The author of this post is Francesca Maoli, who is a Researcher at the University of Genova.
The Brussels II ter Regulation on matrimonial matters, matters of parental responsibility and child abduction has become fully applicable on 1 August 2022, meaning that legal proceedings instituted on or after that date, as well as authentic instruments and agreements registered on that date or afterwards, must, in all EU Member States (excluding Denmark), be dealt with in accordance with the Recast Regulation, rather than its predecessor, the Brussels II bis Regulation
Amending Brussels II bis: Improve the Tradition or Face Innovation?
The process that eventually resulted in the adoption of the Recast Brussels II Regulation was launched on the assumption that, overall, the old Brussels II bis Regulation had functioned reasonably well. The 2014 European Commission’s Report on the operation of the latter Regulation stressed that the system was in need of improvement, rather than radical change.
The existing rules have undergone several changes. Some amount to simple refinements and fixings. Others are more meaningful.
The most prominent innovation brought about by the Brussels II ter Regulation is, arguably, the abolition of exequatur for all decisions on parental responsibility. The two-track system envisaged in Brussels II bis, however, remains in place. While the general discipline is now contained in Article 30 and following of the Brussels II ter regulation, ‘override’ return orders and access orders (which the old regime already regarded as ‘privileged’ decisions) keep on benefiting from a special regime. Recognition and enforcement of the latter orders can be refused if they are irreconcilable with a later decision relating to parental responsibility concerning the same child, provided that such a later decision was given (i) in the Member State where recognition is invoked, or (ii) in another Member State or in the non-Member State of the habitual residence of the child, provided that the conditions necessary for its recognition in the Member State are met.
This post does not purport to analyse the new rules in details (a wealth of literature has been produced on the topic: see here for some references). It merely intends to ‘zoom in’ a selection of issues of special practical importance.
The European Commission set itself the object of retaining the status quo as concerns matrimonial matters (this was, actually, the preferred policy according to the 2016 Recast Proposal). The Recast Regulation has nevertheless introduced, also in this area, some significant innovations.
One such innovation is about ‘private divorces’, i.e., divorces that fundamentally occur out of court, based on an agreement between the spouses.
The Brussels II ter Regulation comes with a definition of authentic instruments and agreements, respectively in Article 2(2) and (3). Authentic instruments and agreements in matrimonial matters, if they are given binding legal effects in the Member State of origin, benefit from recognition ‘without any special procedure being required’ (Article 65(1)), unless one of the grounds for refusal of recognition provided by Article 68(1) apply. The same is true of authentic instruments and agreements in matters of parental responsibility (Article 65(2)).
In practice, as clarified in Recital 70, authentic instruments and agreements are to be treated as equivalent to decisions. For this, they must have been formally drawn up or concluded in a Member State that would have had jurisdiction according to the regulation (Article 64). Where this is not the case, they may still circulate across Member States under domestic PIL provisions, or otherwise.
The EU decided to adopt rules on private divorces in light of developments that have arisen, recently, in domestic legislations. When the Brussels II bis Regulation was adopted, the laws of the Member States did not contemplate out-of-court divorces. This is why the Regulation itself failed to include provisions in this regard. This state of affairs has proved problematic. A case is currently pending before the ECJ (C‑646/20, Senatsverwaltung für Inneres und Sport), concerning a dissolution of marriage by joint declaration of the spouses before an Italian civil registrar, whose duty is to assess whether the conditions for an out-of-court divorce are met (Article 12 of the Italian Decree Law No 132/2014 requires, inter alia, that the spouses do not have minor children). While noting that ‘Regulation No 2019/1111 is inapplicable to the present case ratione temporis’, being therefore ‘not possible to draw any conclusions from it for the purposes of interpreting Regulation No 2201/2003’, AG Collins suggested in its Opinion that Articles 2 and 21(1) of the Brussels II bis Regulation be given a broad interpretation, thereby concluding that Italian private divorces should be treated as ‘divorce judgments’ for the purpose of the Brussels II bis Regulation (just like they will do under the Recast Regulation).
The Best Interests of the Child and the Child’s Participation in Parental Responsibility Proceedings
The most significant changes brought about by the Brussels II ter Regulation concern children. One key goal of the Regulation is to enhance the protection of their fundamental rights, as enshrined in the UN Convention on the Rights of the Child (UNCRC), the European Convention on Human Rights (ECHR) and the Charter oof Fundamental Rights of the European Union. Specifically, Article 24 of the Charter creates a link between children’s rights – as protected by universal and regional systems – and the EU legal order.
The Regulation fosters the principle of the best interests of the child, which underlies both the general ground of jurisdiction of the habitual residence of the child (Recital 20) and the rules on the recognition and enforcement of judgments (Recital 55).
While the overall regime of jurisdiction in parental responsibility matters is left substantially unaltered, some significant revision occurred concerning choice of court. Article 10 of the Brussels II ter Regulation provides the formal and substantial condition that an agreement of the parties must fulfil to be effective: those conditions reflect, in general, a concern for the best interests of the child. Among the other requisites, a ‘substantial connection’ must exist between the child and the State of the chosen forum. The new provision expands the cases in which the aforementioned connection is deemed to exists, thus creating more possibilities to exercise party autonomy. In addition, the choice of court results now disconnected from the existence of a proceeding concerning the dissolution of marriage (even if Recital 23 still mentions this circumstance). Finally, ‘persons who become parties to the proceedings after the court was seised may express their agreement after the court was seised’, with the specification that such acceptance of jurisdiction during the proceedings may also be implicit (Article 10(2)).
Child participation is another key issue. Recital 2 states that the 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’, thus recognizing the already existing obligations stemming from international and EU law. The hearing of the child finds a comprehensive discipline in Article 21, which sets out a general obligation to hear the child in all proceedings on parental responsibility, in line with Article 12 UNCRC. The same obligation is stated in Article 26 in the context of child abduction proceedings.
All in all, a decision relating to a child may not be enforced if the child concerned was not given the opportunity to express their views in accordance with Article 21 (unless specific circumstances occur, as specified by Article 39(2)). As to ‘privileged decisions’, namely, overriding orders and orders concerning the rights of access, the violation of Article 21 prevents the issuance of the certificate aimed at facilitating recognition and enforcement (Article 47(3)(b)).
In spite of the foregoing, the opportunity for the child to be heard is still subject to ‘the national law and procedure’. Therefore, it remains unclear to what extent national practices of the Member States will be affected by the new provisions. The importance of the described innovations should, however, not be underestimated. The Regulation has built a solid link between EU proceedings on parental responsibility, on the one hand, and the obligations arising from international texts in this area. Against this background, in order for the child to be given a ‘genuine and effective opportunity to be heard’ (Articles 21 and 26), other aspects should be considered, such as the right of the child to receive adequate information, as suggested, inter alia, by the Guidelines of the Council of Europe on Child-Friendly Justice and the recent work of the Committee of experts on the rights and the best interests of the child in parental separation and in care proceedings (CJ/ENF-ISE).
The focus on the child’s best interests is further witnessed by Article 56 of the Recast Regulation. This provides that the enforcement of a decision may be suspended if it ‘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’. According to Recital 69, this may take the form of a manifest and strong objection of the child voiced after the adoption of the decision (Recital 69).
International Child Abduction
Chapter III of Brussels II ter is about international child abduction. The new instrument confirms the intention to enhance the operation of the 1980 Hague Convention with respect to intra-EU abductions. The overriding mechanism or trumping order, which consents the court of the Member State of habitual residence of the child before the abduction to the return of the child despite a contrary decision issued in the State of refuge, is still operating. However, the recourse to the overriding mechanism is permitted only when the decision of non-return has been issued pursuant Article 13(1)(b) (grave risk of harm) and 13(2) (objection of the child) of the 1980 Hague Convention. Moreover, the court of the child’s habitual residence can issue such a decision only in the context of a proceedings on the merits of parental responsibility, thus reaching a stable assessment on the future of the child. Therefore, the risk of multiple transfers is mitigated.
On other aspects, the discipline is more detailed. Some innovations, inspired to the will to give substantial content to the child’s best interests, are to be welcomed.
The whole Article 24 of the Regulation is dedicated to the celerity of return proceedings: a term of six week after the lodgment of the application is prescribed at each instance, unless ‘exceptional circumstances’ make it impossible to respect this time limit. As concerns appeal proceedings, the term starts to run at the moment in which ‘the required procedural steps have been taken and the court is in a position to examine the appeal’. Similar obligations are placed upon Central Authorities, which shall act expeditiously in processing return applications. The same purpose inspires the possibility to declare return orders provisionally enforceable, notwithstanding any appeal (Article 27(5)). The enforcement proceedings themselves must be fast (Article 28).
The Regulation also provides that the requested court may invite the parties to consider mediation or other ADRs, unless it would result contrary to the best interests of the child, not appropriate in the particular case or would unduly delay the proceedings (Article 25). The explicit mention of this possibility follows the specific attention that the family law scholars and practitioners are devoting to mediation, the potentialities of which are undoubtful. For this reason, the recast could have devoted even more structured discipline to mediation, currently mentioned only in the Chapter dedicated to international child abduction.
The best interests of the child also play a crucial role when it comes to provisional measures aimed at ensuring a contact between the child and the person seeking the return of the child (Article 27(2)). The requested court, while deciding on the return, may also adopt provisional, including protective, measures that are recognized and enforced in all other Member States until the court with jurisdiction as to the substance intervenes (as results from Articles 27(5), 35(2) and 36(1)(c), as well as Recitals 30, 44-46 and 59).
Autonomy, Flexibility and Protection of the Rights of the Child: The Role of Cooperation
Overall, the approach of the EU lawmaker with the Brussels II ter Regulation has resulted in the will to balance the enhancement of party autonomy, the need to grant judicial and non-judicial authority a certain degree of flexibility and the protection of the fundamental rights of the child.
As already mentioned, the latter has inspired some detailed obligations concerning, inter alia, the hearing of the child and a specific attention towards the discipline of international child abduction proceedings. While party autonomy has been empowered also in the context of parental responsibility, through the new discipline on choice of court agreements and implicit acceptance of jurisdiction, those rules have been surrounded by safeguards aimed at protecting the child’s best interests. The same reasoning applies to authentic instruments and agreements circulating according to Article 65(2) of the regulation, which are subject to the grounds for refusal of recognition or enforcement provided by Article 68(2) and (3). Specific reference is made to the possibility for the child to express his or her own views, which may result compressed in the context of out-of-court proceedings or private arrangements.
At the same time, the objective of protect children and their best interests has sustained the introduction of a certain degree of flexibility to national authorities: for instance, the possibility to issue cross-border protective orders pending an international child abduction proceedings, or to suspend the enforcement of a decision when the physical or the psychological wellbeing of the child is at risk.
In this context – and with a view to those objectives – the new provisions of the regulation dedicated to cooperation are of particular interests. Direct cooperation and communication between courts and between Central Authorities are now subject to a more detailed discipline and, therefore, encouraged. Chapter V is entirely dedicated to the role and obligations of Central Authorities, when cooperating between themselves and with courts. Other provisions are to be found in other parts of the regulation. Article 86 concerns direct judicial communication and provides that courts from different Member States should cooperate and communicate directly in all cases that are appropriate (for instance, when a court takes provisional or protective measures, it shall inform the court of another Member State having jurisdiction). The dialogue between judicial authorities can effectively contribute to the good administration of cross-border situations, as well as support swifter procedures, with positive repercussions on children. Of course, it could provide specialized training for judges, who need to be acquainted with this possibility and perhaps acquire new skills.
Those and other provisions contribute to a more fragmented discipline compared to the Brussels II bis regulation. On the other hand, if well applied, they may contribute to a better enhancement of the child’s best interests in the EU judicial space. As always, the application of the tool in practice will show its fruits.