About Brussels II
Council Regulation (EC) No.2201/ 2003 (Brussels II Revised Regulation 2003)
A snapshot guide in the context of international child abduction
Council Regulation (EC) No.2201/2003 (“Brussels II Revised Regulation 2003”) is in force in all member states of the European Union, except Denmark.
If your child has been abducted to an EU state (except Denmark) from another EU state (except Denmark), or if your child has been abducted from an EU state (except Denmark) to another EU state (except Denmark), then the Brussels II Revised Regulation 2003 must be considered in conjunction with the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“Hague Convention 1980”).
Article 11
This is the key article under the Brussels II Revised Regulation 2003 in this context, with particular reference to the following:-
Article 11(2)
This enshrines the right of the child to be heard in proceedings unless the child’s age or degree of maturity deems it inappropriate.
In English jurisprudence, the court has made clear that it has a duty to consider whether or not a child should be heard under article 11(2), even if an article 13(b) objections defence under the Hague Convention 1980 is not being raised: Re F (Abduction: Refusal to Return) [2009] EWCA Civ 416.
The English court generally considers children under six years old to be too young to be heard.
Article (3)
This makes clear the importance of Hague applications being concluded (including any appeals) within 6 weeks from the time that the proceedings are issued, unless the case is ‘exceptional.’ Expediency is key in Hague proceedings.
Article 11(4)
When an article 13(b) harm defence under the Hague Convention 1980 is raised by a Respondent (the abducting parent) in Hague proceedings, the court has to consider whether the allegations raised meet the very high threshold inherent within that defence, and if so, what protective measures are being offered by the Applicant (the left-behind parent) so as to mitigate any harm.
This article makes clear that a non-return order under article 13(b) should not be ordered by the court if it can be established that adequate arrangements (protective measures) have been put in place to secure the child’s protection following a return.
In the English courts, there is a ‘rebuttable assumption’ that an EU state can put in place sufficient protective measures following a return, thus making it very difficult for an article 13(b) harm defence to be succeed.
For recent English jurisprudence on article 13(b) in the context of the Brussels II Revised Regulation 2003 see: Re E (Children) [2011] UKSC 27 and S v C [2011] EWCA Civ 1385
Article 11(6)-(8)
If State B (requested state) has refused to order the return of the child to State A (requesting state) on the basis of any defence under article 13 of the Hague Convention 1980 (the 4 defences being – consent, acquiescence, child’s objections and grave risk of physical or psychological harm / intolerable situation), then the left-behind parent who requested the return of the child can still apply under articles 11(6)-(8) for the return of the child.
The application is made in the courts of State A and the court determines whether or not there should be a return on welfare grounds. This is effectively a ‘second bite of the cherry’ for the left-behind parent.
If a return order is made under articles 11(6)-(8), then the courts of State A should issue an Annex IV certificate under the Brussels II Revised Regulation 2003 so that the order can be recognised and enforced in the courts of State B without the need for a declaration of enforceability and without any possibility of opposing its recognition, so long as the conditions set out article 42(2) of the Brussels II Revised Regulation 2003 have been fulfilled.
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