11.1 First, the enforcement
of a parental responsibility decision abroad needs to be further
simplified, speeded up and made less costly. The time frame “envisaged”
by the 1980 Hague Child Abduction Convention to render a decision
in return proceedings is six weeks (see Article 11 of the Convention). Under
the Brussels II
bis Regulation,
the six-week period has been turned into an obligation (see Article 11.3
of the Regulation). Statistics on return proceedings indicate, however,
that courts in many States, even though expeditious proceedings
have been introduced, struggle with meeting this tight timeline
and that despite the stricter Brussels II
bis rules,
return proceedings inside the European Union are not faster (where
average proceedings currently take up to 165 days).
Note It should be noted that this issue
is among the matters discussed for the recast of the Brussels II
bis Regulation.
Note The European Commission’s 2016 proposal
for the recast aims to speed up the real time needed for a return
by replacing the current six-week deadline (seen as unrealistic)
with a new “6+6+6” deadline, by:
Note
11.2
- introducing a new
six-week deadline for the central authorities to receive and process
the application, locate the respondent and the child, promote mediation
(while making sure this does not delay the proceedings), and refer
the applicant to a qualified lawyer or file the case with the court
(depending on the national legal system);
- limiting the possibility to one appeal (with a separate
six-week time limit applying to proceedings before the first instance
court and the appellate court, respectively);
- abolishing the requirement of exequatur (which generates
average delays per case of several months and costs of up to €4
000 for citizens);
- introducing an indicative time limit of six weeks for
the actual enforcement of a decision (with a reporting requirement
to the requesting Central Authority of the EU member State of origin/the applicant
if the time limit is breached).Note
11.3 Second, the geographical scope of application of the key
legal instruments needs to be widened, and States which have bound
themselves to these instruments need to ensure they are fully respected and
implemented in practice. If one of the parents in the separating
binational couple is from a country which is not bound by the legal
instrument
Note or does not fully enforce it, justice
cannot be served.
Note Common
problems include insufficiently expeditious return procedures and/or
enforcement mechanisms for return decisions.
11.4 Third, a better solution needs to be found to deal with
primary carer abduction cases. The statistics on the operation of
the 1980 Hague Child Abduction Convention indicate that contrary
to what was thought at the outset, the majority of cross-border
child abductions are conducted by the sole primary or joint primary
carer of the child. Often it is the mother having left her home
country to live with her husband or partner abroad who, following
the relationship breakdown, leaves with the child to her home State.
The dangers a cross-border child abduction imply for children remain:
In contrast to children lawfully relocated to another State, wrongfully
removed or retained children are at risk of losing contact with
the left-behind parent, extended family and friends and risk losing
touch with the cultural links to the other country, which is why
the international legal framework needs to provide remedies for
these situations. However, the fact that the primary carer is often
the taking parent has brought about unforeseen complications in
practice. How can the
status quo ante abduction
be restored as envisaged by the Convention, if the primary carer
decides not to accompany the returning child (or, if due to criminal proceedings
in the State of return, the taking parent, cannot accompany the
child without risking prison)? The return decision of the 1980 Hague
Child Abduction Convention is meant not to affect the decision on
the merits of custody but in the above-mentioned cases it factually
can bring about a short and long-term change of the primary carer
of the child.
Note
11.5 Fourth, the specialisation of professionals dealing with
these cases needs to be improved. Problems often arise due to the
involvement of non-specialised judges, lawyers and other stakeholders.
Note Clearly
where the expeditious return mechanism of the 1980 Hague Child Abduction Convention
is not well applied, problematic situations can arise, as is reflected,
inter alia, in the case law of the
European Court of Human Rights.
Note Similarly, problems can arise when co-operation
is insufficient between central authorities and other national authorities.
11.6 Fifth, there needs to be broader agreement among all States
on what exactly constitutes the hearing and taking into account
of the views of the child concerned. National legal systems vary significantly
on whether and from which age a child’s views must be heard; often,
this is further complicated when court proceedings are taking place
in the jurisdiction of “origin” of the child, from which the child
has been physically removed.
Note However, it must also be kept in mind
that the European Court of Human Rights has held that the 1980 Hague
Child Abduction Convention does not grant a child the freedom to
choose where he or she wishes to live.
Note
11.7 Sixth and finally, agreed solutions to cross-border family
disputes through specialised mediation services could do much to
prevent the need for the application of the specialised legal instruments
in the first place. All modern international and regional family
law instruments encourage the amicable resolution of disputes. Most
of these instruments thereby make an express reference to “mediation”.
In parallel, a number of international and regional organisations,
including the Council of Europe, have in the past years undertaken
initiatives to promote cross-border family mediation, provide guidance
and elaborate minimum standards in order to safeguard the quality
of mediation.
Note Probably
the most detailed work on cross-border family mediation, including
mediation in the context of international child abduction, has been
undertaken by the Hague Conference on Private International Law.
In 2010, a Working Group drew up the so-called “Principles for the
establishment of mediation structures in the context of the Malta
Process” aiming to set up contact points for international family
mediation assisting individuals in finding specialised mediators
and setting out general requirements for cross-border family mediation.
In 2012, the Guide to Good Practice on Mediation in the context
of the 1980 Hague Child Abduction Convention was published. However,
problems have arisen concerning the cross-border recognition and
enforceability of mediated agreements.
Note For
example, in France, the Central Authority proposes free-of-charge
mediation services when it is seized of a case or when parents so
request it, but only one in ten couples takes up the offer.
Note
