View source for Child Law (International)

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by ''[[Anatol Dutta]]''
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The harmonization of substantive law in the area of child law ([[Child Protection|child protection]]) is still in its early stages. Noteworthy attempts to directly harmonize child law are, for example, the Convention on the Legal Status of Children Born out of Wedlock of 1975 and the UN Convention on the Rights of the Child of 1989; both Conventions, however, predominantly address the contracting states and not private parties. Additionally, there has been some indirect harmonization of child law by European human rights law; in particular, the [[European Court of Human Rights (ECtHR)]] has often recognized an impact of the European Human Rights Convention on child law and procedural law in child cases—a development which might trigger some convergence of the different laws. Due to this lack of harmonized procedural and substantive rules, international child law is still of particular importance. 

== 1. Sources of law ==

The current rules dealing with cross-border child cases are characterized by a co-existence of international Conventions, European law and national law. Looking at the sources of international child law, one will primarily encounter three Conventions adopted by the [[Hague Conference on PIL]]: the Hague Convention on the Protection of Minors of 1961 (Hague Minors Convention); the Hague Convention on the Civil Aspects of International Child Abduction of 1980 (Hague Child Abduction Convention); and the Hague Convention on Parental Responsibility and the Protection of Children of 1996 (Hague Children Convention)—the latter reforming the 1961 Hague Minors Convention. Those three Hague Conventions are accompanied by the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children of 1980 (European Children Convention) which, however, did not become very important in practice. 

Those international Conventions are partly complemented and partly superseded by European law. The procedural aspects of international child law are addressed by Reg&nbsp;2201/2003, the so-called Brussels&nbsp;II''bis'' Regulation, which succeeded the old Reg&nbsp;1347/2000, the so-called Brussels&nbsp;II Regulation. The Brussels&nbsp;II''bis'' Regulation deliberately adopts procedural rules of the 1996 Hague Children Convention (see COM (2001) 505&nbsp;final, p&nbsp;6; COM(2002)&nbsp;222 final/2, p&nbsp;9); as a consequence, for the interpretation of the Brussels&nbsp;II''bis'' Regulation one might resort to the 1996 Hague Children Convention and its ''travaux préparatoires'' (see opinion of AG Juliane Kokott in ECJ Case&nbsp;C-435/06 – ''C'' [2007] ECR I-10141 paras&nbsp;48&nbsp;ff). 

The overlap of the Hague Conventions and European law is astonishing at first glance if one considers that numerous Member States have ratified the 1961 Hague Minors Convention, all Member States are contracting states to the Hague Child Abduction Convention and the 1996 Hague Children Convention has even been confirmed by the European legislature: the Council of the European Union has requested the Member States in 2002 and 2008 to sign and ratify the 1996 Hague Children Convention in the interest of the European Community, which itself cannot become a party to that Convention. The reasons for the additional activities of the European legislator are twofold: the efficiency of secondary Union law and the federalization of a European area of justice. Despite the Council’s decisions, the 1996 Hague Children Convention has still not been ratified by all Member States. That delay of ratification has triggered the European legislature to unilaterally adopt parts of the 1996 Hague Children Convention by the Brussels&nbsp;II''bis'' Regulation in order to make them obligatory in advance for the Member States.

The slight modifications of the Hague regime, which can be found in the Brussels&nbsp;II''bis'' Regulation, however, are not rooted in different political views but rather in the process of federalizing judicial cooperation within Europe. Some of the Hague provisions may be adequate for sovereign states; yet, they are unsuitable for an increasingly federalized European area of integrated jurisdictions. In this respect, European law, however, does not contradict the Hague Conventions; they allow for a further integration of the contracting states, for instance in Art&nbsp;36 of the Hague Child Abduction Convention and Art&nbsp;52 of the 1996 Hague Children Convention. Hence, international child law is a good example of the declining influence of international Conventions in the context of [[Private International Law (PIL)|private international law]] within Europe—a development which presents the [[Hague Conference on PIL]] with new challenges.

== 2. Scope ==

The substantive scope of both international Conventions and European law in the area of international child law encompasses the attribution, exercise, delegation, restriction and termination of parental responsibility (Art&nbsp;1(1)(b),&nbsp;(2) Brussels&nbsp;II''bis'' Regulation; see also Art&nbsp;3 of the 1996 Hague Children Convention). Excluded from the common rules are, however, all questions of [[Parentage|parentage]], [[Adoption|adoption]], the name and forenames of the child ([[Law of Names|law of names]]) and [[Maintenance|maintenance]] (see Art&nbsp;1(3) Brussels&nbsp;II''bis'' Regulation; Art&nbsp;4 of the 1996 Hague Children Convention). 

Additionally, the Brussels&nbsp;II''bis''&nbsp;Regulation applies, according to its Art&nbsp;1(1), only to ‘civil matters’, in contrast to the 1961 Hague Minors Convention and the 1996 Hague Children Convention. At first glance, one could infer from this restriction that the Brussels&nbsp;II''bis'' Regulation does not apply to measures of the state for the protection of children such as, for example, a child being taken into care or placed in a foster family. The exclusion of such state measures would be supported by the uniform interpretation of the term ‘civil matter’ with the term [[Civil and Commercial Matters|‘civil and commercial matters’]] in other European instruments. According to the ECJ’s interpretation, a ‘civil and commercial matter’ is excluded if the legal relationships between the parties and the subject matter of the claim result from acts of the state in exercise of its public authority (see only ECJ Case&nbsp;29/76 – ''Eurocontrol ''(1976) ECR 1541, para&nbsp;4)—a definition which would probably also cover state interventions in parental responsibility such as the taking into care or placement of a child mentioned above. However, in case ''C ''(ECJ Case&nbsp;C-435/06 – ''C'' [2007] ECR I-10141 paras&nbsp;51 and 53; see also ECJ Case&nbsp;C-523/07 – ''A'' [2009] ECR I-2805 paras&nbsp;21&nbsp;ff) the ECJ has decided that, based on an autonomous and—notably—independent interpretation of the Brussels&nbsp;II''bis'' Regulation, the term ‘civil matter’ covers all proceedings regarding parental responsibility. As a result, the limitation of the Regulation’s scope to ‘civil matters’ has hardly any significance left.

== 3. Jurisdiction, recognition and enforcement of&nbsp;decisions ==

The procedural aspects of international child law within the European Union are almost exclusively governed by European law. While the Brussels&nbsp;II Regulation was limited to proceedings on parental responsibility arising in connection with divorce (Art&nbsp;1(1)(b) Brussels&nbsp;II Regulation), the Brussels&nbsp;II''bis'' Regulation covers all proceedings concerning parental responsibility. Therefore, little room is left for the 1961 Hague Minors Convention, the 1980 European Children Convention and the 1996 Hague Children Convention (Arts&nbsp;60(a) and (d), 61 Brussels&nbsp;II''bis'' Regulation) as well as national law, albeit that the delimitation of the different instruments is quite complicated in detail.

The jurisdictional rules of the Brussels&nbsp;II''bis'' Regulation are widely inspired by the 1996 Hague Children Convention. First, the courts of a Member State have jurisdiction in matters of parental responsibility over a child who is habitually resident ([[Habitual Residence|habitual residence]]) at the time the court is seized (Art&nbsp;8(1) Brussels&nbsp;II''bis'' Regulation; see also Art&nbsp;5 of the 1996 Hague Children Convention). In assessing the habitual residence of a child, the ECJ requires the courts to analyse all circumstances of the individual case and to decide whether the physical presence of the child is not in any way temporary or intermittent and whether the residence of the child reflects some degree of integration in a social and family environment (ECJ Case&nbsp;C-523/07 – ''A'' [2009] ECR I-2805 paras&nbsp;37&nbsp;ff). In doing so, especially ‘the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that state, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration’ (ECJ Case&nbsp;C-523/07 – ''A'' [2009] ECR I-2805 para&nbsp;39; see for infants also ECJ Case&nbsp;C-497/10 PPU – ''Mercredi''). A change of the child’s habitual residence after seizure of the court in the sense of Art&nbsp;16 Brussels&nbsp;II''bis'' Regulation does not affect the jurisdiction of that Member State and, hence, results in a ''perpetuatio fori ''(see also Art&nbsp;5(2) of the 1996 Hague Children Convention). Furthermore, the courts at the child’s habitual residence, under certain circumstances, remain competent if the child lawfully changes his or her habitual residence (Art&nbsp;9 Brussels&nbsp;II''bis'' Regulation) or if the child is wrongfully removed or abducted from the Member State of his or her prior habitual residence (Art&nbsp;10 Brussels&nbsp;II''bis'' Regulation; see also Art&nbsp;7 of the 1996 Hague Children Convention).

Where a child’s habitual residence cannot be ascertained or if the child is a refugee, the courts of the Member State in which the child is physically present have jurisdiction (Art&nbsp;13 Brussels&nbsp;II''bis'' Regulation; see also Art&nbsp;6 of the 1996 Hague Children Convention). If jurisdiction cannot be established under the Brussels&nbsp;II''bis'' Regulation, the ''lex fori'' of the Member States determines jurisdiction (Art&nbsp;14 Brussels&nbsp;II''bis'' Regulation). Furthermore, the jurisdiction of a court not competent under the Regulation can be ‘accepted’ by the spouses if the proceedings arise in connection with a divorce (Art&nbsp;12(1) Brussels&nbsp;II''bis'' Regulation; see also Art&nbsp;10 of the 1996 Hague Children Convention). Additionally, the parties can prorogate the jurisdiction of a Member State court if the child has a substantial connection to that Member State (Art&nbsp;12(3) Brussels&nbsp;II''bis'' Regulation). Quite innovative for civilian systems is the possibility for a competent court to transfer its jurisdiction to a court better placed to hear the case (Art&nbsp;15 Brussels&nbsp;II''bis'' Regulation; see also Arts&nbsp;8 and 9 of the 1996 Hague Children Convention). That provision comes close to the [[Common Law|common law]] doctrine of ''forum non conveniens''.

Both, the prorogation of jurisdiction (Art&nbsp;12(1) and (3) Brussels&nbsp;II''bis'' Regulation) as well as the opportunity to transfer the case to a court better placed (Art&nbsp;15(1) and (5) Brussels&nbsp;II''bis'' Regulation) are subject to the best interest of the child. The notion ‘best interest of the child’ in that context, however, only refers to the child’s well-being regarding jurisdiction. The judge has especially to decide whether the courts potentially competent under Arts&nbsp;12 and 15 Brussels&nbsp;II''bis'' Regulation are as capable of assessing the best interest of the child in substance as the courts at the habitual residence, which, in principle, have primary jurisdiction.

The rules of the Brussels&nbsp;II''bis'' Regulation on [[Recognition and Enforcement of Foreign Judgments|recognition and enforcement of decisions]] in matters relating to parental responsibility within Europe are geared to the general European rules for [[Civil and Commercial Matters|civil and commercial matters]], particularly those contained in the Brussels&nbsp;I Regulation. Only the reasons for denial of recognition are—unlike under the Brussels&nbsp;I regime—reviewed already in the first instance of the ''exequatur'' proceedings (Art&nbsp;31(2) Brussels&nbsp;II''bis'' Regulation). Furthermore, provisional measures ordered by a court competent under Art&nbsp;20 Brussels&nbsp;II''bis'' Regulation are not enforceable in other Member States (ECJ Case&nbsp;C-256/09 – ''Purrucker&nbsp;I''<nowiki>; see as to those measures also ECJ Case&nbsp;C-403/09 PPU – </nowiki>''Detiček ''and ECJ Case&nbsp;C-296/10 – ''Purrucker&nbsp;II''). Noteworthy, however, is the fact that for certain decisions on parental responsibility, the necessity of ''exequatur'' proceedings has been abolished. Namely decisions on the right of access (Art&nbsp;41 Brussels&nbsp;II''bis'' Regulation) and on the return of an abducted child (Art&nbsp;42 Brussels&nbsp;II''bis ''Regulation; see ECJ Case C-195/08&nbsp;PPU – ''Rinau'' [2008] ECR I-5271; ECJ Case C-211/10 PPU – ''Povse'') are directly enforceable in all Member States. Even the violation of fundamental procedural rights cannot be invoked in the enforcement Member State but only in the Member State whose decision is to be enforced (ECJ Case&nbsp;C-491/10 PPU – ''Aguirre Zarraga''). However, one should not overlook the fact that the enforcement procedures have not been harmonized in Europe (see Art&nbsp;47 Brussels&nbsp;II''bis'' Regulation). For that reason, delays in enforcing foreign decisions on rights of access and return of the child—decisions which are already quite difficult to enforce in domestic cases—will be inevitable, the more so as, in Germany for instance, the enforcement of these decisions is implemented in a separate enforcement procedure under national law (see §&nbsp;44 IntFamRVG, §§&nbsp;88&nbsp;ff FamFG).

== 4. Judicial cooperation in cross-border child abduction cases ==

In cases of cross-border child abduction the abductor wrongfully removes a child from the state of his or her [[Habitual Residence|habitual residence]] in another state in breach of another’s rights of custody. The 1980 Hague Child Abduction Convention offers a highly effective tool to ensure the swift return of the child to the state of original habitual residence and guarantees the fast re-establishment of ''status quo ante—''thereby not only protecting the child’s best interests and the private rights of custody violated by the abductor but also the jurisdiction of the state of original habitual residence (eg according to Art&nbsp;8(1) Brussels&nbsp;II''bis'' Regulation, see 3. above). The Hague Child Abduction Convention differs from typical Conventions on recognition and enforcement of foreign decisions, such as, for instance, the 1980 European Children Convention. In contrast to such instruments under the Hague Child Abduction Convention, no foreign decision on the return of the child is enforced; rather, the Hague Convention obliges the state where the child is retained to initially decide about the return of the child regardless of whether a decision has already been reached in the state of previous habitual residence. Therefore, the Hague Child Abduction Convention contains rules of substantive law determining the conditions under which a child has to be returned to the state of his or her original residence if it has been wrongfully—ie in breach of another’s rights of custody being actually exercised (Art&nbsp;3 of the Hague Child Abduction Convention)—removed to or retained in a contracting state (Arts&nbsp;1(a),&nbsp;12,&nbsp;13 of the Hague Child Abduction Convention).

Furthermore, the Hague Child Abduction Convention provides guidelines for the return proceedings. In particular, the Convention determines how the contracting states have to implement the return by cooperating through central authorities (Arts&nbsp;6–10, 24 of the Hague Child Abduction Convention), it defines how the wrongfulness of the child’s removal or retention should be ascertained (Arts&nbsp;14&nbsp;ff, 23 of the Hague Child Abduction Convention) and specifies how the return proceedings (Art&nbsp;16 of the Hague Child Abduction Convention) and return decisions (Art&nbsp;17 of the Hague Child Abduction Convention) relate to potential proceedings and decisions on the merits of the custody case in the state in which the child is retained. Moreover, the Hague Child Abduction Convention obliges the contracting states to use for the return proceedings the most expeditious procedures available under national law (Art&nbsp;2 s&nbsp;2, Arts&nbsp;11, 12 of the Hague Child Abduction Convention). Proceedings for the return of the child are a race against the clock: the later a decision is reached, the more the connections to the state of original habitual residence are weakened and the more a new reality is created solely by the lapse of time.

The European legislature—contrary to initial suggestions—did not fundamentally change the return mechanisms of the Hague Child Abduction Convention with the Brussels&nbsp;II''bis'' Regulation. Rather, the Brussels&nbsp;II''bis'' Regulation tries to effectuate the Hague Child Abduction Convention in order to develop an even more effective mechanism for the swift return of abducted children within the federalized European area of justice—a further integration which is explicitly envisaged by Art&nbsp;36 Hague Child Abduction Convention. Article&nbsp;11(3) Brussels&nbsp;II''bis'' Regulation, for example, further specifies the principle of expeditious proceedings contained in the Hague Child Abduction Convention by requiring the courts of the Member States to issue an enforceable decision within six weeks.

Furthermore, European law limits the possibilities of refusing the return of a child according to Art&nbsp;13(1)(b) Hague Child Abduction Convention in cases where the return could ‘expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’. According to Art&nbsp;11(4) Brussels&nbsp;II''bis'' Regulation, a child is to be returned if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. This rule calls for a cooperation of the Member States courts in return proceedings and introduces flexible procedural tools such as undertakings and mirror or safe harbour orders to jurisdictions where those institutions were, so far, unknown''. ''Moreover, European law grants (within the Union) the Member State of the original habitual residence the last word on the return of the child: Art&nbsp;11(8) Brussels&nbsp;II''bis'' Regulation clarifies that a decision declining a return based on Art&nbsp;13 of the Hague Child Abduction Convention does not impact the direct (Art&nbsp;42 Brussels&nbsp;II''bis'' Regulation) enforcement of a subsequent decision of the original Member State court which orders—remaining competent under Art&nbsp;10 Brussels&nbsp;II''bis'' Regulation—the return of the child. This ‘Brussels&nbsp;II''bis'' Regulation return procedure’ in the Member State of the child’s original habitual residence reduces the ‘Hague Child Abduction Convention procedure’ in the Member State to which the child has been abducted to a mere preliminary procedure (see notably ECJ Case C-211/10 PPU – ''Povse'').

In order to facilitate the ‘Brussels&nbsp;II''bis'' Regulation return procedure’ in the Member State of the original habitual residence, Art&nbsp;11(6) Brussels&nbsp;II''bis'' Regulation obliges the courts declining a return of the child based on Art&nbsp;13 Hague Child Abduction Convention to transmit the decision as well as the relevant files and documents to the Member State court of original habitual residence within a month, either directly or through its central authority. The court or the central authority thereafter notifies the parties and invites them to make submissions in those proceedings (Art&nbsp;11(7) Brussels&nbsp;II''bis'' Regulation). Furthermore, European law even sets its own procedural standards in order to strengthen the child’s and the applicant’s position in the return proceedings. Article&nbsp;11(2) Brussels&nbsp;II''bis'' Regulation, for example, provides that the child is to be heard by the court unless this appears inappropriate having regard to his or her age or degree of maturity. The applicant also has to be heard according to Art&nbsp;11(5) Brussels&nbsp;II''bis'' Regulation.

== 5. Transnational cooperation ==

Cross-border child cases often require a close cooperation of the states involved and, in particular, of the relevant authorities and courts in order to guarantee the child’s best interests. Both the Hague Conventions and the Brussels&nbsp;II''bis'' Regulation therefore provide that the contracting and Member States should cooperate mainly through their central authorities in order to implement the aims and purposes of the relevant instruments (Arts&nbsp;6&nbsp;ff, 24 of the Hague Child Abduction Convention; Arts&nbsp;29&nbsp;ff of the Hague Children Convention; Arts&nbsp;53&nbsp;ff Brussels&nbsp;II''bis'' Regulation; see also [[European Judicial Network in Civil and Commercial Matters]]). It is striking that the states have withdrawn their sovereignty rights to a degree such that in some cases even direct cooperation of the courts is allowed. As already seen, this applies, for instance, to the cooperation of courts in cases of child abduction where a return depends on protective measures in the state to which the child should be returned (see 4. above). But also in matters of jurisdiction, courts may cooperate directly, for example, when assessing the transfer to a forum better placed to hear the case (Art&nbsp;15(6) Brussels&nbsp;II''bis'' Regulation; Arts&nbsp;8(3), 9(2) of the Hague Children Convention; see also the duties of cooperation placed upon the courts by ECJ Case&nbsp;C-523/07 – ''A'' [2009] ECR I-2805 and ECJ Case&nbsp;C-296/10 – ''Purrucker&nbsp;II'').

== 6. Choice of law ==

In contrast to the 1961 Hague Minors Convention and 1996 Hague Children Convention, the Brussels&nbsp;II''bis'' Regulation does not contain choice of law rules. Hence, European law does not replace the conflict rules of those Conventions (Art&nbsp;62(2) Brussels&nbsp;II''bis'' Regulation). However, the Brussels&nbsp;II''bis'' Regulation, indirectly, influences the applicable law. Both the 1961 Hague Minors Convention and the 1996 Hague Children Convention are inspired by the principle of synchronizing ''forum'' and ''ius'': the competent courts should primarily apply their own law (Arts&nbsp;2, 4(2) of the 1961 Hague Minors Convention; Art&nbsp;15(1) of the 1996 Hague Children Convention). Only in exceptional cases may the courts apply or take into consideration the law of another state if that state has a substantial connection with the situation (Art&nbsp;15(2) of the 1996 Hague Children Convention). However, some issues are subject to special conflict rules, such as the so-called ''ex lege ''relationships according to Art&nbsp;3 of the 1961 Hague Minors Convention (‘relationship subjecting the infant to authority, which arises directly from the domestic law’), parental responsibility established by operation of law or agreement (Art&nbsp;16(1) and (2) of the 1996 Hague Children Convention) or the protection of third parties regarding the child’s representation (Art&nbsp;19 of the 1996 Hague Children Convention). Furthermore, the 1996 Convention deals with the consequences of a change of the child’s habitual residence and, thus, a change of the applicable law (Arts&nbsp;15(3), 16(3) and (4), 17 s&nbsp;2 of the 1996 Hague Children Convention). 

The synchronization of the applicable law and jurisdiction aimed at by the 1961 Hague Minors Convention and the 1996 Hague Children Convention assumes that the jurisdiction is also determined by those Conventions. Hence, the question arises whether the ''lex fori'' principle applies if jurisdiction—as regularly in European cases (see 3. above)—is determined by the Brussels&nbsp;II''bis'' Regulation. The answer is in the affirmative. The argument that it is in the best interest of the child if the courts regularly apply their own law prevails.

==Literature==
Nigel Lowe, ‘Negotiating the revised Brussels&nbsp;II Regulation’ [2004] International Family Law 205; Bertrand Ancel and Horatia Muir Watt, ‘L’intérêt supérieur de l’enfant dans le concert des juridictions—le Règlement Bruxelles II bis’ (2005) 94 Rev crit dr&nbsp;int priv 569; Michael Coester, ‘Kooperation statt Konfrontation: Die Rückgabe entführter Kinder nach der Brüssel-IIa-VO’ in Birgit Bachmann and others, ''Festschrift Peter Schlosser'' (2005) 135; Dagmar Coester-Waltjen, ‘Die Berücksichtigung der Kindesinteressen in der neuen EU-Verordnung “Brüssel IIa”’ [2005] Zeitschrift für das gesamte Familienrecht (FamRZ) 241; Peter McEleavy, ‘The New Child Abduction Regime in the European Union: Symbiotic Relationship or Forced Partnership?’ (2005) 1 Journal of Private International Law 5; Peter Schlosser, ‘Neue Perspektiven der Zusammenarbeit von Gerichten verschiedener EG-Staaten im Kindschaftsrecht’ in'' Festschrift Dieter Schwab'' (2005) 1255; Andrea Schulz, ‘Haager Kinderschutzübereinkommen von 1996: Im Westen nichts Neues’ [2006] Zeitschrift für das gesamte Familienrecht (FamRZ) 1309; Nigel Lowe and Katarina Horosova, ‘The Operation of the 1980 Hague Abduction Convention—A Global View’ (2007) 41 Family Law Quarterly 59; Alegría Borrás, ‘Protection of Minors and Child Abduction under the Hague Conventions and the Brussels-II''bis'' Regulation’ in Jürgen Basedow, Harald Baum and Yuko Nishitani (eds), ''Japanese and European Private International law in Comparative Perspective'' (2008) 345; Anatol Dutta, ‘Europäische Zuständigkeiten mit Kindeswohlvorbehalt’ in ''Festschrift Jan Kropholler'' (2008) 281; Sara Tonolo, ‘La sottrazione dei minori nel diritto processuale civile Europeo: Il Regolamento Bruxelles II-bis e la Convenzione dell’Aja del 1980 a confronto’ [2011] Riv Dir Intern Priv & Proc 81.</div>


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