EU Child Protection Laws
Jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“Brussels II”)
The European Union (EU) has brought together in a single legal instrument the provisions on divorce and parental responsibility, with a view to facilitating the work of judges and legal practitioners and to regulating the exercise of cross-border rights of access. This regulation represents a major step forward in the fight against abductions of children.
Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [See amending act(s)].
Transposed into Gibraltar legislation by the following:
FAMILY PROCEEDINGS (MATRIMONIAL CAUSES) RULES 2010
CHILDREN ACT 2009
CIVIL JURISDICTION AND JUDGMENTS ACT
MATRIMONIAL CAUSES ACT
MAGISTRATES' COURT ACT
Prioritising children's rights
The European Union (EU) gives priority to the child’s right to maintain normal relations with both parents. The child will have the right to make his or her views known on all aspects of parental responsibility, having regard to his or her age and degree of maturity.
Scope, definitions and jurisdiction
The legislation applies to civil proceedings relating to divorce, separation and marriage annulment, as well as to all aspects of parental responsibility. Parental responsibility refers to the full set of rights and obligations in relation to a child’s person or property. In order to ensure equality for all children, the regulation covers all judgments on parental responsibility, including measures to protect the child, independently of any matrimonial proceedings.
The regulation does not apply to civil proceedings relating to maintenance, which are covered by Regulation (EC) No 44/2001 on jurisdiction, recognition and enforcement of judgments in civil and commercial matters.
CIVIL JURISDICTION AND JUDGMENTS ACT
MATRIMONIAL CAUSES ACT
The following are also excluded from the scope of the legislation:
• establishing and challenging paternity;
• judgments on adoption and the related preparatory measures, and annulment or revocation of adoption;
• the child’s first and last names;
• trusts and inheritance;
• measures taken following criminal infringements committed by children.
The legislation establishes a full system of rules on jurisdiction. As regards divorce, it takes over the rules on jurisdiction of Regulation (EC) No 1347/2000.
FAMILY PROCEEDINGS (MATRIMONIAL CAUSES) RULES 2010
MATRIMONIAL CAUSES ACT
In general, matters relating to parental responsibility come under the jurisdiction of the courts of the EU country of habitual residence of the child. In certain cases of relocation, that is of a lawful change of residence of a child, where the courts of the EU country of the former residence of the child have already issued a judgment on parental responsibility (particularly as concerns rights of access), this matter continues to come under the jurisdiction of the courts of that country. Moreover, the spouses may accept the jurisdiction of the divorce court to also decide on matters of parental responsibility. In certain cases, the parents may also agree to bring the case before the courts of another EU country with which the child has a close connection. Such a connection may, for instance, be based on the nationality of the child.
Where a child's habitual residence cannot be established, the EU country in which the child is present will assume jurisdiction by default. This provision applies, for instance, to cases of refugee children or children internationally displaced because of disturbances occurring in their countries of origin. Where it is not possible to define jurisdiction on the basis of the specific provisions laid down by the regulation, each EU country may apply its national legislation. In exceptional circumstances, the case may be referred to the court best placed to hear it, where this is in the best interests of the child.
The courts are required to verify of their own motion whether they have jurisdiction for the purposes of this regulation. If a court of an EU country has no jurisdiction in a matter submitted to it, it must declare of its own motion that it has no jurisdiction. Where proceedings are brought against a respondent who is habitually resident in another EU country, the courts must verify whether the respondent received the document instituting the proceedings in sufficient time to enable him or her to arrange for his or her defence. In urgent cases, the courts may also take interim protective measures relating to persons and property.
Rules on child abduction
The legislation also lays down rules on child abduction (unlawful removal or retention of the child *). The purpose is to combat child abduction in the EU.
A holder of rights of custody * may apply for the return of an abducted child to a central authority or to a court.
immediately before the abduction continue to have jurisdiction until the child is habitually resident in another EU country (subject to the assent of all persons holding rights of custody and a minimum period of one year of residence).
The court in question must issue its judgment within six weeks of the case being submitted to it. The child is heard during the proceedings, unless this appears inappropriate due to his or her age and degree of maturity. Return of the child cannot be refused if the person demanding return has not been heard.
The courts of the EU country to which the child has been abducted can only refuse return of the child if there is a serious risk that return would expose the child to physical or psychological harm (under Article 13(b) of the Hague Convention of 1980). However, the judge must order the child’s return if it is established that adequate arrangements have been made to ensure the protection of the child after his or her return.
If a court rules that a child is not to be returned, it must transfer the case file to the competent court of the EU country in which the child was habitually resident prior to removal. This court takes the final decision as to whether or not the child is to be returned. The judge must give the child and the parties concerned the opportunity of being heard and must also take into account the reasons and the evidence based on which the first judge ruled that the child was not to be returned. If the judge in the EU country of origin reaches a different decision, i.e. that the child should be returned, this judgment is automatically recognised and enforceable in the other EU country without the need for a declaration of enforceability (“abolition of exequatur”). The judgment cannot be challenged, provided that the judge in the EU country of origin has issued a certificate (Annex IV).
Recognition and enforcement
The rules on recognition and enforcement are those laid down by Regulation (EC) No 1347/2000 on this matter. (see Gibraltar transposing legislation above)
The regulation provides for automatic recognition of all judgments without any intermediary procedure being required. It restricts the grounds on which recognition of judgments relating to matrimonial matters and matters of parental responsibility may be refused to the following:
• recognition is manifestly contrary to public policy;
• the respondent was not served with the document that instituted the proceedings in sufficient time to arrange for his or her defence;
• recognition is irreconcilable with another judgment.
For judgments in matters of parental responsibility, there are two further grounds for non-recognition:
• the child was not given an opportunity to be heard;
• a person claims that the judgment infringes his or her parental responsibility, if it was issued without this person having been given an opportunity to be heard.
A judgment on the exercise of parental responsibility can be declared to be enforceable in another EU country on the application of an interested party (and, in the case of the UK, after it has been registered for enforcement). The decision on the application for a declaration of enforceability may be appealed against.
With regard to judgments on matrimonial matters and parental responsibility, the competent court must, at the request of any interested party, issue a certificate using the standard forms set out in Annexes I and II.
All judgments on rights of access and return of children taken in accordance with the regulation will be automatically recognised and enforced in all EU countries without the need for special procedures (abolition of exequatur), provided that they are accompanied by a certificate. Standard forms for certificates concerning rights of access and return of children are set out in Annexes III and IV.
A certificate issued to facilitate enforcement of a judgment is not subject to appeal. However, proceedings for rectifying the certificate can be initiated if it does not correctly reflect the judgment.
The enforcement procedure is governed by the national law of the EU country of enforcement.
A distinction has to be made between a judgment acknowledging rights of access and the practical arrangements for exercising such rights. The judge in the EU country of enforcement can determine the practical arrangements for exercising rights of access if the necessary procedures have not been specified in the judgments by the courts of the other EU country in which rights of access were granted. In determining these practical arrangements, the judge must at all times comply with the basic elements of the judgment conferring the right.
Cooperation between central authorities
Each EU country designates one or more central authorities to exercise several functions, in particular to:
• promote exchanges of information on national legislation and procedures;
• facilitate communication between courts;
• provide assistance to holders of parental responsibility seeking to recognise and enforce decisions;
• seek to resolve disagreements between holders of parental responsibility through alternative means such as mediation.
The central authorities are regularly brought together in the European Judicial Network in civil and commercial matters.
All holders of parental responsibility can request for free assistance from the central authority in the EU country in which the child is habitually resident.
As a general rule, the regulation replaces the existing conventions between two or more EU countries that concern the same matters. It will prevail over certain multilateral conventions on relations between EU countries that concern matters governed by the regulation: the Hague Convention of 1961 (law applicable to protection of minors), the Luxembourg Convention of 1967 (recognition of decisions on marriage), the Hague Convention of 1970 (recognition of divorces), the European Convention of 1980 (custody of children), and the Hague Convention of 1980 (civil aspects of international child abduction).
With regard to relations with the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, this regulation is fully applicable if the child in question is habitually resident in an EU country. The rules on recognition and enforcement also apply if the competent court in an EU country issues a judgment, even if the child in question is habitually resident in a non-EU country that is a party to this convention.
Special provisions are applicable to:
• relations of Finland and Sweden with Denmark, Iceland and Norway as regards the application of the Nordic Marriage Convention of 6 February 1931;
• relations between the Holy See and Portugal, Italy, Spain and Malta.
 Article 13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal of retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorites shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.
CAB SERVICE AIMS TO
Ensure that individuals do not suffer through lack of knowledge of their rights and responsibilities or of the services available to them or through an inability to express their needs effectively.