Brexit and English Jurisdiction Agreements: A Look into the Post-Referendum Legal Landscape

This blog is by Dr. Mukarrum Ahmed from the University of Aberdeen’s Centre for Private International Law

The initial shock at the UK’s referendum vote must be replaced by a reasoned consideration of how best to respond in an uncertain situation. Will it really happen? When will it happen? Will the continuing EU play hardball in negotiations or will it seek to ensure that the UK becomes a good neighbour? What will the post-Brexit UK and EU look like? One decision for those entering into cross border commercial contracts in the post-referendum legal landscape is what to do about an English jurisdiction provision in the contract. The referendum result hasn’t itself changed anything legally, but it may be necessary to invoke these jurisdiction provisions of a contract in two or more years’ time, when the legal framework might be different.

Jurisdictional Principles

The jurisdiction of the English courts and the courts of other EU Member States in civil and commercial matters is currently governed by the Brussels I Regulation (Recast) or the Recast Regulation (EU Regulation 1215/2012). The Regulation provides that a choice of jurisdiction by the parties should be upheld and that judgments given by the courts of one Member State should be enforced in all other Member States. After Brexit, the Recast Regulation will in all probability cease to apply to the UK, which has led some lawyers in continuing EU Member States to promote the idea that commercial litigation that might have traditionally come to the English courts should instead be diverted to the other emerging European centres of international litigation. English lawyers are naturally perturbed by such a prospect. What the post-Brexit jurisdictional and enforcement landscape will look like is uncertain. Lawyers can debate enthusiastically whether judgments given in proceedings commenced before Brexit will continue to be enforceable after Brexit, whether the 1968 Brussels Convention will be restored, whether the pre-Brussels Convention bilateral treaties between the UK and individual Member States will revive, whether the UK has a right to adhere to the Lugano Convention or, if not, whether one or more of the existing Contracting States will block the UK’s doing so. Interesting though those debates will be, they do not reduce the uncertainty and offer scant help to those who must make a decision now.

The Starting Point on Jurisdiction

The first question is what the jurisdiction agreement in any particular contract is trying to achieve. If a fundamental objective of the jurisdiction clause is to provide a judgment that will be enforceable throughout the EU, then the uncertainties of the post-referendum world come into play (as illustrated in this earlier post by Dr. Jon Fitchen). There is a real risk that, with the departure of the Recast Regulation and the uncertainties over Lugano and other issues, an English judgment will not be readily enforceable in the continuing EU and vice versa. Possible responses where enforceability of a judgment in the continuing EU is an important factor are discussed below.

There are, however, many reasons for a choice of jurisdiction save for the enforceability of the resulting judgment within the continuing EU. For example, the party against whom enforcement is likely to be required may not have any accessible assets in the EU. Most obviously, the party might have assets in the UK or otherwise outside the EU, in which case the issues will be the same pre-Brexit as post-Brexit. In some instances, enforceability might not be a major issue. For instance, a party may have sufficient security against which to discharge its counterparty’s obligations within the jurisdiction. Or a party may conclude that it is more likely to be the sued rather than sue the counterparty. Or enforcement risk may simply not be a big factor for the particular counterparty. In these situations, a jurisdiction clause may fulfil a more defensive role of ensuring that the party can only be sued in a court in which it has confidence. If so, again the considerations may not have changed significantly as a result of the referendum vote. Post-Brexit, a jurisdiction clause in favour of the English courts may not require courts in EU Member States to defer to the English courts in quite the same way or for the same reasons as now, but the counter may be that, if so, the English courts will, contrary to the current position, be able to grant anti-suit injunctions to restrain a party from pursuing proceedings in an EU court. A party with any business, presence or assets in the UK cannot afford to ignore an injunction.

EU Enforceability: Solutions

If enforceability of a judgment throughout the continuing EU is important, there are four solutions in circumstances where, pre-referendum, jurisdiction would have been given to the English courts.

First, give jurisdiction to the courts of an EU Member State or a Lugano Convention Contracting State (Norway, Iceland and Switzerland). This depends upon being comfortable with proceedings in that court, including as to its procedures, costs, speed and outcomes. This is already sometimes done in, for example, security agreements where the security in question is located in another EU Member State.

Second, give non-exclusive jurisdiction to the English courts. This cautious approach hedges the parties’ choice of jurisdiction and allows the position to be reconsidered at the time when legal proceedings are commenced. If at that time enforcement remains important and an English judgment is enforceable in the EU, then the English courts can be used; if, however, an English judgment is not enforceable in the EU, it will allow the use of other courts. A variant of non-exclusive jurisdiction clauses is the asymmetric or unilateral jurisdiction agreement, which is commonly used in cross border finance contracts. This binds one party to sue exclusively in the primary non-exclusive forum, but allows the other party to commence proceedings in that court or in any other court of competent jurisdiction. The French Cour de cassation has cast some doubt on the validity of these clauses under Article 23 of the Brussels I Regulation in Mme X v Rothschild (26 September 2012) and Article 23 of the Lugano Convention in ICH v Credit Suisse (25 March 2015). However, the position has been somewhat ameliorated by the most recent Cour de cassation decision in Apple Sales International v eBizcuss (7 October 2015). Moreover, doubt as to a matter of EU law may be less significant if the UK is outside the EU because the English courts have traditionally enforced these clauses. It could, however, affect EU Member States’ courts’ approach to the jurisdiction clause, but that is in any event a matter of some uncertainty until finally resolved by the Court of Justice of the European Union.

Third, arbitration is a possibility. Arbitration is already commonly used if enforcement is important and the counterparty has assets in a location where an English judgment is not enforceable because of the extensive reach of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. All EU Member States are parties to the New York Convention, which provides for the enforcement in participating states of an arbitral award given in another participating state. An arbitration seated in a participating state, whether the UK, a continuing EU Member State or elsewhere, should therefore be able to give an award enforceable throughout the EU.

Fourth, parties could continue with whatever their current policy is. The massive uncertainties surrounding what Brexit will bring could be treated as meaning that the risks of change are as great as the risks of no change.

EU Enforceability: The Hague Convention on Choice of Court Agreements

There is another possible solution to the problem of enforceability of a judgment throughout the EU. This is to give the English courts exclusive jurisdiction. The potential benefits of this route arise because the EU is a party to the Hague Convention on Choice of Court Agreements. In addition to the EU, Mexico and most recently Singapore have signed and ratified the Convention, which is therefore currently of limited significance in global terms. The Convention does, however, provide that all Contracting States must give effect to exclusive jurisdiction agreements (Articles 5 and 6) and enforce the resulting judgment given by the chosen court (Article 8). The UK is not currently an individual Contracting State to the Convention because the Convention’s subject matter falls within the exclusive competence of the EU. There is divided academic opinion on the issue whether the UK is bound by this international treaty post-Brexit without any need for the UK to ratify the treaty afresh as it might be argued that the UK is only bound by the treaty while it is a Member State of the EU. Assuming the UK would not be bound, the UK would still be entitled to sign and ratify the Convention in order to bring it into force immediately on the UK’s leaving the EU or soon afterwards; the consent of the existing parties is not required. If the UK were to do so, a judgment given by an English court that has taken jurisdiction under an exclusive jurisdiction clause will again be enforceable throughout the EU. This position is not, however, without potential transitional wrinkles. Article 16 of the Convention states the Convention applies to exclusive jurisdiction agreements concluded after its entry into force for the state of the chosen court and that the Convention does not apply to proceedings instituted before its entry into force in the state of the court seised. The Convention has, however, already entered into force in the UK because of the EU’s ratification of the Convention.

Suppose that a contract contains an English exclusive jurisdiction clause but that, post-Brexit, a court in an EU Member State is seised of proceedings falling within the scope of that clause. What will the EU Member State’s court do, assuming that the Hague Convention on Choice of Court Agreements is not applicable?

Post-Brexit, so far as the continuing EU is concerned the English courts will (subject to any future contrary arrangements with the EU) be in the same position as any other courts outside the EU. The commercial expectation might be that the courts of EU Member States would give effect to the parties’ wishes, but it is not entirely clear that this will necessarily be the case. Article 33 of the Recast Regulation provides that courts in EU Member States may stay proceedings in favour of courts outside the EU if three conditions are met: first, the non-EU court was first seised; secondly, the non-EU court can give a judgment capable of enforcement in the EU Member State in question; and, thirdly, a stay is necessary for the proper administration of justice. If these three conditions are met, then the court in the EU Member State can stay, and might generally be expected to stay, proceedings in favour of the court outside the EU. But what if any of these conditions is not met (for example, because the court in the EU Member State was seised first)? It is arguable that, despite the fact that the agreement between the parties has been broken by one party starting proceedings in an EU Member State’s courts, the courts of EU Member States cannot stay their proceedings in favour of the non-EU court. Before Article 33 was added to the Recast Regulation, there was no explicit provision addressing the position of non-EU courts. There is evidence of some Member State court’s practice which gives effect to jurisdiction agreements in favour of non-EU courts under the guise of giving ‘reflexive effect’ to the Regulation’s provisions regarding jurisdiction clauses. However, as the Recast Regulation now specifically addresses the position of non-EU courts, the convenient legal fiction of the doctrine of reflexive effect may be harder to justify in principle.

Ultimately, the Court of Justice of the European Union will have to determine the most appropriate approach in these circumstances. Even if the courts of an EU Member State consider that they have no power to stay proceedings in favour of the English courts despite an exclusive jurisdiction clause in favour of the English courts, the English courts may not be without a pragmatic remedy. Under the Recast Regulation, the English courts cannot grant an anti-suit injunction to restrain a party from pursuing proceedings in the courts of another EU Member State bought in breach of the jurisdiction agreement (Case C-159/02 Turner v Grovit [2004] ECR I-03565). However, if the UK is no longer an EU Member State, its mutual trust constraints will no longer apply and the English courts would again be free to grant, and would generally grant, anti-suit injunctions ordering parties to stop legal proceedings brought in breach of contract. Failure to obey an injunction would constitute contempt of court, which could lead to a fine, imprisonment and, ultimately, sequestration of assets. A party with any presence or assets in the UK would have to comply with the injunction or reconcile itself to the loss of those assets. If, contrary to the assumption made above, the Convention was applicable, the courts of an EU Member State that are seised of proceedings in breach of an exclusive jurisdiction agreement should defer to the English courts according to Article 6 of the Convention. Moreover, the Convention’s system of qualified mutual trust may also permit the use of anti-suit injunctions, the damages remedy for breach of exclusive jurisdiction agreements and anti-enforcement injunctions where such relief furthers the objective of the Convention.

 

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Brexit and EU private international law: cross-border judgments – unintended consequences

This blog post is by Dr. Jonathan Fitchen.

The UK’s vote for Brexit has thrown up a huge range of complex legal problems concerning the disengagement of the UK from the European Union. One such problem concerns the effect of Brexit on existing private international law, also known as ‘conflict of laws’,  in the UK. These are issues of particular interest and concern to the School of Law, especially those in the University of Aberdeen’s Centre for Private International Law. This interest is not simply an academic one, as our colleagues have at various times directly advised on and participated in the development of the law in this area.

Private international law (PIL) deals with questions that arise when a civil case between private parties also involves a foreign element. PIL provides the answers to basic legal questions arising from the foreign element including:

Can I bring my case before my local court (or not)?

If I can do so, what law should be applied to the dispute by that court?

If I win, can I get my judgment enforced abroad?

Does any earlier or competing foreign litigation affect or stop my case?

The EU has put in place many PIL Regulations to replace the different complex national answers to these basic questions with harmonised answers (in different Regulations) applying across all (or very nearly all) EU Member States. These PIL Regulations simplify the otherwise very complex interactions of different systems of PIL (each with different approaches to, and answers for, the questions noted above) and also simplify many of the complex legal issues arising in PIL that affect the lives of ordinary private individuals and businesses in Scotland, England and Wales and Northern Ireland.

Given our present dependency in the UK on EU PIL Regulations, the effect of a ‘clean-break’ Brexit on PIL in England and Wales, in Scotland and in Northern Ireland will be profound: the EU PIL Regulations that provide many aspects of what we in the UK presently understood to be ‘our’ private international law will cease to apply unless positive legislative action is taken by the Scottish Government (PIL is a devolved matter) and by the Westminster Government to off-set this eventuality post Brexit. This might sound technical (it is) and abstract (it isn’t) but the basic point as it concerns the cross-border enforcement of ‘UK’ judgments in the rest of the EU can be simply illustrated with a before and after example.

Example

FACTS – An English company sells goods to a German company. The contract calls for the German company to collect the goods from the factory in England with payment due within one week of collection: though this arrangement has worked well in the past, this time the English company is not paid by the due date. The English company goes to the English court and wins a judgment that obliges the German company to pay it the money due and also its costs. The problem is that the goods and the German company are both in Germany.

NOW – The English Company can quickly and cheaply automatically enforce the English judgment against the German company using the EU’s Brussels Ia Regulation (Regulation 1215/2012): there is no need to go to court in Germany to ask permission to enforce because the EU Regulation means that the incoming UK judgment has to be treated as if it is an enforceable German one. The EU’s Brussels Ia Regulation has streamlined the enforcement process by presuming that the foreign (English) judgment is valid (etc.) and by reducing to an absolute minimum any possibility of the German company challenging the enforcement of the UK judgment in Germany.

AFTER BREXIT – The EU’s Brussels Ia Regulation will no longer technically apply to the English claim, nor to the overseas enforcement of the English Judgment as far as the other 27 EU Member States are concerned. If nothing has been done by the Scottish and Westminster Governments to avoid this prior to Brexit, it will be necessary for the English company to hire German lawyers to ask the German court to decide that the English judgment is capable of being recognised as a foreign judgment by the non-Brussels Ia PIL rules of the German legal system and then, assuming that the English judgment is so recognised, that it is then capable of actual enforcement in Germany. No part of this procedure will be automatic and neither will there be any presumptions that the English judgment is valid. It may well be possible that the enforcement of the English judgment will be obstructed by the un-harmonised German PIL enforcement law. Though post Brexit the precise outcome and legal costs of this example will vary from one EU State to another it is plain that enforcing such a judgment from the UK without the possibility of having recourse to the benefits offered by the EU’s PIL Regulations will take longer and cost more than it does at present.

So what is to be done?  

There is no simple solution to the basic problem that many important areas of ‘our’ PIL in the UK are currently contained in EU Regulations that will, unless action is taken by the Scottish and Westminster Governments, seemingly cease to apply immediately the UK leaves the EU. The seriousness of the issue extends much further than the business dispute in the example above as different EU PIL Regulations presently govern matters as diverse as:

  • cross-border family law (including parental responsibility for children and the payment of maintenance);
  • cross-border civil claims and commercial claims;
  • cross-border insolvencies;
  • what law will be applicable to cross-border disputes over contracts or over tort / delict claims.

If these numerous EU Regulations are allowed to cease to apply at the end of the day before Brexit, we will find ourselves thrown back on domestic civil procedure rules that assume that the EU PIL Regulations still apply when in fact they do not do so: if the legislators do not act to prevent it, the delays, costs and legal problems associated with this uncomfortable reality will become plain whenever a UK judgment concerning a matter formerly governed by an EU PIL Regulation is presented for enforcement elsewhere in the EU.

Some glimmers of hope?

It may be that the legislators in the UK will consult on this matter and then act to minimise the PIL risks of Brexit for their citizens. The Brexit negotiations could – if the matter is placed high enough up on the agendas of each side and is pursued with sufficient determination by the UK – lead to the UK being able to retain the benefits of some of the existing EU PIL Regulations on some sort of a reciprocal basis by also allowing those in the 27 State version of the EU the possibility of using their EU PIL ‘rights’ within the post-Brexit UK.

The UK will replace some EU PIL with PIL derived from Hague PIL Conventions that the UK is already a party to and these Conventions will apply between the UK and the EU (apart from Denmark, in some cases). These Conventions cover child abduction, inter-country adoption, parental responsibility, access, maintenance for children and spouses and exclusive choice of court agreements in commercial cases. There is also the longer term possibility that the ongoing work on the planned global Hague Judgments Convention will succeed (it has already had its first Special Commission in June 2016) and deal with the problem of getting UK judgments recognised in EU States and indeed elsewhere in the world.

What next?

The Scottish Government, the Westminster Government and the representatives in Northern Ireland need to appreciate the nature of the looming private international law problems and to formulate effective strategies to protect their citizens and businesses from the impending uncertainty. The University of Aberdeen’s Centre for Private International Law is looking forward to contributing to that task.

Addendum

The Centre for Private International Law has just published a working paper entitled “Respecting Reverse Subsidiarity is an excellent strategy for the European Union at The Hague Conference on Private International Law: currently being well deployed in the Judgments Project“, by Professor Paul Beaumont. It also considers some implications of Brexit. The final version of that paper will be published in a Polish review: Europejski Przegląd Sądowy, 2016, issue 10 (which translates as “European Judicial Review”).

Inheritance law and the European Union: the impact of ‘authentic instruments’

This blog post is by Dr. Jonathan Fitchen.

Aunt Jemima died last week. She was 102. She lived in Belgium and was so very fond of you – now her only surviving relative – that you went to stay with her on many happy family holidays. Jemima always promised that you would be left her money and property by her Belgian will. You heard of Jemima’s death from her neighbour, Jacques, who you phoned to find out why Jemima was not answering her phone. When you travel to Belgium to Jemima’s funeral you also learn from Jacques that as well as her Belgian will, Jemima entered into various other arrangements via a type of document called an authentic instrument. There are three authentic instruments, one each from Bulgaria, Italy and Spain. You don’t know what an authentic instrument is, and nor do you know if such things can affect your entitlement to Aunt Jemima’s money and property under the Belgian will.

An expert team from the Law School of the University of Aberdeen (consisting of Professor Paul Beaumont, Dr. Jonathan Fitchen and Ms Jayne Holliday) has worked for the European Parliament to address some of these questions by producing a comparative survey of the law concerning a special type of legal document called an ‘authentic instrument’ that is used in 22 of the 28 EU Member States in matters concerning wills and succession (‘succession’ being the word lawyers tend to use for ‘inheritance’). (The six Member States that do not are the UK, Ireland, Denmark, Sweden, Finland and Cyprus.) The matter has become more important because of a law called the European Succession Regulation (Regulation 650/2012).

Authentic instruments are formal documents created by public officials, such as notaries, from some civil law legal systems. They provide strong evidence of any officially verified facts that they contain.

The Succession Regulation applies directly in every EU Member State (except in the UK, Ireland and Denmark – but it can still affect their citizens in situations such as that in the example above). It determines issues such as: what the testator can do in a will to choose a law for the will before his death; or what law and procedures apply after his death if his estate is spread across different legal systems.

The Succession Regulation was created to deal with the problems of uncertainty arising from very different laws of succession across the legal systems of the EU. The worry was that the estate of an EU citizen from one EU Member State who then lived and worked in (or retired to) another EU Member State might be very much complicated by a patchwork quilt of different succession laws that could ALL be applicable to this single estate. The legal complexity would entail delays and extra costs many of which would be paid by the estate.

An important provision of the new Regulation is Article 59. Article 59 obliges the authorities in one Member State to accept an authentic instrument from another EU Member State by giving that document the same or very similar evidence effects to those that it would produce in the Member State from which it originated. To comply with Article 59 it is necessary to know what the evidentiary effects of authentic instruments in each of the 22 EU Member States that allow their creation are. This is what our Study does (PDF). We have explained what the domestic evidence effects of authentic instrument are in matters of succession so that lawyers and courts in other countries can properly comply with Article 59 of the Succession Regulation.

What does this mean for your entitlement to Aunt Jemima’s money and property? Well, if the authentic instruments from Bulgaria, Italy and Spain fall within Article 59 of the Succession Regulation they will (in nearly all imaginable circumstances) produce the same evidential effects in Belgium (or any of the other relevant EU Member States) as they produced domestically (with these points being covered in our Study): you may not get all of Aunt Jemima’s money after all!

Further details of this (and other) work undertaken by the Centre for Private International Law can be found here. An earlier blog post by Jayne Holliday looking at another aspect of Private International Law’s relationship with the EU is available here.

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).