Bescherming rechten van kinderen onder Brussel II Verordening (en)

From 1 March 2005, judgments on parental responsibility will be recognised throughout the European Union pursuant to a new Council Regulation. The aim is to create a common judicial area in the field of family law to improve the situation of children after the separation of their parents. One of the main objectives is to ensure that a child can maintain contact with both parents after a separation even when they live in different Member States. It seeks also to put an end to the problem of parental child abduction within the European Union.

Background

The Regulation is part of the ongoing work within the EU to create a genuine judicial area based on the principle of mutual recognition of judicial decisions. This goal is set out in the Programme for mutual recognition of judgments. Access rights were identified as a priority for judicial cooperation by the European Council in Tampere in 1999.

The first step towards a mutual recognition of judgments in the family law area was taken with Council Regulation (EC) No 1347/2000 of 29 May 2000 ("the Brussels II Regulation") which entered into force on 1 March 2001. The Brussels II Regulation set out uniform rules on jurisdiction and the recognition and enforcement of divorce judgments and to certain judgments on parental responsibility. Judgments on parental responsibility were recognised only to the extent that they were issued in the context of a divorce proceeding and concerned children common to both spouses. As a result, the Regulation was not applicable in the numerous cases where the parents were unmarried, the judgment on parental responsibility was issued either before or after a divorce proceeding or the child was not common to both spouses.
The scope of the Brussels II Regulation showed itself to be too narrow as far as parental responsibility matters were concerned. For this reason, the Commission proposed in 2002 a draft Regulation that would cover all decisions on parental responsibility. The Regulation was adopted under the Italian Presidency in November 2003.

Relevance

As citizens increasingly move within the European Union, there is a growing number of cases where family members are not of the same nationality and/or do not live in the same Member States. This social reality creates a need to lay down uniform rules to determine the competent court and to facilitate mutual recognition of judgments. If, for example, a French couple living in Belgium want to divorce, the Regulation gives the spouses the choice to file for divorce in either France or Belgium. The divorce decision will be automatically recognised in the other Member State.

Summary of the new Brussels II Regulation

Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility ("the new Brussels II Regulation") will enter into application on 1 March 2005. It will repeal and replace the Brussels II Regulation from that date.

The Regulation applies in all Member States except Denmark. It applies to legal proceedings instituted after 1 March 2005.

The Regulation unifies the legal framework in the field of family law. The provisions on divorce and matters of parental responsibility are brought together in one single text. The rules on divorce are taken over practically unchanged from the Brussels II Regulation.

In order to ensure equality for all children, the scope extends to cover all decisions on parental responsibility. It is irrelevant whether the parents are or were married and whether the child is common to the parties.

The grounds of jurisdiction are shaped in the light of the best interests of the child. Jurisdiction lies, as a general rule, with the Member State of the child's habitual residence. It introduces a possibility, in exceptional cases, to transfer a case to a court of another Member State, if that court is better placed to hear the case. A court can only transfer a case if it has been accepted by at least one of the parties and it is in the best interests of the child.

Based on the principle of mutual trust, a judgment given in one Member State shall be recognised in all other Member States. The grounds for non-recognition are kept to a strict minimum. The State addressed should review neither the jurisdiction of the State origin, nor the findings of fact. For the first time in the field of judicial co-operation in civil law, the European Union does away with the intermediate procedure (so-called "exequatur procedure") for certain types of judgments. Hence, judgments on access rights and judgments ordering the return of a child following an abduction will no longer be treated differently or be subject to additional procedures because they are issued in another Member State. The judge of origin shall simply issue a certificate indicating that certain procedural requirements have been respected, in particular that the child and the parties have been given an opportunity to be heard. The suppression of these procedures will make it easier to exercise visiting rights when the parents live in different Member States and thus ensure that a child can maintain regular contact with both parents. This principle was endorsed by the European Council in Tampere in 1999. It is also in line with the Programme on mutual recognition that foresees the gradual suppression of exequatur for all decisions in civil and commercial matters.

The Regulation seeks to solve the problem of parental child abduction within the European Union. It will complement and reinforce the Hague Convention of 25 October 1980 on the civil aspects of international child abduction, which is in force in all Member States. To create a deterrent effect, the Regulation states that courts of the Member State of the child's habitual residence before the abduction keep jurisdiction also after the abduction and have the final say to decide where the child shall stay. In addition, the Regulation reinforces the obligation to order the immediate return of the child. The courts of the requested State shall always order the return of the child to the Member State of origin if the child can be protected there.

The courts must issue the decision within a time-limit of six weeks and give the child as well as the left-behind parent the opportunity to be heard. If the court decides that the child shall not return, it shall send a copy of the decision to the competent court in the Member State of origin, which has the final say. The judge of origin shall co-operate with the judge who took the decision on non-return. A decision by the court of origin entailing the return of the child is directly recognised and enforceable in the other Member State without any intermediate procedure. This serves to ensure the child's quick return.

Finally, the Regulation creates a system of co-operation between central authorities which will be designated in all Member States. These authorities will support communications between courts, and facilitate agreements between parents e.g. mediation.

Facts and figures

Although there are no exact statistics available on the number of "cross-border" divorces and cases of parental responsibility within the European Union, it is safe to say that a considerable number of citizens are affected. As an example, approximately 15 per cent of the divorces pronounced in Germany each year (approximately 30.000 couples) concern couples of different nationalities.

Statistics on child abduction cases can be found at the web-site of the Hague Conference on Private International law. It is understood that further works to collect statistics on child abduction are in progress in view of the next Special Commission in 2006. A statistical analysis of the application of the 1980 Hague Convention made in 1999 showed that hundreds of children were victim of abduction within the European Union each year.

Follow-up

The Regulation will continuously monitor the application of the Regulation. In addition, the central authorities designated under the Regulation will meet regularly in the framework of the European Judicial Network in civil and commercial matters to discuss the application of the Regulation.

For more information :

http://europa.eu.int/comm/justice_home/ejn/parental_resp/parental_resp_ec_en.htm