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The EU Child Return Procedure: in Search of Efficiency

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The EU Child Return Procedure: in Search of Efficiency 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 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. 1 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. 2 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
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