Trying to combat a growing problem of parental child abduction, EU lawmakers adopted new rules to better protect children and bring quicker resolutions to child custody fights. What are in Europe’s new international child custody laws?
The EU’s recent actions are a retooling of the Brussels IIa regulation, a cornerstone of EU judicial cooperation in cross-border matters involving marriage, divorce, separation, annulment and child custody.
A rise in international families – currently estimated at 16 million – and subsequent cross-border family disputes – 140,000 divorces and 1,800 children abducted by a parent annually – led the European Commission to propose amending the Brussels IIa regulation to make it more efficient.
“When parents decide to separate, children can be caught in the middle, and it gets even more complicated when the parents come from different EU countries. In these difficult situations everybody should focus on what is best for the child,” justice commissioner Vera Jourova said in a statement. “With the new rules, judicial cooperation will be faster and more efficient to make sure the children’s well-being comes first.”
The new rules aim to further enhance cross-border judicial proceedings on the basis of mutual trust between EU countries. By removing the remaining obstacles to the free movement of decisions, simplifying the procedures and enhancing their efficiency, the best interests of the child will be better protected.
It is hoped the new rules will bring legal certainty, reduce costs and, most importantly, limit the length of proceedings in international child abduction cases, for the benefit of both children and their parents
Florida Child Custody
Rules about children can differ around the world. I’ve discussed international child custody laws, especially as they relate to child abduction and The Hague Convention on child abduction. Child custody and timesharing is a matter I have written about specifically.
The Hague Abduction Convention is a multilateral treaty developed by The Hague Conference on Private International Law to provide for the prompt return of a child internationally abducted by a parent from one-member country to another.
There are three essential elements to every Hague Convention case:
- The child must be under the age of 16 years of age;
- The wrongful removal must be a violation of the left behind parent’s “rights of custody;”
- The left behind parent’s rights of custody “were actually being exercised or would have been exercised but for the removal.”
So, if a child under the age of sixteen has been wrongfully removed, the child must be promptly returned to the child’s country of habitual residence, unless certain exceptions apply.
The catch, of course, is that a child must be taken from a signatory country to another signatory country, and that is where understanding The Hague Convention comes in.
Even signatory countries may be bad at abiding by the convention, especially when it means enforcing the return of children to a parent alleged to have been abusive.
The annual State Department report to Congress on observance of The Hague Convention lists Honduras as “non-compliant” and nine other countries (Brazil, Bulgaria, Chile, Ecuador, Germany, Greece, Mexico, Poland and Venezuela) as showing “patterns of non-compliance”.
EU New Rules
The changes concern mainly proceedings related to parental responsibility matters and international child abduction and will have a positive impact on all procedures involving children by:
Settling cross-border child abduction cases faster
The deadlines applying to different stages of the child return procedure will be limited to a maximum period of 6 weeks for the first instance court and 6 weeks for each court of appeal. Also, Central Authorities will process applications for return faster.
Ensuring the child is heard
Children who are capable of forming their own views, will be given the opportunity to express these views in all proceedings concerning them. This will apply to matters of parental responsibility and international child abduction cases. Determining how and by whom the child is heard is a matter left to national law.
Ensuring effective enforcement of decisions in other Member States
With the new rules, the exequatur, an intermediate procedure required to obtain cross-border enforcement, will be abolished for all decisions. Under the new rules, enforcement can be rejected or suspended largely under the same conditions in all Member States, increasing legal certainty for all citizens and in particular the children concerned.
Improving cooperation between Member States’ authorities
Good cooperation between the Central Authorities of different Member States in handling child cases is an indispensable prerequisite for mutual trust. The new rules promote better cooperation between Central Authorities, which are the direct point of contact for parents. Also, child welfare authorities will be better integrated into this cross-border cooperation.
The new rules also clarify the sensitive issue of the placement of a child in another Member State, and set up a clear procedure to obtain consent from the Member State where the child is to be placed.
Setting out clearer rules on the circulation of authentic instruments and agreements
Considering the growing number of Member States which allow out-of-court agreements on legal separation and divorce or on matters of parental responsibility, the new rules will facilitate the circulation of the instruments and agreements.
“I am very glad that following our proposal the Council adopted new rules to ensure that any disputes between parents who disagree after separation can be quickly solved. This is about putting children first.”
The Europa article is here.