Written by Hubert Dalli,
This note seeks to provide an initial analysis of the strengths and weaknesses of the European Commission’s Impact Assessment (IA) accompanying the above Commission proposal (the proposal), submitted on 30 June 2016 and referred to Parliament’s Committee on Legal Affairs.
The proposal is a recast of the Brussels IIa Regulation (the Regulation), which is ‘the cornerstone of judicial cooperation in family matters in the European Union’. The Regulation lays down jurisdiction rules in disputes regarding matrimonial matters (divorce, separation and annulment) and parental responsibility, where there is a cross-border element to such disputes, and lays down rules for the mutual recognition and enforcement of judgements between Member States. It also sets out the procedure to deal with cases of intra-EU parental child abduction.
The Commission carried out an evaluation of the Regulation within the framework of its REFIT programme. This evaluation consisted of (i) a report on the application of the Regulation as required by Article 65, (ii) an external evaluation study, (iii) an open public consultation, and (ii) surveys with central authorities and Member States.
The evaluation concluded that while overall the Regulation functions well and has achieved a satisfactory level of efficiency, a number of shortcomings have not allowed it to attain its full potential. Matters regarding parental responsibility are singled out as particularly in need of urgent action. The initiative was included in the Commission’s 2016 work programme.
Read the complete briefing on ‘Judicial rules and cooperation in family matters (recast of Brussels IIa Regulation)‘.
Impact Assessment (SWD (2016)207, SWD (2016)208 (summary)) of a Commission proposal for a Council regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) (COM(2016)411).
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This feedback on Brussels II Recast focusses only on the part relevant to a child’s abduction and its return to the MS of origin. It identifies several shortcomings in the existing Regulation which the Recast failed to address properly. One of them is the definition of the term “wrongful removal” and the mechanism of the child return. The return mechanism was drafted in the late 1970’s and was adopted in the Hague (1980) Convention. During that time they were in place strict border controls, the number of cross border marriages was relatively small and there was very little travelling and crossing of the external borders of state. Thus, the international child abduction was a quasi-invisible phenomenon. Today with a boodles crossing between 26 states, including the 4 EFTA the number of multinational families has soared and the so the number of child abductions. Above all the return mechanism in Brussels II, which is based in the Hague (1980) child abduction convention, has been proving to be largely ineffectual .
Furthermore, in Hague (1996) there is an inconsistency in the term “wrongful removal” and the rights over a child has anyone having parental responsibility. As a bad habit this inconsistency has been reproduced in Brussels II and went unnoticed when drafting the Recast.
This feedback concludes with making some recommendations on how a contemporaneous effective mechanism should be based.
A historical overview
The Brussels II is the EU replica of the Hague (1996) Convention . When dealing with child abduction, The Hague (1996), has adopted the definition given in the Hague (1980) Convention . Hague (1980) considers only the custody rights holder(s) as the person(s) that can decided on a child’s cross border travelling and on a possible re-allocation in another state. The Hague (1996) Convention introduces a new role, that of parental responsibility. The Brussels II reproduces the two roles and gives them a definition. Those having parental responsibility must decide on all important issues of the child and those having custody rights must take care on everyday basis of the child (see article 2).
The Hague (1980) defines as “wrongful” a “removal” of the child from the state he/she resides when occurs without the consent of all those having custody rights. Thus, in case of a sole custody rights holder, no abduction could possibly take place, as he/she is alone to decide alone on the child’s traveling and possible re-allocation, even in a third state non signatory of the Convention. This definition of “wrongful removal” is adopted in Hague (1996) and later in Brussels II.
However, this above definition of “wrongful removal” hides a huge inconsistency with another term, that of “parental responsibility”. The Court in C-215/15, made a in deep analysis of the definition the Brussels II gives to the term “parental responsibility” and reached the conclusion that the travelling of the child outside the MS of its residence it is within the material scope of Brussels II and requires the consent of all those having parental responsibility. Implicitly, it will be in a breach of the Brussels II the travelling of the child without the consent of the later. Hence, the definition of “wrongful removal” (article 2.12 in the Recast and 2.11 in Regulation 2201/2003) must reflect the interpretation to the term “Parental responsibility” given by the Court.
Thus, the revised Regulation (Recast) needs to update the definition of the “wrongful removal”.
Another important point made by the decision C-215/15, is the absence of the child’s views on travelling outside its MS. Only those having parental responsibility can decide and in case of non-consensus only a national court can bypass the objections of the non-consenting parent. Thus, the revised Regulation needs to be updated as far concerns the voice of the abducted child. The child can be heard when it comes to custody rights disputes but not in parental responsibility issues.
The above direct us in a further contradictions relevant to the child return where his/hers views must be heard, while these views are not relevant when deciding to cross the borders of the state of his residence.
A second paradox is with the transfer of jurisdiction (habitual residence) to the new MS. Since the travelling without the consent of all those having parental responsibility infringes the Regulation, how is possible that jurisdiction could change because of this traveling and the following up new residence?
Recommendations
It necessary to design a new return mechanism, which considers the current facts like the borderless travelling in the Schengen zone, the increased number of cross border families but also the huge rise in international child abduction. This mechanism should also take into account the recent ruling of the Court in case 215/15, and define as wrongful the movement of the child which lacks the consent of all those having parental responsibility over him/her. This mechanism should not rely exclusively on civil proceedings and courts decisions but use existing law such as the SIS II, police cooperation. Since any child abduction is a serious infringement of the Brussels II and of the Union’s Laws in general, cannot be legalized at a later date with reverse decision of civil courts. Simply the legalization of child abductions other than jeopardizing the legal certainty and the Rule of Law, encourages future child abductions. The new return mechanism should be activated automatically and should lead to the prompt return of the child. Should not relay on the civil proceedings, which so far have been proved to be largely ineffective, or even worst to inspire the child abduction.
There is also a need to define the term “retention” this is because the child may have been traveling with the consent of all those having parental responsibility but then it is retained in the hosting MS.
Finally, Member States must be asked to make provisions in their criminal laws to penalize the cross border child abduction. Many member did already (e.g. Germany, UK, Cyprus) but others either they did not or the criminal system has a weakness in handling the child abduction affectively. A possible solution to this will be to extend the responsibilities of the European Prosecutor, to deal with child abductions when national systems failed to deal effectively.