Considerations on 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) - EU monitor

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Considerations on 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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table>(1)On 15 April 2014, the Commission adopted a report on the application of Council Regulation (EC) No 2201/2003 (3). The report concluded that Regulation (EC) No 2201/2003 is a well-functioning instrument that has brought important benefits to citizens, but that the existing rules could be improved. A number of amendments are to be made to that Regulation. In the interests of clarity, that Regulation should be recast.
(2)This Regulation establishes uniform jurisdiction rules for divorce, legal separation and marriage annulment as well as for disputes about parental responsibility with an international element. It facilitates the circulation of decisions, as well as of authentic instruments and certain agreements, in the Union by laying down provisions on their recognition and enforcement in other Member States. Moreover, this Regulation clarifies the child's right to be provided with an opportunity to express his or her views in proceedings to which he or she is subject and also contains provisions complementing the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction ('the 1980 Hague Convention') in relations between Member States. Therefore, this Regulation should help to strengthen legal certainty and increase flexibility, to ensure that access to court proceedings is improved and to ensure that such proceedings are made more efficient.

(3)The smooth and correct functioning of a Union area of justice with respect for the Member States' different legal systems and traditions is vital for the Union. In that regard, mutual trust in one another's justice systems should be further enhanced. The Union has set itself the objective of creating, maintaining and developing an area of freedom, security and justice, in which the free movement of persons and access to justice are ensured. With a view to implementing that objective, the rights of persons, in particular children, in legal procedures should be reinforced in order to facilitate the cooperation of judicial and administrative authorities and the enforcement of decisions in family law matters with cross-border implications. The mutual recognition of decisions in civil matters should be enhanced, access to justice should be simplified and exchanges of information between the authorities of the Member States should be improved.

(4)To this end, the Union is to adopt, among others, measures in the field of judicial cooperation in civil matters having cross-border implications, particularly when necessary for the proper functioning of the internal market. The term civil matters should be interpreted autonomously, in accordance with the established case-law of the Court of Justice of the European Union ('the Court of Justice'). It should be regarded as an independent concept to be interpreted by referring, first, to the objectives and scheme of this Regulation and, second, to the general principles which stem from the corpus of the national legal systems. The term civil matters should therefore be interpreted as capable of extending also to measures which, from the point of view of the legal system of a Member State, might fall under public law. It should cover, in particular, all applications, measures or decisions in matters of parental responsibility within the meaning of this Regulation, in accordance with its objectives.

(5)This Regulation covers civil matters, which includes civil court proceedings and the resulting decisions as well as authentic instruments and certain extra-judicial agreements in matrimonial matters and matters of parental responsibility. Moreover, the term civil matters should cover applications, measures or decisions as well as authentic instruments and certain extra-judicial agreements concerning the return of a child under the 1980 Hague Convention, which, according to the case-law of the Court of Justice and in line with Article 19 of the 1980 Hague Convention, are not proceedings on the substance of parental responsibility but closely related to it and addressed by certain provisions of this Regulation.

(6)In order to facilitate the circulation of decisions as well as of authentic instruments and certain agreements in matrimonial matters and matters of parental responsibility, it is necessary and appropriate that the rules governing jurisdiction and the recognition and enforcement of decisions be governed by a legal instrument of the Union which is binding and directly applicable.

(7)In order to ensure equality for all children, this Regulation should cover all decisions on parental responsibility, including measures for the protection of the child, independent of any link with matrimonial proceedings or other proceedings.

(8)However, since the application of the rules on parental responsibility often arises in the context of matrimonial proceedings, it is appropriate to have a single instrument for matters of divorce and parental responsibility.

(9)As regards decisions on divorce, legal separation or marriage annulment, this Regulation should apply only to the dissolution of matrimonial ties. It should not deal with issues such as the grounds for divorce, property consequences of the marriage or any other ancillary measures. Decisions refusing the dissolution of matrimonial ties should not be covered by its provisions on recognition.

(10)As regards the property of the child, this Regulation should apply only to measures for the protection of the child, namely the designation and functions of a person or body having charge of the child's property, representing or assisting the child, and the administration, conservation or disposal of the child's property. In this context, this Regulation should, for instance, apply in cases where the object of the proceedings is the designation of a person or body administering the child's property. Measures relating to the child's property which do not concern the protection of the child should continue to be governed by Regulation (EU) No 1215/2012 of the European Parliament and of the Council (4). However, it should be possible for the provisions of this Regulation on jurisdiction over incidental questions to apply in such cases.

(11)Any type of placement of a child in foster care, that is, according to national law and procedure, with one or more individuals, or institutional care, for example in an orphanage or a children's home, in another Member State should fall within the scope of this Regulation unless expressly excluded, which is for example the case for placement with a view to adoption, placement with a parent or, where applicable, with any other close relative as declared by the receiving Member State. As a result, also educational placements ordered by a court or arranged by a competent authority with the agreement of the parents or the child or upon their request following deviant behaviour of the child should be included. Only a placement – be it educational or punitive – ordered or arranged following an act of the child which, if committed by an adult, could amount to a punishable act under national criminal law, regardless of whether in the particular case this could lead to a conviction, should be excluded.

(12)This Regulation should not apply to the establishment of parenthood, since that is a different matter from the attribution of parental responsibility, nor should it apply to other questions linked to the status of persons.

(13)Maintenance obligations are excluded from the scope of this Regulation, as those obligations are already covered by Council Regulation (EC) No 4/2009 (5). In addition to the courts for the place where the defendant, or the creditor, is habitually resident, the courts having jurisdiction under this Regulation in matrimonial matters should generally have jurisdiction to decide on ancillary spousal or post-marital maintenance obligations by application of point (c) of Article 3 of that Regulation. The courts having jurisdiction under this Regulation in matters of parental responsibility generally have jurisdiction to decide on ancillary child maintenance obligations by application of point (d) of Article 3 of that Regulation.

(14)According to the case-law of the Court of Justice, the term court should be given a broad meaning so as to also cover administrative authorities, or other authorities, such as notaries, who or which exercise jurisdiction in certain matrimonial matters or matters of parental responsibility. Any agreement approved by the court following an examination of the substance in accordance with national law and procedure should be recognised or enforced as a decision. Other agreements which acquire binding legal effect in the Member State of origin following the formal intervention of a public authority or other authority as communicated to the Commission by a Member State for that purpose should be given effect in other Member States in accordance with the specific provisions on authentic instruments and agreements in this Regulation. This Regulation should not allow free circulation of mere private agreements. However, agreements which are neither a decision nor an authentic instrument, but have been registered by a public authority competent to do so, should circulate. Such public authorities might include notaries registering agreements, even where they are exercising a liberal profession.

(15)In relation to authentic instrument, the term empowerment in this Regulation is to be interpreted autonomously in accordance with the definition of authentic instrument used horizontally in other Union instruments and in light of the purposes of this Regulation.

(16)Although return proceedings under the 1980 Hague Convention are not proceedings on the substance of parental responsibility, decisions ordering the return of a child pursuant to the 1980 Hague Convention should benefit from recognition and enforcement under Chapter IV of this Regulation where they need to be enforced in another Member State due to a further abduction after return was ordered. This is without prejudice to the possibility of starting new proceedings for the return of a child under the 1980 Hague Convention with regard to the further abduction. Moreover, this Regulation should continue to apply to other aspects in situations of wrongful removal or retention of a child, for example the jurisdiction provisions for the court of the Member State of habitual residence, and the recognition and enforcement provisions for any orders made by that court.

(17)This Regulation should, like the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children ('the 1996 Hague Convention'), apply to all children up to the age of 18 years even in cases where they have acquired capacity before that age under the law governing their personal status, for example through emancipation by reason of marriage. This should avoid an overlap with the scope of the Hague Convention of 13 January 2000 on the International Protection of Adults which applies from the age of 18 years onwards and, at the same time, prevent gaps between those two instruments. The 1980 Hague Convention, and consequently also Chapter III of this Regulation, which complements the application of the 1980 Hague Convention in relations between Member States, should continue to apply to children up to the age of 16 years.

(18)For the purposes of this Regulation, a person should be deemed to have rights of custody where, pursuant to a decision, by operation of law or by an agreement having legal effect under the law of the Member State where the child is habitually resident, a holder of parental responsibility cannot decide on the child's place of residence without the consent of that person, regardless of the terms used under national law. In some legal systems which retain the language of custody and access, the non-custodial parent might in fact retain important responsibilities for decisions concerning the child which go beyond a mere right of access.

(19)The grounds of jurisdiction in matters of parental responsibility are shaped in the light of the best interests of the child and should be applied in accordance with them. Any reference to the best interests of the child should be interpreted in light of Article 24 of the Charter of Fundamental Rights of the European Union ('the Charter') and the United Nations Convention on the Rights of the Child of 20 November 1989 ('UN Convention on the Rights of the Child') as implemented by national law and procedure.

(20)To safeguard the best interests of the child, jurisdiction should in the first place be determined according to the criterion of proximity. Consequently, jurisdiction should lie with the Member State of the habitual residence of the child, except for certain situations set out in this Regulation, for instance, where there is a change in the child's residence or pursuant to an agreement between the holders of parental responsibility.

(21)Where no proceedings in matters of parental responsibility are yet pending and the habitual residence of the child changes following a lawful relocation, jurisdiction should follow the child in order to maintain the proximity. For proceedings already pending, legal certainty and the efficiency of justice justify maintaining this jurisdiction until those proceedings have resulted in a final decision or have otherwise come to an end. The court before which proceedings are pending should, however, be entitled in certain circumstances to transfer jurisdiction to the Member State where the child is living following a lawful relocation.

(22)In cases of the wrongful removal or retention of a child, and without prejudice to a possible choice of court pursuant to this Regulation, the courts of the Member State of the habitual residence of the child should retain their jurisdiction until a new habitual residence in another Member State has been established and some specific conditions are fulfilled. Member States which have concentrated jurisdiction should consider enabling the court seised with the return application under the 1980 Hague Convention to exercise also the jurisdiction agreed upon or accepted by the parties pursuant to this Regulation in matters of parental responsibility where agreement of the parties was reached in the course of the return proceedings. Such agreements should include agreements both on the return and the non-return of the child. If non-return is agreed, the child should remain in the Member State of the new habitual residence and jurisdiction for any future custody proceedings there should be determined on the basis of the new habitual residence of the child.

(23)Under specific conditions laid down by this Regulation, it should be possible for jurisdiction in matters of parental responsibility also to be established in a Member State where proceedings for divorce, legal separation or marriage annulment are pending between the parents, or in another Member State with which the child has a substantial connection and which the parties have either agreed upon in advance, at the latest at the time the court is seised, or accepted expressly in the course of those proceedings, even if the child is not habitually resident in that Member State, provided that the exercise of such jurisdiction is in the best interests of the child. According to the case-law of the Court of Justice, anyone other than the parents who, according to national law, has the capacity of a party to the proceedings commenced by the parents, should be considered a party to the proceedings for the purposes of this Regulation and therefore, opposition by that party to the choice of jurisdiction made by the parents of the child in question, after the date on which the court was seised, should preclude the acceptance of prorogation of jurisdiction by all the parties to the proceedings at that date from being established. Before exercising its jurisdiction based on a choice of court agreement or acceptance the court should examine whether this agreement or acceptance was based on an informed and free choice of the parties concerned and not a result of one party taking advantage of the predicament or weak position of the other party. The acceptance of jurisdiction in the course of the proceedings should be recorded by the court in accordance with national law and procedure.

(24)Any agreed or accepted jurisdiction should cease, unless otherwise agreed by the parties, as soon as a decision in those proceedings on matters of parental responsibility is no longer subject to ordinary appeal or the proceedings have come to an end for another reason, in order to respect the requirement of proximity for any new proceedings in the future.

(25)Where the habitual residence of a child cannot be established and jurisdiction cannot be determined on the basis of a choice of court agreement, the courts of the Member State where the child is present should have jurisdiction. This presence rule should also apply to refugee children and children internationally displaced because of disturbances occurring in their Member State of habitual residence. However, in light of this Regulation in conjunction with Article 52(2) of the 1996 Hague Convention, this jurisdiction rule should only apply to children who had their habitual residence in a Member State before the displacement. Where the habitual residence of the child before the displacement was in a third State, the jurisdiction rule of the 1996 Hague Convention on refugee children and internationally displaced children should apply.

(26)In exceptional circumstances, a court of the Member State of habitual residence of the child might not be the most appropriate court to deal with the case. As an exception and under certain conditions, while under no obligation to do so, the court having jurisdiction should be able, to transfer its jurisdiction in a specific case to a court of another Member State if this court is better placed to assess the best interests of the child in the particular case. According to the case-law of the Court of Justice, the transfer of jurisdiction in matters of parental responsibility, by a court of a Member State, should be made only to a court of another Member State with which the child concerned has a particular connection. This Regulation should set out an exhaustive list of the decisive elements of such particular connection. The court having jurisdiction should make the request to the court of another Member State only if its prior decision to stay the proceedings and make a request for transfer of jurisdiction has become final where that decision can be appealed under national law.

(27)In exceptional circumstances and considering the best interests of the child in the particular case, a court of a Member State not having jurisdiction under this Regulation, but a particular connection with the child in accordance with this Regulation, should be able to request a transfer of jurisdiction from the competent court of the Member State of the habitual residence of the child. That should, however, not be permitted in cases of wrongful removal or retention of the child. It should be for the national law of the requested Member State to identify this specific competent court.

(28)A transfer of jurisdiction, whether requested by a court wishing to transfer its jurisdiction or by a court wishing to obtain jurisdiction, should have effect only for the particular case in which it is made. Once the proceedings for which the transfer of jurisdiction was requested and granted have come to an end, the transfer should not produce any effect for future proceedings.

(29)Where no court of a Member State has jurisdiction pursuant to this Regulation, jurisdiction should be determined, in each Member State, by the laws of that Member State. The term laws of that Member State should include international instruments in force in that Member State.

(30)This Regulation should not prevent the courts of a Member State not having jurisdiction over the substance of the matter from taking provisional, including protective, measures in urgent cases, with regard to the person or property of a child present in that Member State. Those measures should not be recognised and enforced in any other Member State under this Regulation, with the exception of measures taken to protect the child from a grave risk as referred to in point (b) of Article 13(1) of the 1980 Hague Convention. Measures taken to protect the child from such risk should remain in force until a court of the Member State of the habitual residence of the child has taken the measures it considers appropriate. Insofar as the protection of the best interests of the child so requires, the court should inform, directly or through the Central Authorities, the court of the Member State having jurisdiction over the substance of the matter under this Regulation about the measures taken. The failure to provide such information should, however, not as such be a ground for the non-recognition of the measure.

(31)A court only having jurisdiction for provisional, including protective measures should, if seised with an application concerning the substance of the matter, declare of its own motion that it has no jurisdiction if a court of another Member State has jurisdiction as to the substance of the matter under this Regulation.

(32)If the outcome of proceedings before a court of a Member State not having jurisdiction under this Regulation depends on the determination of an incidental question falling within the scope of this Regulation, the courts of that Member State should not be prevented by this Regulation from determining that question. Therefore, if the object of the proceedings is, for instance, a succession dispute in which the child is involved and a guardian ad litem needs to be appointed to represent the child in those proceedings, the Member State having jurisdiction for the succession dispute should be allowed to appoint the guardian for the pending proceedings, regardless of whether it has jurisdiction for matters of parental responsibility under this Regulation. Any such determination should only produce effects in the proceedings for which it was made.

(33)If the validity of a legal act undertaken or to be undertaken on behalf of a child in succession proceedings before a court of a Member State requires permission or approval by a court, a court in that Member State should be able to decide whether to permit or approve such a legal act even if it does not have jurisdiction under this Regulation. The term legal act should include, for example, the acceptance or rejection of inheritance or an agreement between the parties on the sharing-out or the distribution of the estate.

(34)This Regulation should be without prejudice to the application of public international law concerning diplomatic immunity. Where jurisdiction under this Regulation cannot be exercised due to diplomatic immunity in accordance with international law, jurisdiction should be exercised in accordance with national law in a Member State in which the person concerned does not enjoy such immunity.

(35)This Regulation defines at what time a court is deemed to be seised for the purposes of this Regulation. In light of the two different systems existing in the Member States, which either require the document instituting the proceedings to be served upon the respondent first, or to be lodged with the court first, it should be sufficient for the first step under national law to have been taken, provided that the applicant has not subsequently failed to take any steps that he or she was required to take under national law in order to have the second step effected. Taking into account the growing importance of mediation and other methods of alternative dispute resolution, also during court proceedings, in accordance with the case-law of the Court of Justice, a court should also be deemed to be seised at the time when the document instituting the proceedings or an equivalent document is lodged with the court in cases where the proceedings have in the meantime been suspended, with a view to finding an amicable solution, upon application of the party who instituted them, without the document instituting the proceedings having yet been served upon the respondent and without the respondent having had knowledge about the proceedings or having participated in them in any way, provided that the party who instituted the proceedings has not subsequently failed to take any steps that he or she was required to take to have service effected on the respondent. According to the case-law of the Court of Justice, in the case of lis pendens, the date on which a mandatory conciliation procedure was lodged before a national conciliation authority should be considered as the date on which a court is deemed to be seised.

(36)Regulation (EC) No 1393/2007 of the European Parliament and of the Council (6) should apply to the service of documents in proceedings instituted pursuant to this Regulation.

(37)A court of a Member State seised of a case over which it has no jurisdiction as to the substance of the matter under this Regulation and over which a court of another Member State has jurisdiction as to the substance of the matter under this Regulation should declare of its own motion that it has no jurisdiction. However, a court of a Member State having a particular connection with the child in accordance with this Regulation should have the discretion to request a transfer of jurisdiction under this Regulation, but not an obligation to do so.

(38)In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable decisions will not be given in different Member States. There should be a clear and effective mechanism for resolving cases of lis pendens and related actions, and for obviating problems flowing from national differences as to the determination of the time when a case is regarded as pending. For the purposes of this Regulation, that time should be defined autonomously. However, in order to enhance the effectiveness of exclusive choice-of-court agreements, the provisions of this Regulation on lis pendens should not stand in the way where parents confer exclusive jurisdiction on the courts of a Member State.

(39)Proceedings in matters of parental responsibility under this Regulation as well as return proceedings under the 1980 Hague Convention should, as a basic principle, provide the child who is subject to those proceedings and who is capable of forming his or her own views, in accordance with the case-law of the Court of Justice, with a genuine and effective opportunity to express his or her views and when assessing the best interests of the child, due weight should be given to those views. The opportunity of the child to express his or her views freely in accordance with Article 24(1) of the Charter and in the light of Article 12 of the UN Convention on the Rights of the Child plays an important role in the application of this Regulation. The Regulation should, however, leave the question of who will hear the child and how the child is heard to be determined by national law and procedure of the Member States. Consequently, it should not be the purpose of this Regulation to set out whether the child should be heard by the judge in person or by a specially trained expert reporting to the court afterwards, or whether the child should be heard in the courtroom or in another place or through other means. In addition, while remaining a right of the child, hearing the child cannot constitute an absolute obligation, but must be assessed taking into account the best interests of the child, for example, in cases involving agreements between the parties.

Whilst, according to the case-law of the Court of Justice, it is not a requirement of Article 24 of the Charter and of Regulation (EC) No 2201/2003 that the court of the Member State of origin obtain the views of the child in every case by means of a hearing, and that that court thus retains a degree of discretion, the case-law also provides that, where that court decides to provide the opportunity for the child to be heard, the court is required to take all measures which are appropriate to the arrangement of such a hearing, having regard to the best interests of the child and the circumstances of each individual case, in order to ensure the effectiveness of those provisions, and to offer to the child a genuine and effective opportunity to express his or her views. The court of the Member State of origin should, in so far as possible and always taking into consideration the best interests of the child, use all means available to it under national law as well as the specific instruments of international judicial cooperation, including, when appropriate, those provided for by Council Regulation (EC) No 1206/2001 (7).

(40)In cases of the wrongful removal or retention of a child, the return of the child should be obtained without delay, and to that end the 1980 Hague Convention should continue to apply as complemented by this Regulation, in particular Chapter III.

(41)In order to conclude the return proceedings under the 1980 Hague Convention as quickly as possible, Member States should, in coherence with their national court structure, consider concentrating jurisdiction for those proceedings upon as limited a number of courts as possible. Jurisdiction for child abduction cases could be concentrated in one single court for the whole country or in a limited number of courts, using, for example, the number of appellate courts as point of departure and concentrating jurisdiction for international child abduction cases upon one court of first instance within each district of a court of appeal.

(42)In return proceedings under the 1980 Hague Convention, the courts at every instance should give their decision within six weeks, except where exceptional circumstances make this impossible. The fact that means of alternative dispute resolution are used should not as such be considered an exceptional circumstance allowing the timeframe to be exceeded. However, exceptional circumstances might arise while using such means or as a result of them. For a court of first instance, the timeframe should start at the moment that the court is seised. For a court of higher instance, it should start at the moment that all required procedural steps have been taken. Such steps could include, depending on the legal system concerned, service of the appeal upon the respondent, either within the Member State where the court is located or within another Member State, transmission of the file and the appeal to the appellate court in Member States where the appeal has to be lodged with the court whose decision is appealed, or an application by a party to convene a hearing where such an application is required under national law. Member States should also consider limiting the number of appeals possible against a decision granting or refusing the return of a child under the 1980 Hague Convention to one.

(43)In all cases concerning children, and in particular in cases of international child abduction, courts should consider the possibility of achieving solutions through mediation and other appropriate means, assisted, where appropriate, by existing networks and support structures for mediation in cross-border parental responsibility disputes. Such efforts should not, however, unduly prolong the return proceedings under the 1980 Hague Convention. Moreover, mediation might not always be appropriate, especially in cases of domestic violence. Where in the course of return proceedings under the 1980 Hague Convention, parents reach agreement on the return or non-return of the child, and also on matters of parental responsibility, this Regulation should, under certain circumstances, make it possible for them to agree that the court seised under the 1980 Hague Convention should have jurisdiction to give binding legal effect to their agreement, either by incorporating it into a decision, approving it or by using any other form provided by national law and procedure. Member States which have concentrated jurisdiction should therefore consider enabling the court seised with the return proceedings under the 1980 Hague Convention to exercise also the jurisdiction agreed upon or accepted by the parties pursuant to this Regulation in matters of parental responsibility where agreement of the parties was reached in the course of those return proceedings.

(44)The court of the Member State to or in which the child has been wrongfully removed or retained should be able to refuse the return in specific, duly justified cases, as permitted by the 1980 Hague Convention. Before doing so, it should consider whether appropriate measures of protection have been put in place or might be taken to protect the child from the grave risk referred to in point (b) of Article 13(1) of the 1980 Hague Convention.

(45)Where a court considers refusing to return a child solely on the basis of point (b) of Article 13(1) of the 1980 Hague Convention, it should not refuse to return the child if either the party seeking the return of the child satisfies the court, or the court is otherwise satisfied, that adequate arrangements have been made to secure the protection of the child after his or her return. Examples for such arrangements could include a court order from that Member State prohibiting the applicant to come close to the child, a provisional, including protective measure from that Member State allowing the child to stay with the abducting parent who is the primary carer until a decision on the substance of rights of custody has been made in that Member State following the return, or the demonstration of available medical facilities for a child in need of treatment. Which type of arrangement is adequate in the particular case should depend on the concrete grave risk to which the child is likely to be exposed by the return without such arrangements. The court seeking to establish whether adequate arrangements have been made should primarily rely on the parties and, where necessary and appropriate, request the assistance of Central Authorities or network judges, in particular within the European Judicial Network in civil and commercial matters, as established by Council Decision 2001/470/EC (8), and the International Hague Network of Judges.

(46)Where appropriate, when ordering the return of the child, it should be possible for the court to order any provisional, including protective measures pursuant to this Regulation which it considers necessary to protect the child from the grave risk of physical or psychological harm entailed by the return which would otherwise lead to a refusal of return. Such provisional measures and their circulation should not delay the return proceedings under the 1980 Hague Convention or undermine the delimitation of jurisdiction between the court seised with the return proceedings under the 1980 Hague Convention and the court having jurisdiction on the substance of parental responsibility under this Regulation. If necessary, the court seised with the return proceedings under the 1980 Hague Convention should consult with the court or competent authorities of the Member State of the habitual residence of the child, with the assistance of Central Authorities or network judges, in particular within the European Judicial Network in civil and commercial matters and the International Hague Network of Judges. Those measures should be recognised and enforced in all other Member States including the Member States having jurisdiction under this Regulation until a court of such a Member State has taken the measures it considers appropriate. Such provisional, including protective, measures could include, for instance, that the child should continue to reside with the primary care giver or how contact with the child should take place after return until the court of the habitual residence of the child has taken measures it considers appropriate. This should be without prejudice to any measure or decision of the court of the habitual residence taken after the return of the child.

(47)It should be possible for a decision ordering the return of the child to be declared provisionally enforceable, notwithstanding any appeal, where the return of the child before the decision on the appeal is required by the best interests of the child. National law can specify by which court the decision can be declared provisionally enforceable.

(48)Where the court of the Member State to or in which the child has been wrongfully removed or retained decides to refuse the return of the child under the 1980 Hague Convention, in its decision it should refer explicitly to the relevant articles of the 1980 Hague Convention on which the refusal was based. Regardless of whether such a refusal decision is final or still subject to appeal, it might however be replaced by a subsequent decision, given in custody proceedings by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. In the course of these proceedings, all the circumstances, including, but not limited to, the conduct of the parents, should be thoroughly examined, taking into account the best interests of the child. Should the resulting decision on the substance of rights of custody entail the return of the child, the return should take place without any special procedure being required for the recognition and enforcement of that decision in any other Member State.

(49)The court refusing the return of the child on the sole basis of point (b) of Article 13(1), or of Article 13(2), or both, of the 1980 Hague Convention should, of its own motion, issue a certificate using the appropriate form set out in this Regulation. The purpose of this certificate is to inform the parties of the possibility to seise a court in the Member State where the child was habitually resident immediately before the wrongful removal or retention, within three months of the notification of the decision refusing the return of the child, with applications regarding the substance of rights of custody, or, if that court is already seised, to communicate to the court relevant documents relating to the return proceedings.

(50)Where proceedings on the substance of rights of custody are already pending in the Member State where the child was habitually resident immediately before the wrongful removal or retention at the time that a court seised with a return application under the 1980 Hague Convention refuses the return of the child on the sole basis of point (b) of Article 13(1), or of Article 13(2), or both, of the 1980 Hague Convention, the court which refused the return of the child should, if it is aware of those proceedings, transmit within one month of the date of its decision a copy of the decision, the appropriate certificate and, where applicable, a transcript, summary or minutes of the hearing as well as any other documents it considers relevant to the court seised with the proceedings on the substance of rights of custody. The term any other documents it considers relevant should refer to any documents which contain information that might have a bearing on the outcome of those custody proceedings, if such information is not already contained in the decision refusing return.

(51)Where no proceedings on the substance of rights of custody are yet pending in the Member State where the child was habitually resident immediately before the wrongful removal or retention and a party seises a court of that Member State within three months following the date of the notification of the decision not to return the child, that party should submit to the court seised with the application on the substance of rights of custody, a copy of the decision not to return the child under the 1980 Hague Convention, the appropriate certificate and, where applicable, a transcript, summary or minutes of the hearing. This does not preclude the court seised from asking for any additional documents it considers relevant, which contain information that might have a bearing on the outcome of the proceedings on the substance of rights of custody, if such information is not already contained in the decision refusing return.

(52)If the court having jurisdiction over the substance of rights of custody has been seised by a party within three months of the notification of the decision refusing the return of the child under the 1980 Hague Convention, or if custody proceedings were already pending before that court at the moment it received that decision from the court having refused the return of the child, any decision resulting from those proceedings regarding the substance of rights of custody which entails the return of the child to that Member State should be enforceable in any other Member State in accordance with Section 2 of Chapter IV of this Regulation without any special procedure being required and without any possibility of opposing its recognition. This should apply unless and to the extent that irreconcilability with a later decision relating to parental responsibility concerning the same child is found to exist, provided that a certificate for privileged decisions has been issued for the decision on the substance of rights of custody entailing the return of the child. If the court having jurisdiction over the substance of rights of custody is seised after the three months have expired, or the conditions for issuing a certificate for such privileged decisions are not met, the resulting decision on the substance of rights of custody should be recognised and enforced in other Member States in accordance with Section 1 of Chapter IV of this Regulation.

(53)Without prejudice to other Union instruments, where it is not possible to hear a party or a child in person, and where the technical means are available, the court might consider holding a hearing through videoconference or by means of any other communication technology unless, on account of the particular circumstances of the case, the use of such technology would not be appropriate for the fair conduct of the proceedings.

(54)Mutual trust in the administration of justice in the Union justifies the principle that decisions in matrimonial matters and in matters of parental responsibility given in a Member State should be recognised in all Member States without the need for any recognition procedure. In particular, when presented with a decision given in another Member State and granting divorce, legal separation or marriage annulment which can no longer be challenged in the Member State of origin, the competent authorities of the requested Member State should recognise the decision by operation of law without any special procedure being required and update their civil status records accordingly. It is left to national law whether the grounds for refusal may be raised by a party or ex officio as provided by national law. This does not preclude any interested party from applying, in accordance with this Regulation, for a decision that there are no grounds for refusal of recognition as referred to in this Regulation. It should be for the national law of the Member State where such application is made to determine who can be considered as an interested party entitled to make such application.

(55)The recognition and enforcement of decisions, authentic instruments and agreements given in a Member State should be based on the principle of mutual trust. Therefore the grounds for non-recognition should be kept to the minimum in the light of the underlying aim of this Regulation which is to facilitate recognition and enforcement and to effectively protect the best interests of the child.

(56)The recognition of a decision should be refused only if one or more of the grounds for refusal of recognition provided for in this Regulation are present. The list of grounds for refusal of recognition in this Regulation is exhaustive. It should not be possible to invoke as grounds for refusal, grounds which are not listed in this Regulation, such as, for example, a violation of the lis pendens rule. In matters of parental responsibility, a later decision always supersedes an earlier decision with effect for the future to the extent that they are irreconcilable.

(57)As concerns the opportunity given to a child to express his or her views, it should be for the court of origin to decide about the appropriate method for hearing a child. Therefore, it should not be possible to refuse recognition of a decision on the sole ground that the court of origin used a different method to hear the child than a court in the Member State of recognition would use. The Member State where recognition is invoked should not refuse recognition where one of the exceptions from this particular ground for refusal as permitted by this Regulation applies. The effect of those exceptions is that it should not be possible for a court in the Member State of enforcement to refuse to enforce a decision on the sole ground that the child was not given the opportunity to express his or her views, taking into account his or her best interests, if the proceedings only concerned the property of the child and provided that giving such an opportunity was not required in light of the subject matter of the proceedings, or in the case of the existence of serious grounds taking into account, in particular, the urgency of the case. Such serious grounds could be given, for instance, where there is imminent danger for the child's physical and psychological integrity or life and any further delay might bear the risk that this danger materialises.

(58)In addition, the aim of making cross-border litigation concerning children less time consuming and costly justifies the abolition of the declaration of enforceability or the registration for enforcement, as applicable, prior to enforcement in the Member State of enforcement for all decisions in matters of parental responsibility. While Regulation (EC) No 2201/2003 only abolished this requirement for certain decisions granting rights of access and certain decisions entailing the return of a child, this Regulation should abolish it for the cross-border enforcement of all decisions in matters of parental responsibility while still retaining an even more favourable treatment of certain decisions granting rights of access and certain decisions entailing the return of a child. As a result, subject to this Regulation, a decision given by the court of any other Member State should be treated as if it had been given in the Member State of enforcement.

(59)Where provisional, including protective, measures are ordered by a court having jurisdiction as to the substance of the matter, the circulation of those measures should be ensured under this Regulation. However, provisional, including protective, measures which were ordered by such a court without the defendant being summoned to appear should not be recognised and enforced under this Regulation unless the decision containing the measure is served on the defendant prior to enforcement. This should not preclude the recognition and enforcement of such measures under national law. Where provisional, including protective, measures are ordered by a court of a Member State not having jurisdiction as to the substance of the matter, their circulation should be confined, under this Regulation, to measures taken in international child abduction cases and aimed at protecting the child from the grave risk referred to in point (b) of Article 13(1) of the 1980 Hague Convention. Those measures should apply until a court of a Member State having jurisdiction over the substance of the matter under this Regulation has taken the measures it considers appropriate.

(60)As enforcement procedures could be judicial or extra-judicial depending on national law, authorities competent for enforcement could include courts, bailiffs and any other authorities as determined by national law. Where, in addition to authorities competent for enforcement, courts are also mentioned in this Regulation, this should cover cases where, under national law, a body other than a court is the authority competent for enforcement, but certain decisions are reserved to courts, either from the outset or in the form of reviewing the acts of the authority competent for enforcement. It should be for the authority competent for enforcement or the court of the Member State of enforcement to order, take or arrange for specific measures to be taken at the enforcement stage, such as any non-coercive measures which might be available under the national law of that Member State, or any coercive measures which might be available under that law, including fines, imprisonment or the fetching of the child by a bailiff.

(61)In order to facilitate enforcement of decisions on the exercise of rights of access from another Member State, authorities competent for enforcement or the courts in the Member State of enforcement should be entitled to specify details regarding practical circumstances or legal conditions required under the law of the Member State of enforcement. The arrangements provided for in this Regulation should facilitate enforcement of a decision in the Member State of enforcement, which might not otherwise be enforceable because of its vagueness, so that the authority competent for enforcement or the court of enforcement can make the decision more concrete and precise. Also any other arrangements to comply with legal requirements under the national enforcement law of the Member State of enforcement, such as, for example, the participation of a child protection authority or a psychologist at the enforcement stage, should be made in the same way. However, any such arrangements should not interfere with, or go beyond, the essential elements of the decision on the rights of access. Moreover, the power under this Regulation to adjust measures should not allow the court of enforcement to replace measures that are unknown in the law of the Member State of enforcement, with different measures.

(62)The enforcement in a Member State of a decision given in another Member State without a declaration of enforceability should not jeopardise the respect for the rights of the defence. Therefore, the person against whom enforcement is sought should be able to apply for refusal of the recognition or enforcement of a decision if he or she considers one of the grounds for refusal of recognition or enforcement of this Regulation to be present. It is for national law to determine whether the grounds for refusal of recognition set out in this Regulation are to be examined ex officio or upon application. Therefore, the same examination should be possible in the context of the refusal of enforcement. The application of any national ground for refusal should not have the effect of extending the conditions and modalities of the grounds provided for under this Regulation.

(63)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 of enforcement, be able to do so in the procedure for enforcement and should be able to raise, within one procedure, in addition to the grounds for refusal provided for in this Regulation, the grounds for refusal available under the law of the Member State where enforcement is sought which would continue to apply because they are not incompatible with the grounds provided for in this Regulation. Those grounds could include, for example, challenges based on formal errors under national law in an act of enforcement or on the assertion that the action required by the decision has already been performed or has become impossible, for instance, in case of force majeure, serious illness of the person to whom the child is to be handed over, the imprisonment or death of that person, the fact that the Member State to which the child is to be returned has turned into a war zone after the decision was given, or the refusal of enforcement of a decision which under the law of the Member State where enforcement is sought does not have any enforceable content and cannot be adjusted to this effect.

(64)In order to inform the person against whom enforcement is sought of the enforcement of a decision given in another Member State, the certificate established under this Regulation, if necessary accompanied by the decision, should be served on that person in reasonable time before the first enforcement measure. In this context, the first enforcement measure should mean the first enforcement measure after such service. According to the case-law of the Court of Justice, the party against whom enforcement is sought has a right to an effective remedy, which includes the possibility of commencing proceedings to challenge the enforceability of the decision prior to the actual start of enforcement.

(65)In matters of parental responsibility, enforcement will always concern a child and in many cases the handover of a child to a person other than the person with whom the child is residing at that time and/or the relocation of the child to another Member State. The primary objective should thus be to strike the right balance between the right of the applicant, as a principle, to obtain implementation of a decision as quickly as possible also in cross-border cases within the Union and, if need be, also by applying coercive measures, and the need to limit, as far as possible, exposure of the child to such possibly traumatising coercive enforcement measures in cases where this cannot be avoided. This assessment should be made by the authorities competent for enforcement and the courts in each Member State in the light of each individual case.

(66)This Regulation seeks to establish a level playing field as regards the cross-border enforcement of decisions in matters of parental responsibility among Member States. In a number of Member States, these decisions are already enforceable even if they are still subject to appeal, or already under appeal. In other Member States, only a final decision no longer subject to ordinary appeal is enforceable. In order to cater for situations of urgency, this Regulation therefore provides that certain decisions in matters of parental responsibility might be declared provisionally enforceable by the court of the Member State of origin even if still subject to appeal, namely decisions ordering the return of a child under the 1980 Hague Convention and decisions granting rights of access.

(67)In enforcement procedures concerning children, however, it is important for the authorities competent for enforcement or the courts to be able to react swiftly to a relevant change of circumstances, including challenges against the decision in the Member State of origin, loss of enforceability of the decision and obstacles or emergency situations they encounter at the enforcement stage. Therefore, the enforcement proceedings should be suspended, upon application or of the authority's or court's own motion, where the enforceability of the decision is suspended in the Member State of origin. The authority or court competent for enforcement should, however, not be obliged to investigate actively whether in the meantime enforceability has been suspended, following an appeal or otherwise, in the Member State of origin if there is no indication that this is the case. Moreover, the suspension or refusal of enforcement in the Member State of enforcement should be upon application and, even where one or more of the grounds contained in or permitted by this Regulation are found to exist, the suspension or refusal of enforcement in the Member State of enforcement should be left to the discretion of the authority competent for enforcement or the court.

(68)Where the decision is still subject to appeal in the Member State of origin and the time for lodging an ordinary appeal has not yet expired, the authority competent for enforcement or the court in the Member State of enforcement should have the discretion, upon application, to suspend, the enforcement proceedings. In those cases it may specify the time-limit by which any appeal is to be lodged in the Member State of origin, in order to obtain or maintain the suspension of enforcement proceedings. The specification of a time-limit should only have effect for the suspension of the enforcement proceedings and should not affect the deadline for lodging an appeal according to the procedural rules of the Member State of origin.

(69)In exceptional cases, it should be possible for the authority competent for enforcement or the court to suspend the enforcement proceedings if enforcement would expose the child to a grave risk of physical or psychological harm due to temporary impediments which have arisen after the decision was given, or by virtue of any other significant change of circumstances. Enforcement should be resumed as soon as the grave risk of physical or psychological harm ceases to exist. If it continues to exist, however, before refusing enforcement any appropriate steps should be taken in accordance with national law and procedure including, where appropriate, with the assistance of other relevant professionals, such as social workers or child psychologists, to try to ensure implementation of the decision. In particular, the authority competent for enforcement or the court should, in accordance with national law and procedure, try to overcome any impediments created by a change of circumstances, such as, for example, manifest objection of the child voiced only after the decision was given which is so strong that, if disregarded, it would amount to a grave risk of physical or psychological harm for the child.

(70)Authentic instruments and agreements between parties on legal separation and divorce which have binding legal effect in one Member State should be treated as equivalent to decisions for the purpose of the application of the rules on recognition. Authentic instruments and agreements between parties in matters of parental responsibility which are enforceable in one Member State should be treated as equivalent to decisions for the purpose of the application of the rules on recognition and enforcement.

(71)Although the obligation to provide the child with the opportunity to express his or her views under this Regulation should not apply to authentic instruments and agreements, the right of the child to express his or her views should continue to apply pursuant to Article 24 of the Charter and in light of Article 12 of the UN Convention on the Rights of the Child as implemented by national law and procedure. The fact that the child was not given the opportunity to express his or her views should not automatically be a ground of refusal of recognition and enforcement of authentic instruments and agreements in matters of parental responsibility.

(72)In matters of parental responsibility, Central Authorities should be designated in all Member States. Member States should consider designating the same Central Authority for this Regulation as designated for the 1980 and 1996 Hague Conventions. Member States should ensure that Central Authorities have adequate financial and human resources to enable them to carry out the tasks assigned to them under this Regulation.

(73)The provisions of this Regulation on cooperation in matters of parental responsibility should not apply to the processing of return applications under the 1980 Hague Convention which, in accordance with Article 19 of that Convention and the established case-law of the Court of Justice, are not proceedings on the substance of parental responsibility. The application of the 1980 Hague Convention should, however, be complemented by the provisions of this Regulation on international child abduction and by the Chapter of this Regulation on recognition and enforcement and the Chapter on general provisions.

(74)Central Authorities should assist courts and competent authorities, and in certain cases also holders of parental responsibility, in cross-border procedures and cooperate both in general matters and in specific cases, including for the purposes of promoting the amicable resolution of family disputes.

(75)Except in urgent cases, and without prejudice to the direct cooperation and communication between courts permitted under this Regulation, requests pursuant to this Regulation concerning cooperation in matters of parental responsibility could be made by courts and competent authorities and should be submitted to the Central Authority of the Member State of the requesting court or competent authority. Certain requests could also be made by holders of parental responsibility and should be submitted to the Central Authority of the applicant's habitual residence. Such requests should include requests to provide information and assistance to holders of parental responsibility seeking the recognition and enforcement of decisions in the territory of the requested Central Authority, in particular concerning rights of access and the return of the child, including, where necessary, information on how to obtain legal aid; requests to facilitate agreement between holders of parental responsibility through mediation or other means of alternative dispute resolution, and requests for a court or competent authority to consider the need to take measures for the protection of the person or property of the child.

(76)An example of an urgent case permitting direct initial contact with the court or competent authority of the requested Member State is a direct request to the competent authority of another Member State to consider the need to take measures for the protection of the child where the child is presumed to be at imminent risk. The obligation to proceed through Central Authority channels should only be mandatory for initial requests; any subsequent communication with the court, competent authority or applicant might also take place directly.

(77)Central Authorities or competent authorities should not be precluded from entering into or maintaining existing agreements or arrangements with Central Authorities or competent authorities of one or more other Member States allowing direct communications in their mutual relations. Competent authorities should inform their Central Authorities about such agreements or arrangements.

(78)In specific cases in matters of parental responsibility which fall within the scope of this Regulation, Central Authorities should cooperate with each other in providing assistance to courts and competent authorities as well as to holders of parental responsibility. The assistance provided by the requested Central Authority should in particular include locating the child, either directly or through courts, competent authorities or other bodies, where this is necessary for carrying out a request under this Regulation, and providing any other information relevant in procedures in matters of parental responsibility.

(79)Requested Central Authorities should also take all appropriate steps to facilitate communication between courts, where necessary, in particular for the application of the rules on transfer of jurisdiction, on provisional, including protective measures in urgent cases, in particular where they are related to international child abduction and aimed at protecting the child from the grave risk referred to in point (b) of Article 13(1) of the 1980 Hague Convention, and on lis pendens and dependent actions. To this effect, it is possible that providing information for further direct communication is sufficient in some cases, for example, providing contact details of child welfare authorities, network judges or the competent court.

(80)In order to achieve the objectives of this Regulation and without prejudice to any requirements under its national procedural law, a requesting court or competent authority should have the discretion to choose freely between the different channels available to it for obtaining the necessary information.

(81)Where a request with supporting reasons for a report or any other information relevant in procedures in matters of parental responsibility in the requesting Member State is made, the Central Authorities, directly or through the courts, competent authorities or other bodies of the requested Member State should carry out such a request. The request should contain, in particular, a description of the procedures for which the information is needed and the factual situation that gave rise to those procedures.

(82)Where a court of a Member State has already given a decision in matters of parental responsibility or is contemplating such a decision and the implementation of the decision is to take place in another Member State, the court should be able to request that the courts or competent authorities of that other Member State assist in the implementation of the decision. This should apply, for instance, to decisions granting supervised access which is to be exercised in a Member State other than the Member State where the court ordering access is located or involving any other accompanying measures of the courts or competent authorities in the Member State where the decision is to be implemented.

(83)Where a court or competent authority of a Member State considers the placement of a child in another Member State, a consultation procedure for obtaining consent should be carried out prior to the placement. The court or competent authority considering the placement should obtain the consent of the competent authority of the Member State in which the child would be placed before ordering or arranging the placement. Moreover, in line with the case-law of the Court of Justice, Member States should establish clear rules and procedures for the purposes of consent to be obtained pursuant to this Regulation, in order to ensure legal certainty and expedition. The procedures should, inter alia, enable the competent authority to grant or refuse its consent promptly. The absence of a reply within three months should not be understood as consent and without consent the placement should not take place. The request for consent should include at least a report on the child together with the reasons for the proposed placement or provision of care, the expected duration of the placement, information on any contemplated funding, supplemented by any other information which the requested Member State might consider pertinent such as any envisaged supervision of the measure, arrangements for contact with the parents, other relatives or other persons with whom the child has a close relationship, or the reasons why such contact is not contemplated in light of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Taking into consideration the case-law of the Court of Justice, where consent to placement has been given for a specified period of time, that consent should not apply to decisions or arrangements extending the duration of the placement. In such circumstances, a new request for consent should be made.

(84)Where a decision on the placement of a child in institutional or foster care is being contemplated in the Member State of the habitual residence of the child, the court should consider, at the earliest stage of the proceedings, appropriate measures to ensure respect of the rights of the child, in particular the right to preserve his or her identity and the right to maintain contact with the parents, or, where appropriate, with other relatives, in light of Articles 8, 9 and 20 of the UN Convention on the Rights of the Child. Where the court is aware of a close connection of the child with another Member State, appropriate measures could in particular include, where point (b) of Article 37 of the Vienna Convention on Consular Relations is applicable, a notification to the Consular body of that Member State. Such awareness might also be raised by information provided by the Central Authority of that other Member State. Appropriate measures could also include a request pursuant to this Regulation to that Member State for information about a parent, a relative or other persons who could be suitable to care for the child. Moreover, depending on the circumstances, the court might also request information on procedures and decisions concerning a parent or siblings of the child. The best interests of the child should remain the paramount consideration. In particular, none of those provisions should affect national law or procedure applicable to any placement decision made by the court or competent authority in the Member State contemplating the placement. In particular, those provisions should not place any obligation on the authorities of the Member State having jurisdiction to place the child in the other Member State or further involve that Member State in the placement decision or proceedings.

(85)As time is of the essence in matters of parental responsibility, the information requested under the provisions of this Regulation on cooperation, including on collecting and exchanging information relevant in procedures in matters of parental responsibility, and the decision granting or refusing consent for the placement of a child in another Member State should be transmitted to the requesting Member State by the Central Authority of the requested Member State no later than three months following the receipt of the request, except where exceptional circumstances make this impossible. This should include the obligation of the competent national authority to provide the information, or explain why it cannot be provided, to the requested Central Authority in such time as to enable it to comply with that timeframe. Nonetheless, all competent authorities involved should strive to provide the reply even more quickly than within this maximum timeframe.

(86)The fact that the meetings of Central Authorities are to be convened, in particular, by the Commission within the framework of the European Judicial Network in civil and commercial matters in compliance with Decision 2001/470/EC, should not preclude other meetings of the Central Authorities from being organised.

(87)Unless this Regulation provides otherwise, Regulation (EU) 2016/679 of the European Parliament and of the Council (9) should apply to the processing of personal data by the Member States carried out in application of this Regulation. In particular, in order not to jeopardise the carrying out of a request under this Regulation, for example for the return of the child in accordance with the 1980 Hague Convention or for a court to consider the need to take measures for the protection of the person or property of the child, the notification of the data subject as required by Article 14(1)-(4) of Regulation (EU) 2016/679, for example about data requested for locating the child, may be deferred until the request for which this information is required has been carried out. This exception is made in accordance with Article 14(5) as well as points (f), (g), (i) and (j) of Article 23(1) of Regulation (EU) 2016/679. This should not preclude an intermediary, court or competent authority to which the information has been transmitted, from taking measures for the protection of the child, or causing such measures to be taken, where the child is at risk of harm or there are indications for such a risk.

(88)In cases where a disclosure or confirmation of the relevant information could jeopardise the health, safety or liberty of the child or another person, for example where domestic violence has occurred and a court ordered the new address of the child not to be disclosed to the applicant, this Regulation strives to strike a delicate balance. While this Regulation should provide that a Central Authority, court or competent authority should not disclose or confirm to the applicant or to a third party any information gathered or transmitted for the purposes of this Regulation if it determines that to do so could jeopardise the health, safety or liberty of the child or another person, it should nonetheless underline that that should not impede the gathering and transmitting of information by and between Central Authorities, courts and competent authorities in so far as necessary to carry out the obligations under this Regulation. This means that where possible and appropriate, it should be possible for an application to be processed under this Regulation without the applicant being provided with all information necessary to process it. For example, where national law so provides, a Central Authority might institute proceedings on behalf of an applicant without passing on the information about the child's whereabouts to the applicant. However, in cases where merely making the request could already jeopardise the health, safety or liberty of the child or another person, there should not be an obligation under this Regulation to make such request.

(89)In order to ensure that the certificates to be used in conjunction with the application of Chapters III and IV of this Regulation are kept up to date, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union (TFEU) should be delegated to the Commission in respect of amendments to Annexes I to IX to this Regulation. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (10). In particular, to ensure equal participation in the preparation of delegated acts, the Council receives all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(90)Continuity between the 1998 Convention drawn up on the basis of Article K.3 of the Treaty on European Union on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters ('Brussels II Convention') (11), Regulation (EC) No 1347/2000, Regulation (EC) No 2201/2003 and this Regulation should be ensured to the extent that the provisions have remained unchanged, and transitional provisions should be laid down to that end. The same need for continuity applies as regards the interpretation, including by the Court of Justice, of the Brussels II Convention and of the Regulations (EC) No 1347/2000 and (EC) No 2201/2003.

(91)It is recalled that for agreements with one or more third States concluded by a Member State before the date of its accession to the Union, Article 351 TFEU applies.

(92)The law applicable in matters of parental responsibility should be determined in accordance with the provisions of Chapter III of the 1996 Hague Convention. When applying that Convention in proceedings before a court of a Member State in which this Regulation applies, the reference in Article 15(1) of that Convention to the provisions of Chapter II of that Convention should be understood as referring to the provisions of this Regulation.

(93)For the proper functioning of this Regulation, the Commission should assess its application and propose such amendments as appear necessary.

(94)The Commission should make publicly available and update the information communicated by the Member States.

(95)In accordance with Article 3 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union (TEU) and to the TFEU, those Member States have notified their wish to take part in the adoption and application of this Regulation.

(96)In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(97)The European Data Protection Supervisor was consulted in accordance with the second subparagraph of Article 41(2) and Article 46(d) of Regulation (EC) No 45/2001 of the European Parliament and of the Council (12) and delivered an opinion on 15 February 2018 (13).

(98)Since the objectives of this Regulation cannot be sufficiently achieved by the Member States because of the differences between national rules governing jurisdiction and the recognition and enforcement of decisions, but can rather, by reason of the direct applicability and binding nature of this Regulation, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives,