In The Name Of The Best Interests Of The Child:The Principle Of Mutual Trust In Child Abduction Cases

Abstract

All abducted children across the EU should sleep tight tonight. The ECJ will make sure that they are returned in a timely fashion to the place where they were habitually resident immediately before their unlawful removal or retention so they will be able to resume their daily life and restore a personal relationship and direct contact with the left-behind parent. Despite such a comforting scenario, this Article argues that the current blind application of the principle of mutual trust in the EU mechanism for the return of the child does not ensure an adequate protection of the best interests of children entangled in return proceedings.

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

“…As previously argued (Bartolini 2019), in order to avoid a breach of Article 24 § 3 of the Charter, the ECJ has constantly deployed the urgent preliminary ruling procedure (hereinafter, the "PPU"). Pursuant to Article 107 § a of its Rules of Procedure, the PPU has been used in order to ensure an effective and quick treatment of the preliminary requests by the referring court(s) pursuant Article 267 TFEU concerning EU cross-border child abduction, with the minimum of delay.…”

“…Against this background, the ECJ has been inflexible: the national courts of the Member State in which the child was habitually resident immediately before the abduction are the best placed to protect the best interests of the child, thereby the national courts of the Member State of refuge must trust that those courts have issued a certified judgment only after having carefully assessed how the child's rights and interests will be affected by their decision, and verified that the return is really in their best interests, in compliance with Article 24 § 2 of the Charter (Bartolini 2019). Therefore, the courts of the Member State of refuge must enforce that certified judgment without any fuss.…”

“…Consequently, it is argued that the ECJ should provide to the courts of the Member State of refuge the space to rebut, under exceptional circumstances, the principles of mutual trust and mutual recognition (Bartolini 2019).…”

“…For the past seventeen years, EU cross-border child abduction has been regulated by Council Regulation (EC) No 2201No /2003 (hereinafter, "Brussels IIa" or the "Regulation"). This Regulation preserves the Convention on the Civil Aspects of International Child Abduction (1980) (hereinafter, the "1980 Hague Convention") and simultaneously complements it with more stringent and directly applicable EU rules (Recital 17 of the Regulation) which seek to ensure that the national courts of the Member State in which the child was habitually resident immediately before the abduction, retain the jurisdiction, and the power to decide, over a return application (McEleavy 2015. In this perspective, the national courts of the Member State of refuge are required to play the role of "facilitators" (Bartolini 2019), ready to enforce, in every single instance, a certified judgment requiring the immediate return of the child to Member State where they were habitually resident immediately before the abduction. No exceptions allowed (Article 42 of the Regulation).…”

“…In an attempt to ensure the effectiveness of the EU return proceedings, the ECJ has asked the national courts of Member State of refuge to blindly rely on the principle of mutual trust and automatically enforce a certified judgment, even in situations where there is a real risk that the courts of the Member State where the child was habitually resident immediately before the abduction, have issued that certified judgment without respecting the EU rights of the child as enshrined in Article 24 of the Charter (Bartolini 2019).…”