International Child Abduction in light of Brussels II ter
As of August 01, 2022, a new Regulation 2019/1111 on jurisdiction, recognition and enforcement of judgments in matrimonial matters, parental responsibility and international child abduction, the so-called Brussels II ter, has been in force in the European Union, having replaced the earlier Regulation Brussels II bis. The new regulation aimed in particular at strenghtening the rights of children in proceedings in order to improve the cooperation of judicial and administrative authorities and the enforcement of family law judgments from a cross-border angle.
The Brussels II ter Regulation refers, among others, to cases conducted under the 1980 Hague Convention on the civil aspects of international child abduction, drawn up in Hague on October 25, 1980(Official Journal of Laws of September 25, 1995). The main purpose of the Convention is to counteract the negative effects of international child abduction or retention (Preamble, Article 1(a)). Proceedings initiated under the provisions of the Convention are intended to restore the factual and legal status that had existed before the wrongful abduction or retention of a child.
Brussels II ter vs Hague Convention
The Brussels II ter Regulation comprehensively regulates the subject of child abduction, indicating that the 1980 Hague Convention on the civil aspects of international child abduction should be applied to proceedings to order the return of a child. This act contains extensive new provisions on international child abduction. These provisions, particularly Chapter III (Articles 22-29) of the Regulation supplement the regulation of the 1980 Hague Convention on International Child Abduction.
The introduction of this regulation directly referring to the measures provided for in the 1980 Hague Convention fills the gap that existed in the Brussels II bis regulation.
According to the Brussels II ter Regulation, a petition for the return of an abducted child may be filed if there has been an unlawful abduction or retention of a child under the age of 16, to a country other than the country of the child’s habitual residence immediately before the abduction.
Brussels II ter Regulation – definition
As defined in the Brussels II ter Regulation, „unlawful abduction or retention” means the abduction or retention of a child where:
- such abduction or retention violates custody obtained by judgment, by law, or by a legally binding agreement under the law of the Member State in which the child had habitual residence immediately prior to the abduction or retention; and
- at the time of the child’s abduction or retention, the custody of the child was, jointly or independently, actually exercised or would have been exercised if the abduction or retention had not taken place.
It follows that wrongful abduction or retention means that the child had habitual residence in the Member State of origin immediately prior to the abduction or retention and that it is the result of a violation of rights of custody granted under the law of that Member State. The Brussels II ter Regulation does not define the concept of habitual residence and reference must therefore be made to national legislation. In its December 22, 2010 Mercredi judgment (C-497/10 PPU, para. 46), the Court ruled that the meaning and scope of the concept of „habitual residence” must be determined in accordance with the principle of the child’s welfare, in particular according to the criterion of closeness. This concept corresponds to the place where the child shows a certain integration into the social and family environment. It is up to the national court to determine this place based on all the relevant facts of the case.
A new solution introduced in the Brussels II ter regulation is for the Court to ask the parties at each stage of the proceedings whether they are willing to mediate or use alternative dispute resolution methods, unless using these methods would unduly delay the proceedings.
International Child Abduction – promptness of court proceedings
The regulation also points to the promptness of court proceedings. Following the wording of the 1980 Hague Convention, it indicates that in the case of child abduction or retention, the court should order the immediate return of the child. To this end, the proceedings at first instance should end within 6 weeks of the date of the petition for the child’s return. In addition, the Regulation emphasizes that proceedings on the petition for the return of the child should be conducted using the fastest procedures available in the national order, aiming at prevention of negative consequences associated with separation from the parent. Practice shows that a child who is abducted and isolated from one parent even if he or she does not see him or her even after 6 months may change his or her attitude towards him or her. For 6 months, the parent who abducts the child is able to psychologically change the child’s attitude towards the other parent. Throughout the abduction period the child is being manipulated so the speed of the procedure is very important and is meant to counteract the weakening of the bond between the child and one or both parents, as it can lead to difficulties in re-establishing them.
Execution within 6 weeks
The Brussels II ter Regulation indicates that if a judgment ordering the return of a child is issued, it should be executed, but if it is not executed, the entitled party shall initiate proceedings for the execution of the judgment and it should be executed within 6 weeks from the date of its initiation. If it is not executed within this period, then the entitled party or the central authority has the right to request that the authority competent for execution provide justification for the delay. This provision was introduced to discipline the executing authority when there are problems in the execution of the judgment.
Thus, the Brussels II Ter Regulation indicates that proceedings at first and second instance plus enforcement proceedings should end within 12 weeks. When recognizing a case, the Courts should analyze the requests for evidence submitted by the parties, including in particular requests for court expert opinions, so that the proceedings are not prolonged unnecessarily. Throughout the Regulation, the urgency of the actions taken by the Courts is emphasized.
International Child Abduction – part II
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Our law firm handles cases under the Hague Convention, so in case of any inquiries regarding the topic of child abduction please contact us directly or call us at: +48 882 120 775 to schedule an appointment or online advice. Our team of lawyers will be happy to answer all your questions.
Author: Justyna Cudna-Wilk