Child removal or retention under the Brussels II BIS regulation : a comparative analysis

Abstract

The purpose of this in-depth study is to measure the success of Council Regulation 2201/20031, in furthering the aims of the Hague Convention2 towards protecting the best interests of the child against international wrongful removals and retentions since its entry into force on the 1st of March 2005.3 To fulfill this aim, this dissertation tries to answer the effects and implications in the application of the various aspects of the said regulation by exploring relevant case-law and literature pertinent to the matter at hand, as well as examining how international institutions and states are reacting and working to reduce this ever-growing problem in the light of the mechanisms presented under the Regulation and the Hague Convention. This thorough analysis enabled the author of this thesis to elicit the strengths and weaknesses of the above-mentioned Regulation and explore possible suggestions with the aim of solving the drawbacks which the said regulation poses. To this effect, the first chapter focuses on the implementation of the Hague Convention and the said Regulation into the national laws of the Member States and how these two instruments are applied in practice showing that the application thereof is highly dependant on the vital role of the Central Authorities set up under both instruments to serve as a link between national courts and Central Authorities of other Member States in securing the prompt return of wrongfully removed or retained child/ren, either voluntarily or through court proceedings. This in turn highlights the need for such Central Authorities to be sufficiently staffed and resourced and the necessity of the judiciary to liaise with each other. The second chapter reveals the concepts established by the Hague Convention and the Regulation that aid Member States in assessing which court is competent to hear cases on custody and where the child is to live. However the interpretation of such concepts is left in the hands of the national courts and this has undermined the consistency required for a successful application of the Regulation. In the EU sphere the CJEU did attempt through its case law to limit this discretionary margin given to Member States. However, as this chapter discloses, the lack of certain definitions which are of particular importance leaves much to be desired. The third chapter discusses the defences which may be raised to object an application for return of a child. These defences, already interpreted very narrowly by courts, have been made even more stringent through the adoption of article 11 of the Regulation with the aim of further ensuring the immediate return of the child. This chapter also delves into the overall impact of the European Court of Human Rights case, Neulinger and Shuruk v. Switzerland on the future effectiveness of the Hague Convention and the Regulation particularly on whether such a case has the effect of lowering the threshold raised under article 13(b) of the Hague Convention. The fourth chapter highlights the changes effected by article 11 of the Regulation to the Hague Convention Rules on child removal and retention. The chapter indulges with particular interest in the special procedure provided under article 11(6)-(8) which has been controversially named by judiciary and practitioners as 'the trumping provision' and or 'second bite'. The aim behind it is to see whether in allowing the left behind parent, in the event of a non-return order, to institute custody proceedings before the court of origin, with the possibility that such Court issues a subsequent return order which shall, upon certification by the issuing judge, be automatically enforced in the Member State where the child has been removed to and in all other EU Member States furthers or otherwise the aim of the Regulation and Hague Convention. The last chapter is the culmination of the whole purpose behind this dissertation which is precisely whether the Regulation is in fact thriving in its aim to protect the best interests of the child by securing its prompt return. To this effect, this chapter vi brings out in the Regulation the decisive progress it has made in the combat of parental child removal or retention, together with the anomalies and difficulties the author of this thesis as well as judges, scholars on the subject, lawyers and other professionals have intercepted when interpreting and applying its concepts and principles, as examined in the previous chapters, during these six years since its adoption. In this chapter the writer even suggests how may the Regulation be better implemented and improved to encourage uniformity and safeguard legal certainly in the handling of international wrongful child removal and retention to further encourage child protection.