The EU Child Return Procedure: in search of efficiency

Transcription

1 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

2 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 b. Differences make foes... 3 c. Was there a need for Brussels IIa Regulation on child abduction? The objective of Article 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 a. Child s best interests: the (contrasting) approaches of the ECtHR and the CJEU Who is more interested b. Mandatory and potential return of the child To return or not to return? 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 a. Proceedings after a non-return order b. Functioning of the overriding mechanism the Court of origin takes it all! c. A critical approach to the overriding mechanism IV. PROPOSALS FOR MORE EFFICIENCY Looking to the future! V. CONCLUSION The cover image is from the 2007 US Hague Abduction Convention Compliance Report, available at: 1

3 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 down 1 and often the mother seeks to return "home", along with the child 2. The Regulation No 2203/ (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 Convention 4. 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: 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 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: 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 See also the Opinion 1/2013 of the CJEU [GC] paras , ECLI:EU:C:2014:

4 protective field at the age of sixteen years old 5. Since the Brussels IIa Regulation does not contain any special provision, it is acknowledged that the same age-limit applies 6. 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 procedure 7. 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 factors 8. It is obvious that outside the EU, however, the term child s habitual residence cannot be defined in a unified manner 9. 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 provision 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 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: 7 Apalagaki, ibid, p Judgment of 22 December 2010, Mercredi, C-497/10, ECLI:EU:C:2010:829, paras 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 See European Commission, Practice Guide for the application of the Brussels IIa Regulation, p. 57, available at: 3

5 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 decision 11. 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 removal 12. 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 Convention 13. 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 issued 14. 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 residence 15, 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 minimum 16. 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 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 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 European Commission, Practice Guide, op. cit., p

6 to 17. However, the national court must examine that appropriate protection measures have been adopted for the child, after its return, on a case by case basis 18. 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 return 19. 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 country 21. 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 conditions 22. 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 See also European Commission, Practice Guide, op. cit., p See hereafter II.A.c. 19 European Commission, Practice Guide, op. cit., p Judgment of 9 October 2014, C v M, C-376/14 PPU, ECLI:EU:C:2014:2268, paras : 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 European Commission, Practice Guide, op. cit., p

7 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 unfruitful 23. The procedure applicable for the return of the child in the Greek judicial system is that of interim measures 24. 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 abductor 25. These judgments are, also, subject to attacks on judicial decisions, namely an appeal and cassation by the parties 26. 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 state 27. 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 not 28. 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 of the Greek Code of Civil Procedure. See Areios Pagos no. 873/2010, Athens Court of Appeal no. 180/ 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 See, as an example, Šneersone and Kampanella v. Italy, no /09, 12 July Such as the nullification of the proceedings or the indemnification of the party harmed by the delay. 6

8 circumstances. The practice in European national courts shows that in the majority of the cases this exception has turned into the rule 29. 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 Commission 30, there derives that the decision issued should be enforceable and that the six-weeks period does indeed contain any possible lodging of an appeal 31. Given all the above, the issuance of a final decision within the given time frame appears to be rather utopian 32. 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 issued 33. 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 child 34. 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 Convention 35, 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 European Commission, Practice Guide for the application of the new Brussels II Regulations, June 2005, p , available at: 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 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 and (Analytical Annexes) Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Brussels), Official Journal L 299, 31/12/1972, p

9 safeguard and secure rights, the recognition of which is sought elsewhere from the court having jurisdiction as to the substance of the matter 36. 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 moved 37. 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 so 38. The CJEU addressed this issue and, by contrasting the said Article with Article 11(1) of the 1996 Convention 39, concluded that Article 20 is not in fact a rule of jurisdiction 40. 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 strictly 41. 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 abduction 42. 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 measures 43. 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 Tsantinis, op. cit., p For a coherent and detailed review on the issue, see Tsantinis, ibid, p 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: 40 Judgment of 15 July 2010, Purrucker, C-256/09, ECLI:EU:C:2010:437, see paras. 61, Judgment of 23 December 2009, Detiček, C-403/09 (PPU), ECLI:EU:C:2009:810, para Detiček, ibid, para Purrucker, op. cit., para

10 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 opinion 44. 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 child 45. 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 means 46. 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 Aguirre Zarraga, ibid, para TQ13P00079/ZC14P00064 EWHC (Fam) 4 July 2014 (Unreported). For more case law see Beaumont, Walker, Holliday, op. cit., p

11 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 trial 47. 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 , 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 case 50. 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 Neulinger 51, 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 /05, 12 December United Nations, Convention on the Rights of the Child, Treaty Series, vol. 1577, p. 3, available at: 49 See L v Finland, no /94, 27 April 2000, 118. The same approach was adopted by the ECtHR in Raban v. Romania, no /08, 26 October S. Cochrane, International Relocation of Resident Parents: A Comparative Discussion and Proposal for Future Direction, 5 Aberdeen Student L. Rev. 2014, p Neulinger and Shuruk v. Switzerland [GC], no /07, 6 July 2010, 138. See also Raban v. Romania, op. cit.,

12 approach 52. As a result of the dialogue between the Courts, the ECtHR chose a different path in the X case 53. 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 Commission 54. 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 strictly 55, by stating that the principle is sufficiently protected when the Regulation and the principle of mutual trust are correctly applied 56. 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 , p X. v. Latvia [GC], no /09, 26 November 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 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 , p. 231 et seq. See also Judgment of 9 September 2015, Bohez, C-4/14, ECLI:EU:C:2015:563, para

13 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 thereof 57. 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-law 58, 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/ Areios Pagos no. 63/2001. For a case on psychological harm, see Larisa Court of Appeal no. 613/

14 child to maintain personal relations and ordinary communication with both parents, in principle 59. 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 proceedings 60. 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 risk 61. It has been evidenced that, notwithstanding the beneficial results the proper use of the provision could lead to 62, 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 Convention 63, 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 Beaumont, Walker, Holliday, Conflicts of EU Courts on Child Abduction: [ ], op. cit., p Kranis, op. cit., p Beaumont, Walker, Holliday, Conflicts of EU Courts on Child Abduction: [ ], op. cit., p 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. 13

15 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 place 64. 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 child 65. Central Authorities as well as the European Judicial Atlas in Civil Matters 66 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 onemonth 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 needed 67. 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 threemonth time limit, the court of origin shall close the case 68 and the courts that issued the nonreturn 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 , 69, Judgment of 9 January 2015, Bradbrooke, C-498/14 PPU, ECLI:EU:C:2015:3, paras ; 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: 67 European Commission, Practice Guide for the Application of the new Brussels II Regulation, op. cit., p Τhe case may close even without issuing a formal judgment, see Schäuble, op. cit., Art. 11, no. 22, p , and on the relevant Greek judicial practice see Kranis, op. cit., p

16 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 origin 69. According to the CJEU, the return procedure under Art. 11(8) enjoys procedural autonomy 70 and does not require a prior or simultaneous judgment on the custody rights 71. 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 elapsed 72. 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 , 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 available See European Commission, Impact Assessment, op. cit., p 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 Judgment of 1 July 2010, Povse, C-211/10 PPU, ECLI:EU:C:2010:400, para See European Commission, Practice Guide, op. cit., p Although the 90-day time limit of Art. 10(1) in the Evidence Regulation may cause considerable delay. 15

17 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 judgment 74. 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 law 76. The requested Member State, or any other Member State 77, 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 child 79, 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 decisions 80. 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 child 81. Most importantly, despite the abolition of exequatur, 74 See Aguirre Zarraga, op. cit., para 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, 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 See Povse, op. cit., paras 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 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: 16