Opinion of the European Economic and Social Committee on the recast of Brussels II bis

Categories: Family Law
Typology: Articles

The opinion of the European Economic and Social Committee on the ‘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 final — 2016/0190 (CNS)), adopted in January 2017, was recently published in the Official Journal (C 125, 21.4.2017, p. 46):

According to this opinion, the EESC welcomes the fact that the Commission proposal aims to take greater account of the best interests of children with regard to decisions about returns. The EESC supports children’s rights and stresses that it is of the utmost importance to uphold these rights in all policy areas relating to children. The best interests of children must be paramount.

The EESC welcomes several significant changes with the aim of making the procedure of returning an abducted child more efficient. In the EESC’s view, this could include the adoption of common minimum standards, including a uniform enforcement procedure. The EESC believes that cooperation between central authorities in cases specifically relating to parental responsibility — set out in Article 55 — is essential and supports the reformulation of these provisions. It welcomes the fact that Member States are obliged to concentrate jurisdiction in a limited number of courts, in line with the structure of each country’s legal system, and the fact that the proposal specifies the time limits for issuing an enforceable return order and shortens return proceedings to 18 weeks in total. The EESC believes that it is reasonable to allow only one appeal in return proceedings and that the court of origin could declare a decision provisionally enforceable even if this possibility does not exist in its national law. Minimum standards for the hearing of a child could help to enhance acceptance of the decision. Examples include the minimum age at which a child can be the subject of a hearing, but not procedural questions that go beyond this, such as who is to question the child. This ought to continue to be a matter for the Member States. Judges involved in hearings of children should receive additional socio-educational training.

The EESC also supports the abolition of exequatur. In the EESC’s view, however, safeguards should be maintained. It should be possible for the court of the Member State of refuge to order urgent protective measures required if the child might be at a grave risk of harm. The placement of the child in a foster family or institutional care in another Member State shall in every case be conditional on the host country’s consent.

Finally, besides a clarification of the scope of application of the Brussels I bis Regulation, the EESC considers that there is a need for regulation in cases where one parent does not come from the European Union and encourages bilateral agreements to be signed, in particular with countries that are not parties to the Hague Convention on Child Abduction.

(Altalex, 29 May 2017. Article by Emmanuel Guinchard)

Share on: Share this article on Facebook Share this article on Linkedin Share this article on Twitter Share this article on GooglePlus