Response: EU proposal to revise Brussels II recast
This response has been prepared by members of Resolution’s International Committee who have extensive practical experience of the current Regulation.
Proposals concerning the return of the abducted child
Proposal: Article 22 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.
This is welcomed as a crucial element to ensure a child is returned in a timely and appropriate fashion. It could also reduce the number of appeals in child abduction cases. It is hoped a consistency of approach is then developed within Countries particularly with the promotion of judicial liaison which must be fundamental to the smooth running of the proceedings EU wide.
Proposal: Article 23 To expedite proceedings a time limit should be clearly imposed for each stage – 6 + 6+ 6 weeks
1. Central Authorities (Article 63) to work under a six-week time limit to receive and process the application -. 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).
2. A separate six-week time limit would apply to the proceedings before the first instance court.
3. A separate six-week time limit would apply to the proceedings before the appellate court.
The time limits are to be broadly welcomed. However one cannot limit appeals to one alone, as this would have a serious impact on the UK which has a common law jurisdiction and relies on case law precedent to deal with changing times. This imposition would cause injustice and fail to take account of societal changes and the different systems of law across Countries. Perhaps subsequent Appeals should also have a six week limit? (Also is Article 23 clear in its wording?).
In this jurisdiction we have a system where permission to appeal is required. Presumably “the permission stage” and appeal should be within the six week time limit. The permission to appeal stage provides a filter so that only the more complex case where there is a chance of success gets past stage 2.
Proposal: Article 25(4) To limit the number of possibilities to appeal a decision on return to one and Article 25(3) explicitly invites a judge to consider whether a decision ordering a return should be provisionally enforceable.
See above in relation to only one appeal. Perhaps consideration should be given to introducing a permission stage before an appeal can be listed thus providing the necessary filter without causing injustice.
It is welcomed that a Judge is explicitly invited to consider that a return order should be provisionally enforceable. It would also be of assistance for a time scale to be given to any provisional enforcement order (i.e. within 14 days). However to avoid a “return” before an appeal is heard then perhaps a provision for “stay of execution” should be considered as we have in our jurisdiction.
Proposal: Article 26 To oblige 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.
This is sensible as it adds certainty and a proper time format to the procedure in the original “home”country following a refusal to return under Article 13 Hague 1980.
Proposal: Articles 20 and 24 When conducting an 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.
This is a clarification of the current rules. In addition there would be a requirement for mutual recognition between the legal systems that the voice of the child will be heard and therefore this proposed amendment must be welcomed. Whilst in the ‘proposal section’ it is couched as if it impacts only on a return under Article 13 Hague 1980 – it actually is in the chapter on “common provisions” (Article 20) and therefore applies to all welfare decisions “where considering the best interests of the child” relating to a child under Article 2.
With the mutual recognition there would then be an assumption that the child had been appropriately heard and therefore this would no longer be a ground of refusal to recognise a judgment on the basis that the hearing of the child was not carried out in accordance with the standards of the Member State where recognition or enforcement is sought.
Proposal: Articles 32 and 33 Additional provisional including protective measures ordered in urgent cases would be enforceable in other Member States. 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.
This is to be welcomed as it covers not only protective measures and orders (for say a prohibited steps order ) to be enforceable until the (home) Court is seised, but it also ensures protective “measures” such as Undertakings could become enforceable even if the concept is not currently known in all Member States. The Court seised could either treat them as an order in that State which would then be legally binding in both jurisdictions or if it is “recognised as a concept” it remain as an Undertaking. Either way this means protective measures will have more teeth and will provide greater protection.
“Where a decision contains a measure or an order which is not known in the law of the Member State of enforcement, the courts of that Member State shall adapt that measure or order, to the extent possible, to a measure or an order known in the law of that Member State which has equivalent effects attached to it and which pursues similar aims and interests.” (Article 33(2))
We would propose that a non- exhaustive list of “protective measures” could be prepared (for either the ‘definitions’ section or perhaps the best practice guide?) which could include measures that Member States rely upon together with their use from both a practical and a legal perspective.
Proposals concerning Cross border placements
Proposal: Article 65 Creation of an autonomous consent procedure to be applied to all crossborder placements, flanked by a time limit of eight weeks for the requested Member State to
respond to the request.
These provisions, which include the involvement of Central Authorities, mandatory consent within time limits and a uniformity in information requirements, should assist and facilitate
cross border placement of children in a safer manner than hitherto so should be broadly welcomed. Presumably the appropriate local authority provides the information to their Central Authority for transmission each way. Presently different countries deal with the consent procedure for cross-border placements in different timescales and significant delays can ensue which is inimical to the best interests of the child. The proposal to time limit and therefore speed up this procedure is welcomed.
Abolition of Exequatur and Enforcement provisions
Proposal: 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.
We welcome this. The current procedure is slow and cumbersome. What impact would it have intra-UK?
It would be helpful if the certificates used had more recognition and were used automatically in other jurisdictions. Some orders in some Courts in some jurisdictions are not even printed out as “orders” or “convenio’s” and it can take time to get a document that looks like it is authorized by the Court let alone one with an appropriate certificate that are automatically attached here.
Proposal: Articles 30 to 36 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.
This coupled with the above (abolition of exequatur) should simplify and codify the procedure as it gives the Court of the Member State the obligation to list and determine enforcement and the adequate interpretation of the same in the jurisdiction. It also means there is one procedure for dealing with the matter. We should also welcome the need to inform the original Member State as to the outcome of the enforcement procedure. This should assist in ensuring there are not competing orders in different states – where for example an order has been modified or varied due to a change in circumstances. Providing the ability to be flexible around enforcement is clearly a helpful step forward as otherwise the orders become redundant.
Central Authorities and their roles
Proposal: Articles 61, 63 & 64 To further clarify and identify the roles of Central Authorities and ensure they receive adequate resourcing.
This must be desirable as the efficient working of the Central Authority is central to the good working of the Regulation in the Courts of each Member State.