Protective measures (Brussels II ter Regulation)
THE REGULATION (EU) 2019/1111 OF THE COUNCIL of June 25th, 2019, on the jurisdiction, recognition, and enforcement of decisions on matrimonial matters, parental responsibility, and international child abduction (recast) has been in effect since August 1st, 2022.
Chapter III contains regulations regarding international child abduction, specifically articles 22 to 29.
When ordering the return of the child, it is appropriate and possible for the court to order provisional measures, including precautionary measures under this Regulation, that it deems necessary to protect the child from the serious risk of physical or mental harm; which causes the return of the child and which would otherwise lead to the refusal of the return order.
In this blog, I summarize a Spanish abduction case in which the court ordered protective measures for the child when ordering the childs to return to Germany: Order number 126/2023 from Audiencia Provincial de Barcelona Chamber 18 on March 7th 2023.
This court decision establishes the return of the child whilst establishing a series of protective measures that guarantees a safe return of the child (article 27). This ruling is a prime example of how these measures can be adapted to the child’s situation.
This is a case concerning a family that had fled the Ukraine due to the war. When the marriage broke down, the mother took the child to Spain. Consequently, the father asked the Spanish court to order the return of the child to Germany.
The mother claimed that the return of the child would expose her to physical or mental danger or put her in an intolerable situation.
The Spanish court noticed that in the ongoing procedure in Germany, the German court did not order any protective measures for the child and the mother. Therefore, the Spanish Court ordered the following provisional measures which I have summarized below:
a) The mother is given 15 days to accompany the child during her return.
b) The father is given 15 days to provide accommodation for them.
c) The father must pay each month € 1.000, to the mother.
d) If the mother does not return the child, the father can pick up the child, with the help of the police.
e) The International Red Cross and the National police will be informed immediately of the situation for their follow up, and to avoid new fights. They will also maintain the retention of the passport of the child until the return.
f) The father will be able to see the child 2 hours a week, with professional supervision.
The Spanish court ordered that these provisional measures will last until the German court decides otherwise (in the divorce procedure).
These are the most important parts of this court decision:
5. JUSTIFICATION OF PROTECTIVES MEASURES: APLIO SENSU
The Judgment of August 2, 2022, of the Court of Offenbach am Main prohibits the mother from going abroad, even temporarily, and imposes a border blockade that prohibits her from taking the child outside the borders of the Federal Republic of Germany and the other contracting states to the Schengen Agreement without the written consent of the parent or judicial authorization. The Court ordered the Federal Police to prevent the girl from leaving the country. The Court stated that preliminary precautionary measures are pending and that a custody decision requires a prior personal hearing of the mother and an investigation into the girl’s condition.
The art. 13.1 b) of the 1980 Hague Convention refers to the cause for refusal to give a return order as there is a serious risk that the return of the child would expose him or her to physical or mental danger or put the child in an intolerable situation.
The mandate is interpreted in the sense that paragraphs 1b and 2 of the same article 13 establish exceptions that are clearly based on considering the child’s interest. However, as has already been indicated above, the Convention has given precise content to this concept. Thus, the interest of the child to not be displaced from his habitual residence, without sufficient guarantees that the new one will be stable, yields, in these cases, to the primary interest of any person not to be exposed to physical danger or psychic, or placed in an intolerable situation (Section 29 of the Explanatory Report Pérez-Vera).
We have no doubt that the war situation and the refugee status of mother and daughter can place them in an intolerable situation if they do not receive the proper support. Although this is not the meaning of the mandate, the reality described allows us to analyze the possibility of extensive precautionary measures.
The art. 27.3 of the Regulation specifies that when a court considers the possibility of refusing the return of the child solely on the basis of Article 13, first paragraph, letter b) of the 1980 Hague Convention, it will not deny the return of the child if the party requesting the return of the child demonstrates to the court, or if otherwise established to the court, that provisions have been made to ensure the protection of the child after their return. But we are unaware that the German authorities have ordered protection measures for the daughter and mother, either in the divorce process or as war refugees. There is no record of precautionary or provisional measures in favor of mother and daughter in German territory.
This leads us to impose certain precautionary measures.
6. PROTECTIVE AND EXECUTIVE MEASURES
Regarding the return of the child, we understand that it cannot occur automatically, with the sole authority of the father to take the daughter. We will allow the child to remain with the parent who has abducted her and who assumes her effective care until other protective measures are adopted in that Member State or there is a decision on the merits of custody rights after the return. The father and the judge have yet to raise the possibility of visits while the return of the child is being resolved, but we will set a minimum, already in German territory.
We adopted measures due to the young age of the child-born, September 15th, 2020 (she is two years and five and a half months old). Her mother’s refugee situation due to the war in Ukraine (the mother is the referenced caregiver), the girl’s ignorance of the situation of her father, and the lack of accreditation of certain qualities of co-parenting (partly reflected during cohabitation according to the facts that have been accredited), partly deduced from the paternal attitude, their answers and the features of non-verbal communication during their interrogation. There are no guarantees that the father can carry out the immediate care of the child due to the circumstances that he is experiencing. The father is of German nationality (and it seems he is also Spanish), and he has a work permit in Germany until December 1st, 2029.
We are taking into account that the father provided accommodation and food during the cohabitation and that he promised, while his daughter and mother were visiting Ukraine, to provide a new home (terminating the contract of the previous one). We also take into account that Mr. José stated to the court that he makes 3.000 to 4.000 euros a month, while the mother has no income and is a refugee in Spain and cannot leave the Shenhgen Area, by order of the German Court.
In the interest of the child and under the protection art. 27 5 that refers to art. 15 of the Regulations, we agree that, until the competent Court decides: a) The mother, Federica, should accompany the child during the return, for which Federica is granted a period of 15 days from the date on which the father communicates the availability of housing for the daughter and the mother. b) Within 15 days from this judgment, Mr. José must
provide lodging for the daughter with the mother and, in his case, with the brother, facilitate independent housing. c) The father will pay each month, through means of food for the daughter and to help the wife as the primary caregiver, until the German judge provides otherwise. From the date of his resolution, he must pay 1.000 euros per month with the usual advance payment precautions (in the first five days of each month) and update (according to the IPC). The payments are to be made within three days in the account designated by the mother or by money order to the home address (with a maximum of two months before returning to Germany); d) if the wife does not return with the daughter to Offenbach am Main within 15 days, the father may pick up the child from her home, upon agreement by the Court, with the help of the public force and transfer her to Germany; e) The International Red Cross (International Social Service) and the National Police will be informed immediately of the situation of the mother and daughter, for their follow-up and to avoid a new fight, while maintaining the retention of the passport of the child agreed by the xxxx judge until the return. f) For the time being, the father will be able to see the child two hours a week, with the presence of a public supervision service. This purpose is requested under art. 81 of the Regulation and the collaboration of the German Court.
The District Court of Offenbach am Main shall be served without delay on this Order.
7. THE COSTS
The costs of the appeal should not be imposed in accordance with Articles 398.1 and 394 of the LEC.
RULING
1. We uphold the appeal and revoke the appealed judgment.
2. We uphold the demand. We declare the illegality of the transfer and order the return of the child Josefina to the Federal Republic of Germany (Offenbach am Main).
3. Until the competent Court decides, we agree that a) the child, Josefina, must be accompanied by her mother, Federica, during the return. She is granted 15 days from the date on which the father communicated the availability of the housing for the daughter and the mother; b) Within 15 days from the date of this Judgment, Mr. José must previously provide accommodation for the daughter with the mother, and where appropriate, with the brother, providing independent housing; c) the father will pay each month, by way of food for the daughter and help to the wife as a caregiver until the German judge states otherwise. The amount to be paid is 1,000 euros per month, from the date of this resolution, with the usual precautions of advance payment (in the first five days of each month) and update (according to the IPC), payment to be made in the account designated by the mother within three days or by postal order to her address (with a maximum of two months, before the return to Germany); d) if the wife does not return with the daughter to Offenbach am Main within 15 days, the gather may pick up the child from her home and transfer her to Germany, upon agreement by the Court and with the help of the public force; e) The International Red Cross (SSI) and the National police will be informed immediately of the situation of the mother and daughter for their follow-up and the avoidance of potential new fights. They must also maintain the retention of the passport of the child agreed by the judge of Badalona until the return; f) For the time being, the father will be able to see the child two hours a week, with the intervention of a public supervision service, whose purpose is requested under art. 81 of the Regulation, the collaboration of the German court.
This decision will be immediately notified to the Offenbach am Main District Court, and a copy will be sent to the National Police and the International Red Cross (International Social Service)
4. We do not rule on the costs of the appeal.
Esther Susin (Senior lawyer)
Danielle Bloching (translator)
Read more about child relocation and child abduction in Spain