REFIT) 12 . This is the Commission's programme to ensure that EU legislation is fit for purpose and delivers the results intended by EU law makers. The evaluation of the Regulation is based on a qualitative and quantitative analysis. Empirical data was collected through an external study; see Final Evaluation Report and Analytical Annexes 13 to evaluate the relevance, coherence, effectiveness, efficiency, as well as EU added value and utility of the Regulation. In addition, two surveys were launched in 2015 to collect specific data concerning parental responsibility decisions.

While the Regulation is considered to be functioning well overall and to be delivering value to EU citizens, the operational functioning of the instrument is at times hampered by a series of legal issues; the current legal text is insufficiently clear or is incomplete on some points 14 . This is considered in particular the case for the child return procedure and for the cooperation between the Central Authorities on parental responsibility matters 15 .

The evaluation showed that between the two major areas covered by the Regulation, the matrimonial and parental responsibility matters, the latter were identified to have caused acute problems. The overall efficiency of certain aspects of the child-related proceedings has been called into question 16 . In matters concerning parental child abduction, cross-border placement of children, recognition and enforcement of decisions and cooperation between (central and other) national authorities there are excessive and undue delays arising from the way the existing procedures are formulated or applied 17 . This has had a negative impact on parent-child relationships and the best interests of children. In addition, the requirement of exequatur generated average delays per case of several months and costs reaching up to 4,000 Euro for citizens 18 . The vague description of the cooperation between Central Authorities has often led to delays of several months or even to the non-fulfilment of requests 19 – which is detrimental to children's welfare. The enforcement of decisions given in another Member State was identified as problematic 20 ; decisions are often not enforced or only with significant delays. In addition, the work of specialised lawyers generates costs for parents between € 1,000 and 4,000 per case 21 . For the Member States, on the other hand, the Regulation itself has generated very limited costs; these mainly relate to the operation of the Central Authorities 22 .

• Stakeholder consultations

This proposal was preceded by an extensive consultation of the interested public, Member States, institutions and experts on the existing problems of the current system and possible solutions to it. On 15 April 2014, the Commission adopted a report on the application of the Regulation 23 and launched a public consultation in which it put forward suggestions for the revision on which a total of 193 responses was received 24 . It results from the consultation process that stakeholders support the need for a carefully targeted reform of the existing Regulation.

In cases concerning parental child abduction, the majority of respondents to the public consultation think that the immediate return of the child within the EU was not ensured in all cases. The main suggestions for improvement arose with respect to a stricter time-frame compliance and applying sanctions in cases where the obligation to return the child was not fulfilled 25 .

While parents are the most prominent group who sought to expand the abolition of exequatur, followed by judges and lawyers, some Member States indicated that exequatur should not be abolished without maintaining certain safeguards. It was recommended that in case of abolition of exequatur safeguards be put in place in relation to areas such as the rights of parties and the child to be heard and the proper service of documents 26 .

A significant number of respondents considered enforcement of parental responsibility decisions which were given in another Member State as an important area for improvement. The main suggestion from legal practitioners involved the adoption of common minimum standards including a uniform enforcement procedure while Member States were sceptical towards such a solution 27 .

Finally, parents have particularly expressed their concern as regards the cooperation between the Central Authorities whose statutory role is to support them in cross-border child-related proceedings. Lack of efficient cooperation was a main feature of most of the respondents’ answers. To resolve this, the respondents recommend a better clarification of the tasks so to better support the parents. Similarly, respondents supported the inclusion of child welfare authorities into the cooperation system to ensure the smooth operation of the Regulation 28 .

The outcome of the public consultation confirms in general the findings of the Commission's application report adopted in 2014.

• Collection and use of expertise

The availability and completeness of the statistics on the application of the Regulation is limited and differs widely across Member States. The qualitative and quantitative analysis of the operation of the Regulation was carried out through an external study. In addition to the study, two surveys – one with the Central Authorities established under the Regulation and another one with Member States – were launched in 2015 to collect specific data concerning parental responsibility decisions. In addition, a separate expert group was constituted with a view to discussing problems and potential solutions for the revision. The functioning of the Regulation was also regularly discussed in several meetings of the Central Authorities organised in the framework of the European Judicial Network in civil and commercial matters.

• Impact assessment

In the Impact Assessment accompanying this proposal, the policy options and their impact assessment were dealt with separately for each of the issues identified as problematic in the evaluation of the Regulation. For all issues a baseline scenario and alternative options were developed. For matrimonial and parental responsibility matters, policy options with different degrees of intervention were considered. For the child abduction procedure, mere clarifications of the current mechanism alongside an option foreseeing a list of flanking measures were taken into consideration. In addition, two options were developed to assess possible radical changes of the return mechanism (a return to the 'Hague' system and a creation of a unique forum in the Member State of origin). For the placement mechanism, two options were proposed to choose between a system either with presumed or explicit consent. With regard to recognition and enforcement, both main policy options do away with the exequatur requirement or propose a new procedure to respond best to the inefficiency problem. The new proposed system was supplemented by three alternative sub-options tackling the problem of hearing the child. Also, two complementary options were considered to improve enforcement either through an indicative time-limit or through a full harmonisation of the enforcement law for parental responsibility decisions.

The assessment finishes with the comprehensive preferred options for all issues presented in the report. For matrimonial matters, the preferred policy option is retaining the status quo. This means that spouses in an international marriage will continue to have a possibility to consolidate the different proceedings as currently permitted by the Regulation and other family law instruments (such as the Maintenance Regulation). At the same time, the flexibility for the spouses to apply for a divorce in one of the fora indicated in the Regulation will be maintained. The benefits of reducing or abolishing this flexibility (favoured by some Member States) would be outweighed by the disadvantages of the options considered to respond to the 'rush to court' problem (transfer of jurisdiction or hierarchy of grounds) signalled by other Member States. Also, spouses not having a common EU nationality who live in a third State but retain links with a certain Member State and want to get divorced will continue to rely on the national rules to access EU courts or to have their decision (obtained in a third country) recognised in the EU.

With regard to parental responsibility matters, the preferred option is for an EU intervention as motivated by the scale and urgency of the problem. More specifically, the child return procedure should be improved through an option clarifying the current mechanism and introducing new measures such as concentration of jurisdiction and the possibility for the court of refuge to order urgent protective measures which can also 'travel with the child' to the State of habitual residence if necessary to enable a safe return. The new rules would make the time limit for the return achievable by specifying the time frame for the proceedings before the courts of the first and second instance separately. Proceedings would be shortened by introducing a time limit also for the requested Central Authority, and by limiting the number of appeals possible against a decision on return or non-return to one. The preferred option would explicitly invite the judge to consider whether the decision should be provisionally enforceable.

For placement decisions an autonomous consent procedure should be established to be applied to all cross-border placements, flanked by a time limit for the requested Member State to respond to the request.

Exequatur would be abolished while maintaining appropriate safeguards (grounds for non-recognition and challenges against enforcement as such or against specific enforcement measures) to be invoked jointly by the defendant parent at the stage of enforcement in the Member State of enforcement, thereby shortening the overall duration of the proceedings. To diminish problems resulting from different national practices for hearing children and from decisions issued by courts lacking a close connection with the child at the time of decision, and the resulting refusals of the recognition of the decision, the preferred option would require Member States to mutually respect their national rules while obliging them to give the child the opportunity to express his or her views and take due account of them, and bring the jurisdiction in line with the guiding principle of proximity to the child by nuancing perpetuatio fori. As far as enforcement is concerned, the preferred option would guarantee that enforcement could only be refused on the basis of a uniform and limited list of grounds for refusal. There would also be a time limit indicated for enforcement with a reporting obligation where this is surpassed and the possibility for the court of origin to declare a decision provisionally enforceable notwithstanding any appeal against the decision while leaving leeway to deal with urgent risks to the child's best interests at the enforcement stage, which would in turn clearly enhance the efficiency of the proceedings and the protection of the best interests of the child.

With regard to cooperation, a clarification of the respective article should specify: i who can ask i which assistance or information i from whom and i under which conditions. A time limit would be indicated for the requested authority to respond. It would be made clear that also courts and child welfare authorities can request the assistance of Central Authorities. In addition, the well-established soft law measures would be continued to provide an ongoing supporting structure for those handling applications under the Regulation. The addition of the proposed article on adequate resources would render explicit the current implicit requirement which is presently met in the case of certain Central Authorities, but not all, and would thereby increase mutual trust.

The preferred package of policy options for parental responsibility matters would meet the simplification objectives by reducing delays relating to the return of the child, the placement decisions, and cooperation between the Central Authorities, and eliminate unnecessary delays and costs related to the exequatur requirement. At the same time it would also respond to the urgency of remedying the problems currently faced in this area, where it is of outmost importance to act and set the scene for changes keeping in mind the situation of children, families and their best interests.

The efficiency of the proceedings would be improved, as regards the child return procedure, by reducing the number of levels of appeal, providing for provisional enforceability of decisions where appropriate, by defining the role and duties of Central Authorities more clearly and obliging Member States to concentrate jurisdiction in a limited number of courts in a manner coherent with the structure of their respective legal system. For placement decisions, the delays with obtaining consent will be reduced by establishing an autonomous consent procedure and by a time limit (max. eight weeks as opposed to the current 6 months and more) for the requested Member State to respond to the request. As regards recognition and enforcement, delays relating to obtaining exequatur (taking up to several months) will be eliminated. As the safeguards (grounds for non-recognition and challenges against enforcement as such or against specific enforcement measures) would be invoked jointly by the defendant at the stage of enforcement, the overall duration of the proceedings would be shortened. Similarly, the preferred option would reduce delays (in some instances going beyond one year) during the actual enforcement by establishing a maximum time frame of six weeks. Finally, the clarification of the role of Central Authorities in general will reduce delays in their mutual cooperation.

• Regulatory fitness and simplification

Having recourse to the legal technique of recasting, improving the operational functioning of the instrument by making it clearer and more complete as well as simplification and improving efficiency will also contribute to regulatory fitness. In particular, establishing an autonomous consent procedure and a time limit for the requested Member State to respond to the request will shorten the time for obtaining consent in the placement procedures to max. 8 weeks instead of the current 6 months or more. With the proposed abolition of exequatur, delays (taking up to several months) and costs (up to € 4,000) relating to obtaining it would be eliminated. The proposed amended procedure for the return of the child in case of abduction would reduce the costs of specialised legal advice for parents (between € 1,000 and 4,000) 29 .

• Fundamental rights

All elements of the reform respect the rights set out in the Charter of Fundamental rights, in particular, the right to an effective remedy and the right to a fair trial guaranteed in its Article 47. Given the subject matter of the Regulation, notably the relationship between parents and their children, the preferred policy options for parental responsibility matters will enhance the right to the respect for private and family life (Article 7). Finally, the proposed changes will strengthen the rights of the child (Article 24) and bring the Regulation further in line with the United Nations Convention on the Rights of the Child by linking the provisions more closely to it.

4. BUDGETARY IMPLICATIONS

The proposal triggers relatively modest compliance costs. The abolition of exequatur and the concentration of jurisdiction would require Member States to incur costs for training to familiarise the legal profession with the new procedures envisaged. Training is however already necessary today. In addition, as the Regulation foresees a concentration of jurisdiction in the future, fewer judges will need to be trained. Experience in Member States which have concentrated jurisdiction, on the other hand, has shown that judges hearing more abduction cases are more likely to participate in any training that is offered, and the decisions by those specialised and experienced first instance courts are appealed less frequently, thereby generating cost savings in the individual case and for the administration of justice in general. Member States are also already now obliged to designate and ensure the proper functioning of their Central Authorities to enable them to carry out the obligations assigned to them under this Regulation. Further clarification of their tasks might generate additional costs (in particular for human resources) for some Member States if their Central Authorities currently are not sufficiently equipped..

The other changes envisaged constitute relatively straightforward changes to existing rules which would not require the creation of new procedures and should be able to be applied by the authorities without the need of special training.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

In order to monitor the effective application of the amended Regulation, regular reporting and ex post evaluation by the Commission will take place supported by consultations of Member States, stakeholders and external experts. Regular expert meetings will be organised to discuss application problems and exchange best practices between Member States in the framework of the European Judicial Network in civil and commercial matters. The cooperation with the latter will be particularly useful to formulate the need for the collection of specific data to underpin any future proposal by statistical evidence.

• Detailed explanation of the specific provisions of the proposal

Introduction of measures increasing efficiency and improving the functioning of the 'overriding mechanism'

Several substantial modifications are proposed with the aim of improving the efficiency of the return of an abducted child and the problems relating to the complexity of the 'overriding mechanism' under the Regulation.

First of all, the proposal clarifies the time limit for issuing an enforceable return order in line with the view prevailing among those Member States which handle return cases under the 1980 Hague Convention most quickly. A separate six-week time limit would apply to the proceedings before the first instance court and the appellate court, respectively. In addition, the proposal would oblige Central Authorities to also work under a six-week time limit to receive and process the application; locate the respondent and the child; promote mediation while making sure that this does not delay the proceedings, and refer the applicant to a qualified lawyer or file the case with the court (depending on the national legal system). Currently, no time limit exists for Central Authorities. This new 6+6+6 deadline therefore envisages a maximum period of 18 weeks for all possible stages instead of average proceedings taking up to 165 days nowadays 30 . This would render the time limit for courts more realistic with a view to protecting the right of the defendant to a fair trial whilst limiting it to the shortest period realistically possible.

Moreover, the measures proposed include an obligation for Member States to concentrate jurisdiction for child abduction cases in a limited number of courts while respecting the structure of the legal system concerned. This would ensure that judges experienced with this very specific type of procedure would rule on the return applications.

The proposal limits the number of possibilities to appeal a decision on return to one and explicitly invites a judge to consider whether a decision ordering return should be provisionally enforceable.

In addition, the proposal contains a number of clarifications to better implement the current rules: it obliges the Member State where the child was habitually resident immediately before the wrongful removal or retention to conduct a thorough examination of the best interests of the child before a final custody decision, possibly implying return of the child, is given. In this context, when conducting this examination of the best interests of the child, any child who is capable of forming his or her own views has the right to be heard, even if not physically present, using alternative means such as videoconferencing as appropriate.

The cooperation between the Central Authorities or a direct communication by a judge with the relevant court in the Member State of origin should be facilitated to assess measures ("ad-equate arrangements") put in place in the Member State to which the child should be returned.

Where the child might be at a grave risk of harm or might otherwise be placed in an intolerable situation if returned to the country of the child’s habitual residence without any safeguards, it should also be possible for the court of the Member State of refuge to order urgent protective measures required there and which, if necessary, can also 'travel with the child' to the State of habitual residence where a final decision on the substance has to be taken. Such an urgent measure would be recognised by operation of law in the Member State where the child was habitually resident immediately before the wrongful removal or retention but would lapse as soon as the courts of that State have taken the measures required by the situation. For example, the court before which return proceedings are pending will be able to grant access rights to one of the parents which will also be enforceable in the Member State of habitual residence of the child until the court of that country takes a final decision with respect to the access to a child.

7.

Creation of an autonomous consent procedure to be applied to all cross-border placements, flanked by a time limit of eight weeks for the requested Member State to respond to the request


The proposal concerning cross-border placements foresees the introduction of the following new rules:

– Making consent of the receiving State mandatory for all cross-border placements originating from a court or authority in a Member State

– Introducing uniform requirements for documents to be submitted with the request for consent: the requesting authority has to submit a report on the child and set out the reasons for the contemplated cross-border placement

– Introducing a rule on translation requirements: the request has to be accompanied by a translation into the language of the requested Member State

– Channelling all requests through Central Authorities

– Introducing a time limit of eight weeks for the requested State to decide about the request.

Abolition of exequatur with appropriate safeguards to be invoked at the stage of enforcement, i.e. to challenge the recognition or enforcement of the decision given by the State of origin or to challenge concrete enforcement measures ordered by the State where enforcement is sought, in one and the same procedure in the State where enforcement is sought

Today, judicial cooperation and the level of trust among Member States have reached a degree of maturity which permits the move towards a simpler and less costly system of circulation of decisions, removing the existing formalities among Member States. Such abolition of exequatur has already been realised in a number of areas, including in the family law area (access rights, certain return orders, maintenance obligations). As a substantial change, the proposal therefore abolishes the exequatur procedure for all decisions covered by the Regulation's scope. The abolition of exequatur will be accompanied by procedural safeguards which ensure that the defendant's right to an effective remedy and the right to a fair trial as guaranteed in Article 47 of the EU Charter on Fundamental Rights are adequately protected. The abolition of exequatur would allow the European citizens engaged in cross-border litigation to save the major part of the current costs of the procedure (on average € 2,200 to be paid for processing the application) and eliminate delays, which in some cases amount to a couple of months.

The defendant parent would have remedies at his/her disposal by which he or she could in exceptional circumstances prevent a decision given in one Member State from taking effect in another Member State. Where there is a concern that any of the grounds of non-recognition or grounds to challenge concrete enforcement measures might apply, the defendant could make an application to challenge recognition and/or enforcement in the Member State of enforcement in one and the same procedure.

The proposal includes uniform rules to define in which situations not only cross-border enforceability but also enforcement as such could be opposed. The latter rules would govern for example the situation where a change of circumstances occurred. In addition, the rules settle in unified manner situations where the child opposes enforcement or enforcement cannot be carried out due to temporary factual obstacles.

As such, the time and costs of the exequatur procedure will be saved while the necessary protection of defendants will remain ensured.

As it is already the case under the current Regulation, the proposal also contains a series of standard certificates which aim at facilitating the recognition or enforcement of the foreign decision in the absence of the exequatur procedure. These certificates will facilitate the enforcement of the decision by the competent authorities and reduce the need for a translation of the decision.

8.

Introduction of an obligation to give the child an opportunity to express his or her views


The proposal leaves Member States' rules and practices on how to hear a child untouched, but requires mutual recognition between the legal systems. This means that an obligation to give the child who is capable of forming his or her own views an opportunity to express these views would be made explicit in the Regulation, bearing in mind that all Member States have ratified the UN Convention on the Rights of the Child which already obliges them to hear the children meeting the condition mentioned above in any domestic and cross-border proceedings concerning them. Notably a distinction is made, as it is the case in the respective Article of the Charter of Fundamental Rights, between the question when the child needs to be given the opportunity to be heard on the one hand (i.e. when he or she is capable of forming/expressing his or her own views) and the question what weight the judge shall give to the child's views on the other hand (which depends on the age and maturity of the child). This distinction has to be recorded in the decision and in a certificate annexed to it. For a parent seeking recognition of a decision on another Member State, this means that a court in that country will not refuse to recognise it on the mere fact that a hearing of the child in another country was done differently comparing to the standards applied by that court.

9.

Introduction of targeted measures to improve the efficiency of actual enforcement


To tackle the problem of inefficient enforcement, the proposal introduces several measures. It provides that the application for enforcement has to be made to a court in the Member State of enforcement but leaves the procedure generally, the means of enforcement and their modalities up to the law of the Member State of enforcement, e.g. which specific enforcement measure should be ordered under which circumstances. Where a decision from another Member State needs to be further detailed or adapted in order to be enforced under the national law of the Member State of enforcement, the competent court of that Member State should make the necessary specifications or adaptations while respecting the essential elements of the decision.

A party challenging the enforcement of a decision given in another Member State should, to the extent possible and in accordance with the legal system of the Member State addressed, be able to invoke, in the same procedure, in addition to the grounds for refusal of recognition, the grounds for refusal against enforcement as such. The incompatibility with the child's best interests which has been caused by a change of circumstances (such as serious illness of a child) or by the strength of the objections of a child of sufficient age and maturity should only be considered if it reaches an importance comparable to the public policy exception.

The proposal also foresees an indicative time limit for the actual enforcement of a decision. In case the enforcement has not occurred after the lapse of 6 weeks from the moment the enforcement proceedings were initiated, the court of the Member State of enforcement would have to inform the requesting Central Authority in the Member State of origin (or the applicant, if the proceedings were conducted without Central Authority assistance) about this fact and the reasons for the lack of timely enforcement.

The proposal further provides that the court of origin could declare a decision provisionally enforceable even if this possibility does not exist in its national law. This is useful in systems where the decision is not yet enforceable while it is still subject to appeal. As a result, a parent would be able to have access to the child based on a decision provisionally declared enforceable while the appeal proceedings concerning that decision will be carried out on request of the other parent.

Clarification of the Central Authorities' and other requested authorities’ tasks plus addition of an article on adequate resources

The proposal clarifies the following aspects: i who can ask i which assistance or information i from whom and i under which conditions. It makes clear that also courts and child welfare authorities can request the assistance of Central Authorities. Moreover, with respect to the transmission of social reports, the proposal clarifies to cover also reports on adults or siblings which are of relevance in child-related proceedings under the Regulation if the situation of the child so requires. It makes clear that this is (for courts) a cost-free alternative (except for possible translation costs) to the Evidence Regulation and creates a legal basis for child welfare authorities to obtain the necessary information from other Member States through the Central Authorities. The request is to be accompanied by a translation into the language of the requested State. Likewise, the proposal establishes some minimum requirements for a request for a social report, namely a description of the proceedings for which it is needed and the factual situation that gave rise to those proceedings. The proposal establishes a time limit for the requested authority to respond. As concerns the requested national authority, e.g. when a social report is asked for, the Regulation makes clear that the requested authority is under an autonomous obligation created by the Regulation to provide such report, without any additional requirements existing under the national law of the requested State having to be met. For example, a court in a Member State, before making its decision on taking a child into care who is currently present in its jurisdiction, may obtain information through Central Authority channels on whether there are pending proceedings in another country and ask for copies of any decisions ordering protective measures for other children from the same family, and for any social reports on the siblings and their relationship with each other, or on the parent, which are of relevance for the pending proceedings.

In addition, the proposal states that Member States shall ensure that Central Authorities have adequate financial and human resources to enable them to carry out the obligations assigned to them under this Regulation.

The proposal does not contain any changes with regard to the scope and the matrimonial matters for which the status quo is retained. This means that Chapter I (with the exception of mere clarification in definitions) and Chapter II Section 1 (except for clarification of the Articles 6 and 7) remain unchanged.

As a consequence, spouses in an international marriage will continue to have a possibility to consolidate the different proceedings as foreseen in the Regulation and other family law instruments (such as the Maintenance Regulation). At the same time, the flexibility for spouses to apply for a divorce in one of the fora indicated in the Regulation will be maintained. Spouses not having a common EU nationality who live in a third State but retain links with a certain Member State and want to get divorced will continue to rely on the national rules to access EU courts or to have their decision (obtained in a third country) recognised in the EU.

Furthermore, the following Articles remain unchanged in the meaning of a Recast: 1, 2, 3, 4, 5, 6, 7, 8 i, 9, 10, 11 i, i, i, (5), (7), 12 i, i, 13,14, 15(1)-(5), 16, 17, 18, 19, 20 i, 21 i, i, i, 22, 23(a), (c)-(f), 24, 25, 26, 27, 41 i, 42 i, 44, 48, 49, 51, 53, 54, 55(b)-(e), 56 i, i, 58, 59 i, 60(a)-(d), 63, 66, 67 (a), (b).


🡻 2201/2003 (adapted)

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