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European Commission

[Check Against Delivery]

Martine Reicherts

Justice Commissioner

Protecting children in cross-border family conflicts

International Child Abduction in the European Judicial Space Conference

Rome, 23 October 2014

Ladies and gentlemen,

Europeans increasingly move across borders – to live, study, work in another Member State, and to form couples and families. But these can break up. Statistics show that around 140,000 international couples in Europe divorce each year. And they need support as they grapple with the implications. Family breakdowns are always difficult and stressful, but for international couples the situation is aggravated by the greater legal complexities involved.

As every Member State maintains its own system of family law, partners often have to navigate between different, sometimes conflicting national rules. In many cases, they return to their country of origin with their children. It is crucial that parents know under which conditions they are allowed to do this.

This shows: Parents need clear and consistent rules they can rely on. And Europe needs rules that provide legal clarity in international family law, especially when children are involved.

The Brussels IIa Regulation

The "Brussels IIa Regulation" as we call it, is a milestone in European family law and a building block of a common judicial area.

Since 2005, this Regulation has helped determine which court is responsible for each case where cross-border family disputes are involved. The Regulation has facilitated the mutual recognition and enforcement of court judgments among Member States.

Children are particularly vulnerable, even more so in cross-border situations. Every year, thousands of children in the EU are affected by cross-border family conflicts. They often become involved in long legal disputes. In some cases, sadly, children may even be abducted by one of their parents.

We have taken action to put an end to such difficult and damaging situations with the Brussels IIa Regulation. Under these rules, the child must be returned immediately to the place where they lived before.

And we have not just provided legal clarity. The European Commission has also been active in supporting parents and children in distress. It has helped fund the 116000 missing children hotline, which has been set up in almost all Member States. Moreover, the Commission has co-financed child abduction alert mechanisms. Unfortunately, to date, only twelve Member States have such mechanisms in place. I sincerely hope that we will soon see child abduction alert mechanisms in all EU countries. They can save lives!

Progress has been made, but challenges remain

An implementation report issued by the European Commission earlier this year shows that the Brussels IIa Regulation has been working well so far. This is very encouraging.

However, the report also points to some shortcomings, which we need to address. Let me name a few:

  1. First, whereas in some areas of family law, such as access rights, simplified procedures already exist, obstacles remain for the recognition and enforcement of decisions on the custody of children. This causes unnecessary complications and delays for parents who legitimately expect a judgment to take immediate effect.

  2. Second, differences in national rules on the right of the child to be heard cause serious problems. In matters of custody rights for example, where additional formalities still apply, the recognition of a judgment is frequently opposed on the ground that the judgement was delivered without the child being given an opportunity to be heard. Similarly, an order for the return of an abducted child will only be enforced automatically if the court certifies that safeguards have been applied. In practice this means that the court must confirm that the child has been heard before the child can be returned.

The way forward

Judicial cooperation in family law needs mutual recognition, which in turn relies on mutual trust.

Mutual trust is the foundation of the whole European Area of Justice. This trust will enable people to reap the full benefits of European family law.

One important means of building trust is to establish clear rules and a systematic dialogue. This conference is part of that process. It continues the dialogue on the Brussels IIa Regulation.

It is equally important to build mutual trust between central authorities who support parents in proceedings to bring back a child. The European Commission organises regular bilateral meetings of central authorities in the European Judicial Network to provide a forum for discussion on difficult cases. Over 150 such exchanges have taken place to date.

This year, we launched a campaign to make international couples aware of national and European provisions on child custody and child abduction. We will show you the campaign video in a minute, at the end of my intervention.

In addition to this information campaign, the Commission held a public consultation on how we can further improve existing family law.

We have gathered the opinions and experiences of practitioners, judges, lawyers and citizens to get a better picture of the remaining challenges and possible solutions.

The replies show that the Regulation is generally seen as a helpful and efficient tool in cases of cross-border child abduction. Respondents appreciate the clarity it gives to identify the appropriate forum to determine disputes concerning children. They also see the obligation to apply the swiftest procedure as positive. And they regard the recognition and enforcement provisions, if operated correctly and in the spirit that the Regulation intends, as beneficial for ensuring proper respect for decisions taken by the courts.

Yet, we have also learned that there are problems. We see inconsistency in the operation of the Regulation across Member States. Sometimes it is caused by a lack of clarity in the Regulation and sometimes by inadequate application. Let me give you an example mentioned again and again in the consultation – and one possible solution:

  1. First, both parents and practitioners pointed to difficulties related to the provision stating that judgments have to be issued no later than six weeks after the application for the return of the child is lodged. This is interpreted differently in different Member States, which in turn causes insecurity for judges and practitioners, whereas parents' hopes of receiving a decision within six weeks are often disappointed.

  2. Second, many judges argue for a specialisation of courts, as it already exists in Germany, for instance, where only a limited number of courts handle cases of child abduction. In this kind of system, cases can be determined more quickly and with a better chance of consistent outcomes.

This public consultation has also confirmed an issue flagged already in the Commission's report: the enforcement of a return order is not as straightforward as it should be. There are still cases in which parents get stuck in lengthy proceedings even when they have obtained an enforceable return order. All of us here can imagine how painful this is.

We are currently assessing the outcome of the consultation. In parallel, we are evaluating the Brussels IIa Regulation. I am convinced that this will help the incoming Commission under Jean-Claude Juncker find adequate solutions.

The Commission has also conducted a study on children's involvement in judicial proceedings. The findings from that study can usefully feed into the review of Brussels IIa.

Conclusion

Europe has come a long way in developing family law. Over the past thirteen years we have taken a giant leap forward towards a true European area of Justice.

We have laid the foundations of mutual trust, and a solid system of mutual recognition of national family decisions. But I think we can still do more to help families undergoing the difficult process of breaking up.

I am therefore very pleased that the Italian Presidency has organised this event. Sharing our first-hand experience and expertise will help us to make the handling of child abduction cases more effective and to better protect the best interests of the child.

I hope you have good, interesting discussions, and I suggest that we now watch the video on child custody and child abduction.

Thank you.


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