Brussels IIa re-cast

Summary of the main changes proposed

 

The Commission proposes to re-cast BIIa. This means repeal and replacement by a new Regulation. The old Regulation will therefore lapse (subject to any transitional provisions) and new cases which do not fall within BIIa Recast will for those who do not adopt BIIa not be covered by either BIIa or BIIa Recast.

For the UK we would be like Denmark – although the 1996  HC or the Luxembourg Convention might apply.

 

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. 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.
• 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.
• 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.
  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

NB: This is not quite what it sounds!

• 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 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.
  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.. 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.
  Introduction of targeted measures to improve the efficiency of actual enforcement
• 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 (i.e.e pending appeal) even if this possibility does not exist in its national law..
  Clarification of the Central Authorities' and other requested authorities’ tasks plus addition of an article on adequate resources
• The proposal clarifies the following aspects: (1) who can ask (2) which assistance or information (3) from whom and (4) under which conditions.. 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. 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.
• 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 following Articles remain unchanged in the meaning of a Recast: 1, 2, 3, 4, 5, 6, 7, 8(2), 9, 10, 11(1), (2), (3), (5), (7), 12(2), (4), 13,14, 15(1)-(5), 16, 17, 18, 19, 20(2), 21(1), (2), (4), 22, 23(a), (c)-(f), 24, 25, 26, 27, 41(2), 42(2), 44, 48, 49, 51, 53, 54, 55(b)-(e), 56 (2), (3), 58, 59(1), 60(a)-(d), 63, 66, 67 (a), (b).
   
  David Williams QC