Conflicts of EU courts on child abduction: the reality of Article 11(6)-(8) Brussels IIa proceedings across the EU

Abstract

Article 11(6)-(8) of the Brussels IIa Regulation for the courts of the habitual residence to insist on the return of a child that has been abducted after a court in the State where the child was abducted to has refused to return the child on the basis of one of the exceptions to the duty to return provided for in Article 13 of the Hague Child Abduction Convention 1980. It will reveal how infrequently used and largely ineffective the Article 11(6)- (8) system is and will make proposals for law reform in the current revision of the Brussels IIa Regulation.Keywords: international family law; child abduction; intra-EU cases; Brussels IIa Regulation; Hague Child Abduction Convention; gender of abducting parent; right of a child to be heard; right of parents to be heard; grave risk of harm; child's objections to return; consent; acquiescence.

The Interaction of the 1980 Child Abduction Convention with the Brussels II-ter Regulation: A Focus on the Regime of Recognition and Enforcement

“…The Brussels II-ter Regulation has also substantially intervened on one of the aspects supplementing the application of the 1980 Hague Convention that had caused the most critical problems in practice, namely the so-called 'overriding mechanism' (which some scholars have actually proposed to remove in its entirety from the recast Regulation: Laziĉ and Pretelli 2020/2021, pp. 178, 181; González Marimón 2022, p. 281; for a broader analysis of the issues stemming from the application of the previous Article 11( 6)-( 8) of Regulation No 2201/2003, see Beaumont et al 2016; in the Italian legal order, Honorati 2015). As is well known, this provision allows the court of the Member State of former habitual residence to issue a decision ordering the return of the child that is capable of prevailing over the contrary decision of the court of the Member State of refuge, and this decision will further benefit from a special enforcement regime.…”

Mutual trust through the looking glass: The protection of children’s fundamental rights in EU return proceedings

“…59-61). However, the capacity and the willingness of the national courts of the Member State in which the child was habitually resident right before the abduction to ensure an equivalent protection of the child's fundamental rights has not always been verified in practice (Beaumont et al 2016).…”

“…The prioritisation of the return policy over the protection of the child seemed very onerous and unreasonable (Bartolini 2019). Their discontent was clearly manifested via the refusal to enforce certified judgments, even in spite of a clear judgment by the ECJ requiring them to do so (Beaumont et al 2016).…”

“…Section six looks at the main changes brought forward by Council Regulation (EU) 2019/1111 (2019) (hereinafter, the "recast Regulation"). Indeed, the system brought forward by Brussels IIa triggered the rebellion of the courts of the Member State of refuge, and their discontent was manifested through the refusal to enforce certified judgments, even in spite of clear judgments by the ECJ requiring them to do so (Beaumont et al 2016). This ultimately pushed to EU legislature to revise the rules underpinning EU return proceedings, in a way in which the responsibilities between the courts of the Member state where the child was habitually resident immediately before the abduction and those of refuge, are more balanced.…”

Domestic violence and child participation: contemporary challenges for the 1980 hague child abduction convention

“…Turning now to child participation issues in the context of the 1980 Convention, the need for further evidence-based research on ascertaining children's views, which was recognised in the 2017 Experts' Meeting, has long been desired by those working on international child abduction issues (Beaumont et al 2016). In part, this was driven by the child's objection exception in Article 13 of the Convention which states that:…”