Brussels II ter
The new EU Regulation 2019/1111 (Brussels II ter) is effective since August 1st 2022 in all EU countries, except Denmark.
We will discuss the most important changes, compared to EU Regulation 2201/2003 (Brussels II bis).
The member states should consider appointing one or more courts to handle the return applications (preamble par. 41).
This will increase the level of expertise on the subject and will attribute to expeditious resolution.
The member states are expected to consider limiting the number of appeals possible against a decision granting or refusing the return of the child (preamble par. 42).
This will also contribute to expeditious resolution, especially when court decisions can be suspended during appeal(s).
Decision within 6 weeks
The courts should give the decision on the return application within 6 weeks, except in case of exceptional circumstances (article 24). The appeal courts must also give a decision within 6 weeks.
The courts should in all cases concerning international child abduction as early as possible and at any stage of the proceedings, invite parties to consider the possibility of mediation or other forms of alternative dispute resolution (art. 25). However, mediation or ADR must not slow down the court procedure.
If an agreement is made in mediation, it should be possible, under certain circumstances, for the parents to agree that the court dealing with the return application will give binding legal effect to their agreement (preamble 43, art. 10).
The courts dealing with a return application should have the possibility to order provisional measures, including protective measures necessary to protect the child from the grave risk of physical or psychological harm entailed by the return which would otherwise have led to a refusal or return (preamble par. 46).
Provisional measures could be a temporary decision about residence or visitation.
Off course taking these provisional measures should not slow down the procedure.
Recognition and execution
A court decision holding the return of the child to the home country should be recognized and enforced in all other member states (preamble par. 46, art. 43). It should be possible for a return order to be declared provisionally enforceable, notwithstanding any appeal (preamble par. 47, art. 45).
If execution of the court decision did not take place within 6 weeks, the requesting parent has the right to be informed about the cause of the delay (art. 28).
Refusal of return application
If the court refuses the return of the child, it should in its decision refer explicitly to the relevant articles of the Hague Convention on which the refusal was based (preamble par. 48).
The court should give the parties a certificate with relevant information, including information about the right to start a custody procedure in the home state within 3 months after the rejection. If there is already a custody procedure pending in the home state, the rejecting court is to provide this court in the home country of all documents from the return proceedings that can be relevant for this custody procedure.
The court in the home state has the possibility to make a decision about custody, even if this holds the return of the child to the home country and the decision therefor overrules the rejection of the return application (art. 29).
The opinion of the child
Children who are capable of forming his or her own views must have a possibility in the return application procedure to express their opinion (art. 21). The way in which this can be done is for the member states to decide on. There is no obligation to have a child interview. If the child did not have an opportunity to express its opinion, the court in a member state can refuse to acknowledge and execute the foreign decision in a return application.
You can find the full text of the Regulation on the website of the EU.
Find a lawyer or mediator
For a number of countries, we provide a list of lawyers and mediators who can assist you in drafting an international parenting plan, in preventing conflicts over the primary residence of the children, and in negotiating and litigating over the children in the event of relocation or child abduction.