Tales of the Unexpected

This blog post by Jayne Hollidaydiscusses findings from the recently completed research project on the ‘Conflicts of EU Courts on Child Abduction’ conducted by the Centre for Private International Law in collaboration with the University of Sussex and funded by the Nuffield Foundation.

‘Children should be seen and not heard’ is not the most enlightened proverb and is one that really ought not to be prevalent in modern judicial proceedings within the European Union in cases that affect children. Yet ‘children not being heard’ is precisely what is happening at the moment in intra-EU parental child abduction cases.

What do I mean by parental child abduction cases? When people hear the phrase child abduction they often confuse it with trafficking or kidnapping but in these cases it is where a parent takes their child to another country to live without the permission of the other parent who also has custody rights. Many parents are unaware that to travel out of the country with their child they need the (usually written) consent of the other parent.

Child abduction of this type is by no means a small problem. In 2014, Reunite, a charity that provides support for people involved in these cases, stated that there were over 500 cases involving the UK alone, with the most frequent destinations being France, India, Ireland, Poland, Pakistan, Spain and the USA.

So what can a parent do if their child is abducted in this way? When a parent believes that their child has been abducted by the other parent to another country to live they are able to apply to the court to ask for the child to be returned under the 1980 Hague Child Abduction Convention. Under the Convention, the parents can also expect help with the process of solving the child abduction from the Central Authorities in the relevant countries.

So far 94 countries or Contracting States have signed up to this Convention and as it only operates between these Contracting States it is necessary to check to see if the relevant countries are party to the Convention and whether it applies between them. For further information click here.

If the 1980 Hague Convention applies (as it does in all cases between EU Member States) and the application for the return of the child is successful then the courts in the country where the child has been abducted to will decide whether or not to return the child. The process is supposed to happen quickly. Usually this works fairly well. The child and parent come back to the child’s habitual residence before the abduction and issues surrounding custody are dealt with there, working on the principle that those courts are best placed to deal with it.

Sometimes the courts in the country where the child has been abducted to decide not to return the child under Article 13 of the 1980 Hague Child Abduction Convention. Article 13 contains the exceptions to returning the child: the left behind parent consented or acquiesced to it, the child would be at grave risk of harm or otherwise placed in an intolerable situation if they were made to return or the child themselves objects to being returned and is old and mature enough for those views to prevail.

In the EU where a court in a Member State has said no to returning the child under Article 13 of the 1980 Hague Child Abduction Convention, the left behind parent uniquely has one more chance to ask for the return of the child. The Brussels IIa Regulation, which deals with parental responsibility and matrimonial matters, contains what on paper looks like a trump card.

Article 11(8) of that Regulation allows the courts in the country of the habitual residence of the child before the abduction to consider what is in the child’s best interests and if they disagree with the non-return order they themselves can issue an order to return the child. For that return order to be enforceable it needs to be accompanied by an Article 42 Brussels IIa Regulation certificate. This is to certify that the child has been given an opportunity to be heard in order to see whether they object to being returned, that both parents have been given an opportunity to be heard, that the court has taken account of the reasons for the non-return, and where applicable, measures to ensure the protection of the child on their return have been put in place.

Professor Paul Beaumont and I (from the Centre for Private International Law at the University of Aberdeen) and Dr Lara Walker (from the University of Sussex), as part of a research project, gathered case law from every Member State within the EU where a left behind parent had initiated these Article 11(6)-(8) Brussels IIa Regulation proceedings. The aim of our research was to assess whether the courts were following the requirements needed to issue the Article 42 Brussels IIa certificate; one of those factors being whether the child had been given an opportunity to be heard, with their views being given due weight in accordance to their age and maturity.

This proved to be easier said than done, as many of these cases are unreported. After eighteen months of research – working with Central Authorities and volunteer researchers in every Member State, NGOs, judges and practitioners – a total of 66 intra-EU cases were collected and then analysed. All of these cases involved Article 11(8) Brussels IIa proceedings but not all the proceedings led to the decision to order the child’s return. However, out of these 66 cases, involving a total of 70 children, it turned out that only 14 children were heard by the courts usually through the Taking of Evidence Regulation.  

The question we then considered was why were these children not being heard? Could it be that the age of the children was a justifying reason?

The data proved to be concerning. We found that children as old as 15 had not been heard by the court even where the reason for not returning the child in the first place under the Hague proceedings had been due to their objection to being returned. Also, children under 12 were routinely not being heard in certain Member States. The national laws of some Member States require that all children are to be given the opportunity to be heard from the age of 12 even when it is commonly understood that children as young as 6 are routinely heard in some Member States in Hague cases, or even from 3 years of age as is the case in Germany. The original reason for the child being 12 years of age is that certain Member States held the view that they needed to protect the child from conflict and they could do this by keeping them away from the courts. However, this approach does not fit easily with the right of the child to be heard. The right of the child to be heard during civil proceedings that affect them is a requirement under international law within Article 12(2) of the United Nations Convention on the Rights of the Child and at EU level within Article 24(1) of the Charter of Fundamental Rights of the European Union, and is theoretically protected within these cases by it being a requirement of the Article 42 certificate before a return order can be enforced. But with only 20% of the children in these cases being heard, it is clear that the courts are failing to protect this right .

Additional reasons for the courts not hearing these children were also identified. In addition to the abducting parent in some cases obstructing the child’s opportunity to be heard, a lack of technology was put forward as a reason in many Member States. Not every Member State has arranged for video conferencing facilities to be available to the courts or if they have there is inadequate access. In an age where everyone with a mobile phone is used to having the ability to communicate easily and inexpensively with someone in another country it seems incredible that Member States have not yet put the infrastructure or the manpower in place to support the Taking of Evidence Regulation. But as with all things in life it comes down to a lack of money or in some cases a lack of prioritising the protection of the most vulnerable parties.

Not everything turned out to be doom and gloom. The sheer number of children not heard in these cases was indeed unexpected but it was also encouraging to see that some Member States were working hard to implement change. Judges told us that they now receive training on how to hear the child, and/or they are able to bring experts in. Rooms are being set aside in court buildings that are considered to be a less imposing environment than the court room for a child to be heard in. It is clear that some Member States in the European Union are slowly making the changes needed to protect the rights of the child.

With the revision of the Brussels IIa Regulation imminent we were able to send our interim findings and recommendations to the EU Commission. We await the outcome of the review with interest.

A brief summary of our findings and all the EU country reports can be found on the Centre for Private International Law’s webpage.

For those of you who are interested in finding out more, our overall findings from the research will be published in “Conflicts of EU courts on child abduction: the reality of Article 11(6)-(8) Brussels IIa proceedings across the EU” (2016) 12 Journal of Private International Law (forthcoming).

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