THEMIS 2017

Semi-final B

International Judicial Cooperation in Civil Matters – European Family Law

The EU Child Return Procedure:

in search of efficiency

Team Greece

Tutor: Prof. Spyridon Tsantinis

Eirini Biniari - Sofia Cheimara - Stefania Angeliki Kapaktsi

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Table of contents

I. INTRODUCTORY REMARKS ........................................................................................ 2

I.A. The Relation between the Brussels IIa Regulation and the 1980 Hague Convention:

Friends or Foes? ......................................................................................................................... 2

a. Similarities make “friends”. ........................................................................................ 2

b. Differences make “foes” ............................................................................................. 3

c. Was there a need for Brussels IIa Regulation on child abduction? The objective of

Article 11 ................................................................................................................................... 4

I.B. Scope of Application........................................................................................................... 5

II. RULES TO ENSURE THE PROMPT RETURN OF THE CHILD .................................... 5

II.A. Nature and Duration of the Child Return Proceedings...................................................... 5

a. Jurisdiction (Art. 10) ................................................................................................... 5

b. Nature of the Proceedings [Art. 11(3)] and the example of Greece ............................ 6

c. Duration– The court shall issue a decision within a six-week deadline [Art. 11(3)] –

“Necessity, Utopia or both?” ..................................................................................................... 6

d. Provisional Measures ............................................................................................................. 7

II.B. The Right to be Heard ....................................................................................................... 8

a. The Hearing of the Child [Art. 11(2)] – “Does anybody hear?” ................................. 8

b. The Hearing of the Parents .......................................................................................... 9

II.C Measures of Protection for the Child ................................................................................ 10

a. Child’s best interests: the (contrasting) approaches of the ECtHR and the CJEU –

“Who is more interested” ......................................................................................................... 10

b. Mandatory and potential return of the child – “To return or not to return?” ............ 12

c. Adequate arrangements to ensure the protection of the child [Art. 11(4)] – “To

return!” 13

III. CONFLICT OF COURTS ON EU CHILD ABDUCTION CASES ................................. 13

a. Proceedings after a non-return order ................................................................................ 13

b. Functioning of the overriding mechanism – “the Court of origin takes it all!” ............... 15

c. A critical approach to the overriding mechanism ......................................................... 16

IV. PROPOSALS FOR MORE EFFICIENCY – “Looking to the future!” ............................ 17

V. CONCLUSION ................................................................................................................... 20

The cover image is from the 2007 US Hague Abduction Convention Compliance Report, available at:

https://travel.state.gov/content/dam/childabduction/child_abduction_Compliance_Report.pdf.

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I. INTRODUCTORY REMARKS

The free movement within the European Union (hereinafter the “EU”) has facilitated

travelling and, consequently, mixed-nationality marriages. As human relationships often do,

so do these break down1 and often the mother seeks to return "home", along with the child2.

The Regulation No 2203/20013 (hereinafter “the Regulation” or “Brussels IIa”) as well as the

Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

(hereinafter “the 1980 Hague Convention”) constitute the valuable “tools” for solving, among

others, the acute problem of parental child abduction. However, is that enough?

I.A. The Relation between the Brussels IIa Regulation and the 1980 Hague

Convention: Friends or Foes?

a. Similarities make “friends”.

To begin with, as a general rule, the Regulation does not affect the core of the 1980

Hague Convention4. When a court of a Member State receives a request for the return of a

child pursuant to the 1980 Hague Convention, it shall apply the rules of the Convention as

complemented by Art. 11(1) to (5) of the Brussels IIa Regulation (Recital 17). Both statutes

have a dual purpose that consists, firstly, in securing the prompt return of the child to the

place of the habitual residence thereof (Art. 1 and 2 of the 1980 Hague Convention, Art.

11(3) of the Brussels IIa Regulation) and, secondly, in ensuring that rights of custody which

exist under the law of one Contracting State will be respected in the other (Art. 1 of the 1980

Hague Convention). The elective affinities between the two texts are underlined by the use of

common terminology, such as the “wrongful removal or retention”. Furthermore, the

definition in Art. 2(11) of the Brussels IIa Regulation is very similar to the one in Art. 3 of

the 1980 Hague Convention and covers a removal or retention of a child in breach of custody

rights under the law of the Member State where the child was habitually resident immediately

before the abduction. Finally, Art. 4 of the 1980 Hague Convention sets the limit of the

1 In fact, the overall number of international divorces has remained stable over the years, at around 100,000 per

year. See European Commission, Impact Assessment - Accompanying the document Proposal for a Council

Regulation on jurisdiction, the recognition and enforcement of decision in matrimonial matters and the matters

of parental responsibility and on international child abduction (recast), COM(2016) 411 final, p. 15, available

at: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52016SC0207&from=EN. 2 P. Ripley, A Defence Of The Established Approach To The Grave Risk Exception In The Hague Child

Abduction Convention, 4 Journal of Private International Law 2008, p. 459. According to the statistics, the

abductor is the mother in 84% of the cases, see P. Beaumont, L. Walker and Jayne Holliday, Conflicts of EU

Courts on Child Abduction: The reality of Article 11 (6) – (8) Brusells IIa proceedings across the EU, p. 5,

available at: https://www.abdn.ac.uk/law/documents/CPIL_Working_Paper_No_2016_1.pdf. 3 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, repealing

Regulation (EC) No 1347/2000, Official Journal L 338, 23/12/2003, p. 1-29. 4 See also the Opinion 1/2013 of the CJEU [GC] paras. 84-90, ECLI:EU:C:2014:2303.

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protective field at the age of sixteen years old5. Since the Brussels IIa Regulation does not

contain any special provision, it is acknowledged that the same age-limit applies6.

b. Differences make “foes”

In this chapter, only the main differences between the two texts are referred to; The

1980 Hague Convention is also to be applied (Art. 4, 5 and 21) when access rights are

affected. Instead, the Brussels IIa Regulation does not include the infringement of access

rights in the notion of “wrongful removal of the child”. This “lacuna” in the Regulation was

intentional, since the decision that grants access rights, if certified, is automatically

recognized and enforceable (Art. 41) in all member states of the EU, but Denmark. Hence,

the violation of access rights is excluded and is not treated as an abduction within the

meaning of the Brussels IIa Regulation (Art. 2, 10, 11, 42). From that point of view, the

scope of the 1980 Hague Convention is wider and it maintains the practical value thereof. In

addition, under the 1980 Hague Convention (Art. 7, 10, 21), the return of the child can be

performed in the following ways: a) voluntarily, b) by compromise or c) by the application of

administrative or judicial proceedings. On the other hand, the Regulation only applies to the

return of the child following a judicial or administrative procedure7. Furthermore, the term

"child's habitual residence" is not defined in the 1980 Hague Convention. The Court Of

Justice of the European Union (hereinafter the “CJEU”) defined "habitual residence", when

applying the 1980 Hague Convention in conjunction with the Regulation, annotating that it

must be given “an autonomous and uniform interpretation throughout the European Union"

and elaborated on the relevant factors8. It is obvious that outside the EU, however, the term

“child’s habitual residence” cannot be defined in a unified manner9. Finally, the Regulation

ensures that, unless the non-abducting custody holder has been given the opportunity to be

heard, the national court may not refuse the return of a child [Art.11(5)]. The 1980 Hague

Convention does not embody any similar provision10.

5 It should be annotated that the age limit is determined, not at the time of the abduction, but at the time of the

request being brought before the national court. 6 Ch. Apalagaki, The Provisions of the Regulation 2201/2003 on the International Child Abduction,

Armenopoulos 2005, p. 1016-1017. See also Recital 12 of 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, p.12, available at: https://ec.europa.eu/transparency/regdoc/rep/1/2016/EN/1-2016-411-EN-F1-1.PDF. 7 Apalagaki, ibid, p. 1017-1018. 8 Judgment of 22 December 2010, Mercredi, C-497/10, ECLI:EU:C:2010:829, paras. 45-57. 9 V. Camboni Miller, The Return of Children to Their Non-Taking Parents after Their Kidnapping by the Taking

Parents: The Legal Remedies Under the 1980 Hague Convention and a Comparison of Its Implementation and

Enforcement in the United States and Italy, 22 Digest National Italian American Bar Association Law Journal

2014, p. 98-99. 10 See European Commission, Practice Guide for the application of the Brussels IIa Regulation, p. 57, available

at: http://ec.europa.eu/justice/civil/files/brussels_ii_practice_guide_en.pdf.

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c. Was there a need for Brussels IIa Regulation on child abduction? The

objective of Article 11

The Brussels IIa Regulation does not abolish, but solely corrects and completes the

1980 Hague Convention, by facilitating the issuance of a return decision11. In order to do so,

the Regulation provides for the conditions under which the international jurisdiction of the

Member States’ courts is established as well as clauses stipulating the immediate

enforceability of a return decision delivered by the court of the Member State of the child’s

habitual residence immediately before the wrongful removal12. In particular, the latter court

has the last word in matters of return [Art. 11(8)]; the decision of the latter courts can, in fact,

overrides any non-return decision that may have been issued by the court of the Member

State whereto the child has been wrongfully moved, limiting the application of Art. 13 of the

1980 Hague Convention13. The Regulation, lastly, specifies the notion of “expeditiousness”

of the court’s action to be taken [Art. 11(3)], providing for an exclusive six-week time limit

for the decision to be issued14.

Besides, under the 1980 Hague Convention regime, the courts aiming to establish

jurisdiction are more likely to exploit the exceptions of Art. 13. Although the summary return

mechanism of the 1980 Hague Convention was preserved for the child abduction cases in

Europe, the Regulation attempts to secure the status of the State of habitual residence15, by

providing in Art. 11 for a core of minimum guarantees that the Member State should apply

when examining an application for return. In addition, the Regulation reinforces the principle

that the court shall order the immediate return of the child by delimitating the exceptions of

Art. 13(1) of the 1980 Hague Convention to a strict minimum16. Specifically, the Regulation

excludes any refusal to return the child pursuant to Art. 13(b) of the 1980 Hague Convention,

if the Member State of the former habitual residence has taken the appropriate measures for

protection after returning there [Art. 11(4)]. It seems that the Regulation goes a step further

by extending the obligation to order the return of the child even in the case that the return

could expose the child to such a risk that article 13(b) of the 1980 Hague Convention refers

11 For example, in Greece, according to the statistics of the Ministry of Justice (unpublished), there is an

increase in child return requests transmitted to other Member States from 14 in 2015 to 19 in 2016. 12 See hereafter III.C. 13 S. Tsantinis, Recent ECJ Judgments in Cases of Children Abduction and Parental Responsibility The ECJ

Judgments “Deticek”, “Povse” and “Purrucker”, 3-4 International Lis Corriere Trimestrale Della Litigation

Internazionale 2010, p. 120. 14 See hereafter II.A.c. 15 P. McEleavy, The New Child Abduction Regime In The European Union: Symbiotic Relationship Or Forced

Partnership?, 1 Journal of Private International Law 2005, p. 8. 16 European Commission, Practice Guide, op. cit., p. 54.

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to17. However, the national court must examine that appropriate protection measures have

been adopted for the child, after its return, on a case by case basis18. In general, it is difficult

for the judge to evaluate the real circumstances for the return of the child in the Member State

of origin. Close cooperation between national courts and competent authorities in both the

requesting and requested States is essential, to ensure the effectiveness of the “adequate

arrangements” and secure the protection of the child after his or her return19.

I.B. Scope of Application

Art. 11 in conjunction with Art. 60 and 62 of the Brussels IIa Regulation apply, with

the exception of Denmark, when a child, who is wrongfully removed or retained in a Member

State, was habitually resident in another Member State immediately before the wrongful

removal or retention,20. By contrast, the 1980 Hague Convention is to be applied instead of

Art. 11 of the Brussels IIa Regulation, when the child is wrongfully removed from one

Member State to a third country or vice versa from a third State to a Member State or when

the child, habitually resident in a third country, is illegally retained in a Member State or vice

versa, the child that habitually resides in a Member State is illegally retained in a third

country21.

II. RULES TO ENSURE THE PROMPT RETURN OF THE CHILD

II.A. Nature and Duration of the Child Return Proceedings

a. Jurisdiction (Art. 10)

To deter the phenomenon of parental child abduction between Member States, Art. 10

of the Brussels IIa Regulation stipulates that the courts of the Member State of the child’s

habitual residence before the wrongful removal or retention (“Member State of origin”) retain

their jurisdiction to decide on the return of the child also thereafter. The courts of the Member

State whereto the child has been wrongfully moved (“the requested Member State”) seize the

jurisdiction only under very strict conditions22. Hence, abducting parents cannot use Art.

17 D. Kranis in P. Arvanitakis and E. Vasilakakis, Regulation (EC) 2201/2003 Interpretation of the Articles, ed.

Sakkoulas, 2016, p. 117. See also European Commission, Practice Guide, op. cit., p. 54-55. 18 See hereafter II.A.c. 19 European Commission, Practice Guide, op. cit., p. 54-55. 20 Judgment of 9 October 2014, C v M, C-376/14 PPU, ECLI:EU:C:2014:2268, paras. 67-69: According to the

CJEU, in circumstances where the removal of a child has taken place in accordance with a court judgment,

which was provisionally enforceable and which was thereafter overturned, the failure to return the child to that

Member State following that latter judgment is wrongful and Art. 11 is applicable, if it is held that the child was

still habitually resident in that Member State immediately before the retention. 21 Kranis, op. cit., p. 118. 22 European Commission, Practice Guide, op. cit., p. 49.

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13(l)(b) of the 1980 Hague Convention as a shield to avoid the return of the child by escaping

the jurisdiction of the child's habitual residence and frustrating the aims of the Convention.

b. Nature of the Proceedings [Art. 11(3)] and the example of Greece

Art. 11 of the Brussels IIa Regulation and 2 and 11(1) of the 1980 Hague Convention

stipulate, respectively, that the courts shall act immediately and use “the most expeditious

procedures available” for the return of the child. By this stipulation, the Regulation aims (or

even better attempts) to ensure a speedy trial of the application for the return of the child in

the framework of the lex fori. As a matter of fact, it will be shortly shown, that this attempt

remains unfruitful23.

The procedure applicable for the return of the child in the Greek judicial system is

that of interim measures24. The competent court is the Single-Member Court of First Instance

of the place where the child actually is after the abduction or that of the domicile or residence

of the abductor25. These judgments are, also, subject to attacks on judicial decisions, namely

an appeal and cassation by the parties26.

c. Duration– The court shall issue a decision within a six-week deadline [Art. 11(3)] –

“Necessity, Utopia or both?”

In the cases of abduction by a parent, recent case-law has established what was

already known to the drafters of the Regulation; timing is one of the most important elements

for the successful operation of the child return procedure. Indeed, the passage of time

residing in a state different than that of origin may cause disruptions to the sentimental,

cultural and even linguistic links with the latter state27. The Brussels IIa Regulation stipulates

that the national courts should apply the most expeditious procedures provided for in each

national legal system so as to issue a decision within six weeks from the lodging of the

application. However, the absence of any provision for sanctions in case the decision is not

issued within the designated time frame allows for the Member States to choose whether

sanctions will be imposed or not28. Hence, it remains unclear whether and to which extent the

national courts or the administrative authorities will seek to comply with foresaid obligation.

Moreover, the same provision allows for an exception to be made in exceptional

23 See hereafter II.B.c.. 24 Art. 686-703 of the Greek Code of Civil Procedure. See Areios Pagos no. 873/2010, Athens Court of Appeal

no. 180/2012. 25 However, unlike the genuine cases of interim measures that offer for a provisional solution, these cases are

considered as non-genuine, in the sense that, despite the process of interim measures being applied, the decision

regarding the dispute on the return or not of the child is final. 26 Kranis, ibid, p. 121. 27 See, as an example, Šneersone and Kampanella v. Italy, no. 14737/09, 12 July 2011. 28 Such as the nullification of the proceedings or the indemnification of the party harmed by the delay.

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circumstances. The practice in European national courts shows that in the majority of the

cases this exception has turned into the rule29. Nevertheless, it is not specified by the Brussels

IIa Regulation itself whether this time frame pertains to the decision of the first degree court

or it contains the issuance of a non-appealable decision. It is not further clarified whether the

decision issued shall be enforceable within the same time frame. Given the absence of such

specifications and the opinion expressed by the European Commission30, there derives that

the decision issued should be enforceable and that the six-weeks period does indeed contain

any possible lodging of an appeal31. Given all the above, the issuance of a final decision

within the given time frame appears to be rather utopian32. In Greece, for example, the

decision of the First Instance court is usually issued within 2 months, while the decision of

the Court of Appeal takes approximately 3 months to be issued33. The task of the competent

judge becomes even more difficult (if considered possible) given the complexity of the child

abduction cross-border cases. This lack of clarity concerning the time frame provided for in

conjunction with the overall duration of the proceedings may result in legal uncertainty as

parents remain unsure of when they can expect the return of the abducted child34.

d. Provisional Measures

Pursuant to Art. 20 of the Brussels IIa Regulation, in urgent cases, the courts of a

Member State shall not be prevented from taking provisional measures, including protective

ones, in respect of persons or assets in that State (as available under national law),

notwithstanding the jurisdiction of another Member State as to the substance of the case. It

should be annotated that, given the absence of a definition within the legislation, the CJEU

has defined, in the context of the Brussels Convention35, the provisional or protective

measures as being measures, which are intended to preserve a factual or legal status so as to

29 On average, only 26% of the applications between Member States were resolved within the given time frame.

See European Commission, Impact Assessment, op. cit., p. 35, footnote 68. 30 European Commission, Practice Guide for the application of the new Brussels II Regulations, June 2005, p.

33-34, available at: http://ec.europa.eu/civiljustice/divorce/parental_resp_ec_vdm_en.pdf. 31 Klentzeris v. Klentzeris (2007) EWCA Civ 533, INCADAT Reference: HC/E/UKe 931. Thorpe LJ held that

“this extended to appeal hearings and as such recommended that applications for permission to appeal should be

made directly to the trial judge and that the normal 21 day period for lodging a notice of appeal (aka: which is

provided for in the respondent’s state of residence) should be restricted”. To the contrary, see D. Schäuble in

Althammer, Brüssel IIa und Rom III, Kommentar, Art. 11, no. 9, p. 92, who states that the six-week period is

renewed after the appeal. 32 In Member States that apply the six-week time frame to the first instance only, or to every court instance

separately, the first instance courts generally deliver their judgment within the given period, while courts of

appeal often take longer, European Commission, Impact Assessment, op. cit., p. 36. 33 Statistics held by the Greek Ministry of Justice (unpublished). 34 Study on the assessment of Regulation (EC) 2201/2003 and the policy options for its amendment; see (Final

Evaluation Report) at http://ec.europa.eu/justice/civil/files/bxl_iia_final_report_evaluation.pdf and (Analytical

Annexes) http://ec.europa.eu/justice/civil/files/bxl_iia_final_report_analtical_annexes.pdf. 35 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial

Matters (Brussels), Official Journal L 299, 31/12/1972, p. 32–42.

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safeguard and secure rights, the recognition of which is sought elsewhere from the court

having jurisdiction as to the substance of the matter36. The purpose of the Article seems

rather clear and is in fact the facilitation for the “left-behind” party to have provisional

measures ordered in the State whereto the abductor has moved37. The wording of the Brussels

IIa Regulation, however, has given rise to doubts on whether the provision excludes the

jurisdiction of the court of the Member State before which the main action has been lodged to

order provisional measures, in case national law of that particular state provides so38. The

CJEU addressed this issue and, by contrasting the said Article with Article 11(1) of the 1996

Convention39, concluded that Article 20 is not in fact a rule of jurisdiction40. The nature of

the provision remained unclear; in a different case, the CJEU evaluates Article 20(1) as an

exception to the system of jurisdiction that has to be interpreted strictly41. Given, though, the

protective scope of the Article for the remaining party, there does not appear any necessity

for the provision to be strictly interpreted. It is in fact the “abductor” who should not be

allowed to utilize Article 20 as means for prolonging the new status that has arisen upon the

abduction, nor as a regime to legitimize the abduction42. In a different context, the CJEU

came across the complex question of whether the provisions of Articles 21 et seq. of the

Brussels IIa Regulation may also apply to enforceable provisional measures. The Court

concluded that these provisions do not apply to provisional measures43.

II.B. The Right to be Heard

a. The Hearing of the Child [Art. 11(2)] – “Does anybody hear?”

In order for the petition for the return of the child to be examined, Art. 11(2) orders

that it should be ensured that the child is given the opportunity to be heard during the

proceedings. As a matter of fact, the paramount importance of the hearing of the child

emanates from a mere review of the Regulation. References thereof are made in the said

Article, but also in Art. 23(b) and Recitals 19 and 33. Moreover, the child’s hearing reappears

in Art. 42, as a prerequisite for the issuance of a certificate. The CJEU has annotated the

significance of the hearing, pointing out, however, that, under the prism of Art. 24 of the

36 Judgment of 26 March 1992, Reichert and Kockler v Dresdner Bank, C-261/90, ECLI:EU:C:1992:149, para.

34. 37 Tsantinis, op. cit., p. 123. 38 For a coherent and detailed review on the issue, see Tsantinis, ibid, p. 123. 39 Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation

in Respect of Parental Responsibility and Measures for the Protection of Children, available at:

https://www.hcch.net/en/instruments/conventions/full-text/?cid=70. 40 Judgment of 15 July 2010, Purrucker, C-256/09, ECLI:EU:C:2010:437, see paras. 61, 87-89. 41 Judgment of 23 December 2009, Detiček, C-403/09 (PPU), ECLI:EU:C:2009:810, para. 38. 42 Detiček, ibid, para. 57. 43 Purrucker, op. cit., para. 100.

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Charter of Fundamental Rights of the European Union, the court has a degree of discretion

subject to the child’s best interests, as they differ on the basis of the age and maturity of the

child. Thus, pursuant to the CJEU, the judge facing a case of abduction should firstly decide

whether the child should be heard; the judge should then choose the proper means so as to

provide to the child the opportunity to express his/her opinion44. Moreover, the CJEU has

clarified that the protective scope of the Regulation does not protect the hearing per se, but

the provision to the child of the opportunity to be heard. Namely, all the necessary procedures

for the free expression of the opinion of the child should be ensured, while the judge should

accept the opinion expressed by the child45. Another issue that has arisen is that, given the

child’s age, the writ of summons for the hearing will be served to his or her legal

representative, namely, in most cases, the abductor, who may choose not to cooperate with

the proceedings in place. Moreover, it should not be disregarded that the child should be

heard in a manner provided for in the various national procedural systems, which may differ

dramatically from one Member State to the other. A factual obstacle is the hearing of a child

actually residing in a different Member State. It is apparent that, notwithstanding the Court’s

decisions and the drafters’ optimism, the right of the child to be given the opportunity to be

heard is not adequately protected.

b. The Hearing of the Parents

The, obvious, right of the person requesting the return (the “left-behind” parent) has

in fact been stipulated by Art. 11(5) of the Brussels IIa Regulation, ordering that the court

cannot refuse the return, if the person requesting it was not given the opportunity to be heard.

Hence, he/she should be summoned pursuant to the lex fori. As the Regulation does not set

the consequences for the violation of this provision, these are to be provided for by the

Member States.

Contrariwise, there is no provision securing the right of the abducting parent to be

heard. The right emanates from Article 6 ECHR. The lack of such a provision along with the

inherent difficulties in the hearing of this party result in a rather small percentage of cases

where the parent has been heard. In several cases, there was no attempt by the court to reach

the abducting parent, while in others, the court demanded that the parent should be examined

in person and not via any other means46. However, in some cases, the opportunity was in fact

given to the parent, but he/she refused due to the lack of legal advice, the belief that the

44 Judgment of 22 December 2010, Aguirre Zarraga, C-491/10 PPU, ECLI:EU:C:2010:828, paras. 60-66. 45 Aguirre Zarraga, ibid, para. 65. 46 TQ13P00079/ZC14P00064 EWHC (Fam) 4 July 2014 (Unreported). For more case law see Beaumont,

Walker, Holliday, op. cit., p. 33-34.

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courts in the state of origin do not retain jurisdiction, or the lack of trust in the justice system

of that state. In these cases, the judges mostly interpret the refusal as a waiver of the right to

be heard, which allows them to proceed with the trial47. This approach may, however, result

to the decision not reflecting the child’s best interests.

II.C Measures of Protection for the Child

a. Child’s best interests: the (contrasting) approaches of the ECtHR and the

CJEU – “Who is more interested”

One of the most widely used principles not only in Europe, but in the majority of the

western world is that of the child’s welfare. The “paramount importance” of the children’s

interests is highlighted in the Preamble of the 1980 Hague Convention, while the concept is

also annotated in Recital 12 and Art. 12(3), 15(1) and (4) and 23 of the Brussels IIa

Regulation. The principle was universally recognized by the United Nations in 198948, while,

in 2001, the European Court of Human Rights (hereinafter the “ECtHR”), declared that “the

consideration of what is in the best interests of the child is in every case of crucial

importance”49. Some jurisdictions, most notably England, have established a list of factors to

be examined so that the judge may be directed, while others prefer for the judge to be

allowed a wide discretion to interpret the concept pursuant to the facts of any given case50.

Given this wide discretion, it only comes natural that there has not yet been a commonly

accepted definition of the notion. The lack of unanimity in the approach towards the principle

is apparent from a review on the case-law of the ECtHR and the CJEU.

In Neulinger51, the ECtHR acknowledged that the national courts should proceed

towards an individual, ad hoc, approach of the notion of the best interests of the child, by

examining in-depth the entire family situation, including a factual, emotional, psychological,

material and medical nature examination. This demand for the judge to conclude a complete

and thorough examination of the situation is difficult to be aligned with the 1980 Hague

Convention demand for a summary return procedure. At the light of this contradiction, the

UK Supreme Court questioned the aforesaid decision annotated the inappropriateness of this

47 The ECtHR has in fact adopted this approach, see Battisti v. France, no. 28796/05, 12 December 2006. 48 United Nations, Convention on the Rights of the Child, Treaty Series, vol. 1577, p. 3, available at:

https://treaties.un.org/doc/Publication/UNTS/Volume%201577/v1577.pdf. 49 See L v Finland, no. 25651/94, 27 April 2000, §118. The same approach was adopted by the ECtHR in Raban

v. Romania, no. 25437/08, 26 October 2010. 50 S. Cochrane, International Relocation of Resident Parents: A Comparative Discussion and Proposal for

Future Direction, 5 Aberdeen Student L. Rev. 2014, p. 65. 51 Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, 6 July 2010, §138. See also Raban v. Romania, op.

cit., §28.

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approach52. As a result of the “dialogue” between the Courts, the ECtHR chose a different

path in the X case53. In this case, while the Chamber followed the Neulinger dictum by

condemning the Latvian courts of not performing an in-depth examination, a small majority

of 9 votes of the Grand Chamber held that the national Court had indeed violated Article 8

ECHR as they failed to perform an effective examination. It further went on to explain that

when an “arguable claim” based on the relevant Articles on the 1980 Hague Convention

against a return is made, the court must not only consider it, but also give a “sufficiently

reasoned opinion”. A refusal to take account of the “arguable claim” and any insufficient

reasoning for the dismissal thereof is contrary to Article 8 of ECHR and to the 1980 Hague

Convention. By doing so, the Court actually annotated that the exceptions of the Hague

Convention should be viewed and interpreted in the light of the best interests of the child.

Moreover, the demand for an effective examination seems to be consistent with the summary

procedures of the Convention; in performing so the judge should only focus to the

circumstances consisting the basis of the claims pleaded before the court. A different case,

concerning the application of Art. 11(7) and (8), Šneersone and Kampanella v. Italy, also

reached the ECtHR, after firstly reaching the European Commission54. The Court found that

the child’s best interests were not taken into account by national courts, and hence Article 8

of ECHR was violated.

On the other hand, in a single case, the factual circumstances whereof could in fact be

presented before the ECtHR, the CJEU chose a complete different approach towards the

notion from the one adopted by the ECtHR. In Aguirre Zarraga, the Court attempted to

interpret the Regulation strictly55, by stating that the principle is sufficiently protected when

the Regulation and the principle of mutual trust are correctly applied56. In more detail, the

CJEU annotated that the courts of any Member State should trust that any court in any other

Member State does also guarantee the protection of the rights, and, especially Art. 24 of the

52 In the Matter of S (a child) UKSC 10; [2012] 2 AC 257, 38, P. Beaumont, K. Trimmings, L. Walker and J.

Holliday, Child Abduction: Recent Jurisprudence Of The European Court Of Human Rights, 1 International and

Comparative Law Quarterly 64 2015, p. 41. 53 X. v. Latvia [GC], no. 27853/09, 26 November 2013. 54 Šneersone and Kampanella v. Italy, op. cit. Infringement proceedings against Italy for procedural failing in

handling the case were brought before the Commission by the Republic of Latvia. The Commission concluded

that Italy had violated neither the Brussels IIa Regulation nor the general principles of EU law, see Beaumont,

Trimmings, Walker and Holliday, Child Abduction: Recent Jurisprudence Of The European Court Of Human

Rights, op. cit., p. 51. 55 In particular Article 42 thereof. 56 Aguirre Zarraga, op. cit., paras. 46, 70, 71. For a coherent view on the case see L. Walker, P. Beaumont,

Shifting The Balance Achieved by the Abduction Convention: The Contrasting Approaches of the European

Court of Human Rights and the European Court of Justice, 2 Journal of Private International Law 7 2011, p.

231 et seq. See also Judgment of 9 September 2015, Bohez, C-4/14, ECLI:EU:C:2015:563, para. 58.

12

Charter, in an equivalent and effective manner. The adoption of an approach so

fundamentally different from the one drafted by the ECtHR, may lead to a further

prolongation of the (already long as seen above) proceedings. It may also cause further

misunderstandings to the parties as per the applicable rules and the scope of the exceptions of

Art. 13 of the Hague Convention. More importantly, it may cause a delimitation of the

application of the refusal procedure, leading to an “automatic return” of the child in the

majority of cases.

b. Mandatory and potential return of the child – “To return or not to return?”

Pursuant to the 1980 Hague Convention, the return of the child is provided as a

cornerstone measure of protection. By virtue of Art. 12, the return renders mandatory, in the

case that less than a year has elapsed between the wrongful removal or retention and the

commencement of the proceedings. In the case, that more than a year has elapsed and that it

has been established that the child has already settled in the new environment, the return

renders potential. Namely, in the latter case, the authority in charge of the petition has a

discretionary latitude to order or not the return. The return of the child is also potential in the

different case provided for in Art. 13 of the Convention, namely if the person or the legal

entity contra to the return proves that the person or entity having the care of the child, was

either not exercising the custody rights at the time of the removal or retention, or had

consented to or acquiesced in the removal. Under these conditions, the moving of the child is

deprived of the unlawful character thereof57. Secondly, the return is deemed potential in the

case there is established by the defendant that there is a grave risk that the return of the child

may expose the latter to a to physical or psychological harm, or place it in an intolerable

situation, while the competent authority may deny the return in the case the child itself does

not wish to return (given it has the age and maturity for the opinion thereof to be taken into

account). According to Greek case-law58, there is a grave risk when the return itself and not

any exceptional coincidences, has the tension to cause the above said results. However, it can

be observed that the invocation of such risks is often ostensible and the acceptance of the

relevant objection may lead to the legitimation of the abduction in the case the petition is

dismissed on these grounds. It goes without saying, though, that the application of the

relevant provision pertains to real risks and does indeed protect the child from exposure. The

relevant choice of the judge must serve the best interests of the child, while also taking into

consideration the recognized by virtue of Art. 24(3) of the Charter, fundamental right of the

57 The Greek courts have been dealing with the issue. See Thessaloniki Court of Appeal no. 1957/1997, Patra

Court of Appeal no. 268/2009. 58 Areios Pagos no. 63/2001. For a case on psychological harm, see Larisa Court of Appeal no. 613/2001.

13

child to maintain personal relations and ordinary communication with both parents, in

principle59. Moreover, the return of the child is potential in the case of Art. 20, pursuant

whereto the return may be denied if this is not allowed by the fundamental principles

regarding the protection of human rights and freedoms of the state whereto the petition is

addressed.

c. Adequate arrangements to ensure the protection of the child [Art. 11(4)] – “To

return!”

Art. 11(4), providing that the adjudicating court cannot refuse the return of the child

by virtue of Art. 13(1)(b) of the 1980 Hague Convention, if there is ascertained that adequate

arrangements for the protection of the child upon the return thereof have been made, has been

seen as a positive introduction to abduction proceedings60. This provision limits the

possibility for refusing the return of the child to a great extent, since the abducting parents, in

most cases, invoke the provision of Art. 13(b) so as to impede the return of the child. Thus,

even in the case there is actually a risk for the child to be exposed to, the adoption of

adequate arrangements ends up to the acceptance of the relevant petition, when the relevant

allegation is proposed as a counter objection to the claim deriving from Art. 13(b). Art. 11(4)

does not distinguish between the two cases covered in Article 13(b). i.e. the grave risk for the

child and the objection of the child itself. However, it should be interpreted in a restrictive

manner so as only to cover the first case and preclude the second, since the adoption of

protective measures requires a relevant risk. On the contrary, the objection of the child itself

to return to the state of his/her previous residence should not be circumvented by adopting

protective measures, which, in any case, cannot be ordered if there is no eminent risk61. It has

been evidenced that, notwithstanding the beneficial results the proper use of the provision

could lead to62, the provision has not been adequately used by national courts.

III. CONFLICT OF COURTS ON EU CHILD ABDUCTION CASES

a. Proceedings after a non-return order

In those exceptional circumstances that the court decides the non-return of the child

pursuant to Art. 13 of the Hague Convention63, the Regulation provides for a special

procedure under Art 11(6) - (7). The court must transmit the non-return judgment along with

59 Judgment of 5 October 2010, MCB, C-400/10 PPU, ECLI:EU:C:2010:582, para. 60. 60 Beaumont, Walker, Holliday, Conflicts of EU Courts on Child Abduction: […], op. cit., p. 10. 61 Kranis, op. cit., p. 128-129. 62 Beaumont, Walker, Holliday, Conflicts of EU Courts on Child Abduction: […], op. cit., p. 10. 63 See however Schäuble, op. cit., Art. 11, no. 15, p. 94, who suggests that the relevant provisions may be

applied by analogy to all cases of non-return judgments.

14

all relevant documents, in particular a transcript of the hearings, to the court that is competent

to decide on the substance of the case. According to the CJEU, this obligation of the court

exists even if the non-return judgment is later overturned on an appeal, in so far as the return

of the child has not actually taken place64. Pursuant to Art. 11(6), there is a one-month time

limit for this transmission, which may be conducted either directly or through the Central

Authorities. If a court has already issued a judgment concerning the custody rights, the

documents shall be transmitted to that court. If such a judgment has not been issued yet, the

information shall be sent to the competent court according to its procedural laws, usually, the

court of habitual residence of the child65. Central Authorities as well as the European Judicial

Atlas in Civil Matters66 may be of help in finding the competent court to receive the

information. A practical aspect is that of the translation of the documents within the one-

month time limit. If the judge comprehends the language of the case, a translation should not

be necessary at all, or, if necessary according to national procedural laws, it is recommended

that informal translations or translations of the most important documents are provided by the

court that issued the non-return decision. If it is impossible to carry out the translation within

the time limit, then the court of origin should translate any documents needed67.

After receiving the documents, the court of origin shall notify the parties about the

non-return judgment and invite them to make their submissions on the question of the

custody of the child. Unless at least one of the parties submits their comments within a three-

month time limit, the court of origin shall close the case68 and the courts that issued the non-

return decision become competent pursuant to Art. 10(b)(iii). The same applies in case the

court of origin delivers a judgment that does not entail the return of the child pursuant to Art.

10 (b)(iv).

64 Judgment of 11 July 2008, Rinau, C-195/08 PPU, ECLI:EU:C:2008:406, paras. 59-60, 69, 89. 65 Judgment of 9 January 2015, Bradbrooke, C-498/14 PPU, ECLI:EU:C:2015:3, paras. 51-54; According to the

CJEU, a Member State is not precluded from allocating to a specialized court the jurisdiction to examine

questions of return or custody of the child in the context of the procedure set out in Art. 11 (7)-(8), even where

proceedings on the substance of parental responsibility have already been brought, separately, before a court or

tribunal. See also Advocate General (Point of View 60) “it seems to me that Article 11 of the Brussels II bis

Regulation constitutes rather a legal rule of a technical nature than a rule which is intended to determine the

court which has jurisdiction […]. The principal aim of Article 11(7), in my opinion, is to determine the detailed

arrangements for the notification of information on the non-return order, in order to enable the parties to take a

position, with full knowledge of the relevant facts, before the court which has jurisdiction under the law of the

Member State where the child was habitually resident, with the objective of avoiding the risk of a judicial

lacuna following a non-return order, the content of which must be capable of being re-examined”. 66 Available at: http://ec.europa.eu/justice_home/judicialatlascivil/html/rc_jmm_information_en.htm. 67 European Commission, Practice Guide for the Application of the new Brussels II Regulation, op. cit., p. 37. 68 Τhe case may close even without issuing a formal judgment, see Schäuble, op. cit., Art. 11, no. 22, p. 95-96,

and on the relevant Greek judicial practice see Kranis, op. cit., p. 134.

15

b. Functioning of the overriding mechanism – “the Court of origin takes it all!”

On the other hand, if the court of origin delivers a judgment that entails the return of

the child, the latter decision “overrides” the previous non-return judgment pursuant to Art. 13

of the Hague Convention from the court in the requested state. This procedure under Art.

11(8), which does not appear in the Hague regime, is known as the overriding mechanism

and constitutes a challenge for “the principle of mutual trust” between the court of origin and

the court that issued the non-return judgment. The overriding mechanism aims to have a

deterrent effect on the potential abducting parent, as it prioritizes the judgment of the court of

origin69. According to the CJEU, the return procedure under Art. 11(8) enjoys procedural

autonomy70 and does not require a prior or simultaneous judgment on the custody rights71.

More importantly, the Regulation is the first EU instrument to have abolished

exequatur in civil matters in respect of, inter alia, certified return orders in child abduction

cases. Specifically, decisions delivered pursuant to Art. 11(8) are automatically enforceable

under the condition that the court of origin also delivers a certificate by virtue of Art. 40 and

42. As a matter of fact, the court of origin may declare the judgment enforceable, if

considered necessary, even before it is enforceable according to national law, for example

before the time for appeal has elapsed72. This provision aims to prevent appeals filed with the

sole purpose of delaying the enforcement proceedings. The procedural requirements to issue

the certificate are the following: (a) the parties must be given the opportunity to be heard, (b)

the child must be given the opportunity to be heard, unless considered inappropriate based on

age and maturity thereof, and (c) the court shall take into account the reasons for and

evidence underlying the non-return decision from the requested state. It is clear that, in order

to comply with the prerequisites of Art. 42, cooperation between the judicial authorities is

essential. Effective collaboration may require even direct contact by telephone or email, for

the judge in the state of origin to be able to properly examine the reasons for the non-return

decision. Secondly, it is a challenge for the judge to hear the child as well as the abducting

parent, who will probably be unwilling or afraid to travel to the state of origin. One

possibility is to use videoconference or teleconference facilities based on Regulation (EC) No

1206/2001 (the “Evidence Regulation”), where available73.

69 See European Commission, Impact Assessment, op. cit., p. 37. 70 Rinau, op. cit., para. 64. Contrary to the provision for expeditious procedures under Art. 11(3), no timeframe

is set for the decision ordering the return of the child under Art. 11(8). Nonetheless, it is recommended that the

decision shall be delivered as soon as possible; see European Commission, Practice Guide, op. cit., p. 58. 71 Judgment of 1 July 2010, Povse, C-211/10 PPU, ECLI:EU:C:2010:400, para. 67. 72 See European Commission, Practice Guide, op. cit., p. 64. 73 Although the 90-day time limit of Art. 10(1) in the Evidence Regulation may cause considerable delay.

16

If the above conditions are met, the consequence of the provisions of Art. 11(8) and

42 of the Regulation is two-fold: firstly, it is no longer necessary to apply for an exequatur

and, secondly, it is not possible for any party to oppose the recognition of the judgment74. In

fact, the CJEU has clarified that any challenge against a judgment under Art. 11(8)75 or

application to suspend enforcement may be lodged only before the courts of origin, according

to their national law76. The requested Member State, or any other Member State77, cannot

oppose the enforcement of the judgment, not even on the ground that the court of origin may

have infringed Art. 42, interpreted in accordance with Art. 24 of the Charter of Fundamental

Rights (the rights of the child)78 or that, due to a subsequent change of circumstances, the

enforcement might be seriously detrimental to the best interests of the child79, since that

assessment falls exclusively within the jurisdiction of the courts of the Member State of

origin.

c. A critical approach to the overriding mechanism

The overriding mechanism presents some significant disadvantages concerning time,

costs and actual enforcement. Rarely does the abducting parent cooperate in Art. 11(8)

proceedings or comply with the judgment on the return of the child. Ongoing proceedings

under Art. 11(8) are likely to increase conflicts between the custody right holders and to

cause instability and uncertainty to the child. It is also possible that parallel custody and

return proceedings will take place before the courts of origin as well as the courts of the

requested Member State, which may result in contradictory decisions80. In addition, national

courts may use the overriding mechanism as a way to review the previous non-return

decision in the requested Member State, causing distrust among the EU Member States.

Furthermore, judgments under Art. 11(8) are often delivered while courts have practical

difficulty in hearing the child81. Most importantly, despite the abolition of exequatur,

74 See Aguirre Zarraga, op. cit., para. 46. 75 Pursuant to Art. 43, there is no appeal right against the issuing of the certificate. In case of an error, it is only

possible to make a request for rectification of the certificate in the court of origin, based on its national law. 76 See Povse, op. cit., para. 74 and Aguirre Zarraga, op. cit., paras. 51, 60, 69, 71. 77 See European Commission, Practice Guide, op. cit., p. 65. It must be emphasized that the decision of the

court of origin is automatically enforceable in all the Member States and not only in the requested Member

State. 78 See Aguirre Zarraga, op. cit., paras. 74-75. 79 See Povse, op. cit., paras. 80-83. 80 In Povse, the CJEU stated that a judgment delivered subsequently by a court in the Member State of

enforcement that awards provisional custody rights cannot preclude enforcement of a certified judgment

delivered previously by the court in the Member State of origin under Art. 11(8), ibid, para. 79. 81 In fact, only 20% of the children are heard in the court of origin during Art. 11(8) proceedings see P.

Beaumont, L. Walker and Jayne Holliday, Parental Responsibility and International Child Abduction in the

proposed recast of Brussels IIa Regulation and the effect of Brexit on future child abduction proceedings, p. 5,

available at: http://www.abdn.ac.uk/law/documents/CPIL_Working_Paper_No_2016_6_revised.pdf.

17

statistics show that 75% of Art. 11(8) judgments were not actually enforced82, indicating that

this procedure is largely ineffective. Indeed, pursuant to Art. 47(1), enforcement proceedings

are governed by national law (lex loci) and in some countries, such as Greece83, only indirect

means of enforcement are available (monetary penalty or even detention of the abductor)

instead of direct ones (actual return of the child). As a result, Member States often fail to take

adequate and effective steps to secure the actual return of the child.

IV. PROPOSALS FOR MORE EFFICIENCY – “Looking to the future!”

On Thursday 30th of June, 2016 the Proposal for the recast of Brussels IIa Regulation

was published (COM, 2016)84. Based on this Proposal, as well as the aforementioned

practical problems on EU child abduction cases, the following recommendations may be

further considered:

Concentration of jurisdiction: Inefficiency of national procedures is often attributed

to the lack of specialization of the judge dealing with child abduction cases85. Therefore,

concentration of jurisdiction is strongly recommended so as child abduction cases are

handled by expert judges, who may be also nominated as liaison judges among the EU

Member States86. Specialization may also contribute to the successful dealing of some cases

through mediation. In addition, ongoing training should be provided for family judges in

various forms: a) attending seminars and conferences, and especially multi-national

conferences; b) studying handbooks and documents; c) getting acquainted with Hague

cases87; d) working within judicial groups; and e) building informal and formal networks of

judges.

Expeditious proceedings and mediation: As mentioned above88, the six-week

period under Art. 11(3) was interpreted as having the meaning that decisions ordering the

return of the child shall be enforceable within this time limit. However, this limitation is

widely considered as non-realistic. Furthermore, as far as case management is concerned,

prioritizing child abduction cases is not always possible, as the latter are not the only urgent

ones, even in specialized family courts. Hence, it is considered positive that in the Proposal

there is provided a total maximum period of 18 weeks for all possible stages, which, even if it

82 Ibid, p. 8. 83 Art. 950 of the Greek Code of Civil Procedure. 84 See op. cit, hereinafter “the Proposal”. 85 See the Best Practice Guide concluded by the Article 11 Working Group of the European Judicial Network, p.

12 et seq, available at: http://ec.europa.eu/justice/civil/files/mediation_en.pdf. 86 Recital 26, Art. 22 of the Proposal. 87 See in particular INDACAT, at http://www.incadat.com/index.cfm?act=search.detailed&sl=2&lng=1. 88 See above II.A.c.

18

seems a step back, is nonetheless more realistic89. In addition, only one appeal may be lodged

and the judge should have the authority to decide whether the decision will be provisionally

enforceable or not90. Achieving amicable solutions through mediation and other appropriate

means, should be promoted91. However, since the parties may exploit mediation to prolong

the time the abducted child remains in the requested Member State92, it is vital to set a strict

time limit to reach a final settlement and, preferably, include it in the 18 week-period93.

Provisional, including protective, measures with cross-border effect: As

mentioned above, under the current Regulation, provisional measures are ordered according

to national law94, while there is no special enforcement mechanism95. Hence, it is vital to

provide for provisional measures under EU law, a problem that is successfully addressed in

the Proposal96. Firstly, the proposed Art. 12 awards the jurisdiction to the courts in the state

where the child is present in order to take protective or other provisional measures. Given

that this provision is in the jurisdiction chapter, the aforementioned measures will be

recognized and enforced in all other Member States, including the ones having jurisdiction

under the Regulation, until a competent court of such a Member State has taken the measures

it considers appropriate. Therefore, Member States should make provision for adequate

measures ensuring the prompt return of the child; for example, in a case of domestic violence,

they may provide that contact with the left-behind parent will be supervised by a relative or a

public authority, while in case the abduction constitutes a criminal offence, they should

ensure that the abducting parent will not risk criminal sanctions by participating in the

proceeding regarding the return97. In addition to the above provisions, it is recommended that

protective measures be listed in an indicative manner, as an Annex to the Regulation, which

might be used as a useful guide by the national judge.

89 Recital 27, Art. 23 (1) and 63 (1) g of the Proposal. See also p.13, footnote 30 of the Proposal, which states

that, nowadays, average proceedings take up to 165 days. 90 Art. 25(4) of the Proposal. 91 Recital 28 and Art. 23 (2) of the Proposal. 92 See also in relation to the violation of Art. 8 of the ECHR, Raw and Other v. France, no. 10131/11, 7 June

2013, §§ 93-95. 93 See also the Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of

International Child Abduction, Mediation, available at http://ec.europa.eu/justice/civil/files/mediation_en.pdf. 94 See above II.A.d in relation to the problems of interpretation of Art. 20 of the Regulation. 95 See A. Dutta and A. Schulz, First Cornerstones of the EU Rules on Cross-Border Child Cases: The

Jurisprudence of the Court of Justice of the European Union on the Brussels IIa Regulation from C to Health

Service Executive, 1 Journal of Private International Law 10 2014, p. 14-17. It should be noted that protection

measures falling within the scope of Regulation No 2201/2003 are exempted from the Regulation No 606/2013

on mutual recognition of protection in civil matters. 96 Recitals 17, 29 as well as Art. 25(1)(b) in accordance with Art. 12 of the Proposal. The certificate should also

contain details of such measures, instead of a YES/NO answer, as it is currently the case. 97 See to that effect European Commission, Practice Guide, op. cit., p. 61.

19

Hearing the child and the parties concerned: While time is of crucial importance in

an abduction case, it will always come second after the protection of the child’s best interests.

As mentioned above, hearing of the child is mandatory, which is a positive development in

comparison to the 1980 Hague Convention98. Although Member States should be able to

provide for alternative options including videoconference and teleconference under Art. 10(4)

of the Evidence Regulation, however, there is lack of time and resources. Hearing the child is

often difficult also due to the lack of cooperation from the abducting parent. Another factor is

that if the court makes an endless effort to hear the child, it risks delaying the proceedings.

On the other hand, if the court does not exhaust any means available, it risks fair trial

proceedings. Therefore, it is essential to take considerable steps concerning the hearing of the

child: to minimize bureaucracy and optimize the use of technology, to train judges on child

psychology issues, including attempts made by parents to influence them, as well as to create

a suitable environment for the child to communicate with the judge99.

At the same time, Member States should increase facilities for both parents, including

the abducting parent, to be heard; a right that positively influences the parties’ willingness to

participate in and comply with judicial proceedings. A special provision regarding the

abducting parent may be added to the Proposal. In addition, in order to ensure cooperation of

the parents, especially the abductor, legal aid is of crucial importance. The traditional means

test or means-and-merits test is not always suitable for child abduction cases and, for that

reason, it is suggested that free legal aid should be provided in those cases, independently of

the substance of the case, covering all legal costs, including enforcement fees100.

The overriding mechanism: Given the aforementioned practical problems of the

overriding mechanism101, it is recommended that Art. 11(8) procedure should be reformed102,

so as to include minimum standards, when issuing the Art. 42 certificate, that guarantee the

actual fulfillment of its requirements, instead of a simple affirmation thereof. In fact,

important changes have been made in the Proposal103. Firstly, the certificate should only be

98 See above II.B.a. 99 According to the proposed wording of Art. 20, “the authorities of the Member States shall ensure that a child

who is capable of forming his or her own views is given the genuine and effective opportunity to express those

views freely during the proceedings. The authority shall give due weight to the child's views in accordance with

his or her age and maturity and document its considerations in the decision” (emphasis added). 100 See to that effect Art. 46 of the Maintenance Regulation no. 4/2009. On the other hand, Art. 50 of the

Regulation as well as Art. 58 of the Proposal are based on national law provisions in the Member State of

origin. 101 See above III.c. 102 The option to abolish the overriding mechanism was rejected by the European Commission, Impact

Assessment, op. cit., p. 41 and 45 as Option 4. If considered, this option should have been approved

unanimously by the Council based on Art. 81(3) TFEU. 103 See Art. 26(4) in conjunction with Art. 53 thereof, concerning the certificate.

20

issued where there is a residence or custody judgment in the state of origin104. Secondly, a

child’s best interests assessment must be conducted, a provision which is consistent with the

ECtHR case law105. Thirdly, the enforcement of a return decision may be refused, by virtue

of a change of circumstances106. In particular, enforcement may be refused if manifestly

contrary to the public policy in the Member State addressed107. The proposal goes even

further specifying that public policy grounds are restricted to the best interests of the child.

This provision constitutes a radical modification in the overriding mechanism that partially

reverses both the Povse and Aguirre Zarraga cases, regarding the review of the certificate on

fundamental rights grounds as well as change of circumstances pertaining to the best interests

of the child108. Therefore, if adopted, this provision requires a fair balance of the competing

interests at stake – those of the child, of both parents, and of public order, bearing in mind,

however, that the child’s best interests must be the primary consideration109.

V. CONCLUSION

It is true that the Brusells IIa Regulation prioritizes the principle that the abducted

child shall return to the state of origin, if adequate measures have been taken. To that end,

apart from a strict interpretation of the exceptions under Art. 13(b) of the Hague Convention,

national judges are expected to proceed to a wider application of the Art. 11(4) mechanism

concerning protective measures to secure the prompt return of the child. The more the EU

judges trust each other on the actual application of protective measures, the less non-return

orders will be delivered from the requested state and the less overriding mechanism

proceedings will be used in the state of origin. Since in the Brussels IIbis regime the future of

the child may be indeed decided in a different jurisdiction than the state where the abducted

child lives, co-operation of judges is of vital importance. The main concern should always be

to protect the child’s best interests instead of keeping the child in their jurisdiction.

Therefore, the EU child return regime will only become effective if, along with any proposals

for the amendment of the legal regime, an efficient EU judicial co-operation system is

established, which will inspire national judges with the idea of (actual) mutual trust.

104 This provision actually aims to address the issues arising from the Povse case, see above III.b. 105See Šneersone and Kampanella v. Italy, op. cit., concerning Art. 11(8) proceedings. See also Recital 17 of the

Proposal. 106 See Art 40 (2) of the Proposal. 107 Cf. Art. 58 of the Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of

judgments in civil and commercial matter. 108 See above III.b. 109 See Šneersone and Kampanella v. Italy, op. cit., §85 (iv).