Britain continues to feel the weight of the Brexit countdown clock. However, this time, the signs are pointing strongly to the country crashing out of the European Union (EU) on 31 October 2019. The new Prime Minister, Boris Johnson has made it clear that Britain is leaving on that date, “no ifs or buts”. And given that any further negotiation on former Prime Minister, Theresa May’s Withdrawal Agreement (which took over two years to put together) seems unlikely to occur, no one can ignore the reality that no-deal is becoming a possible reality.
One area which may concern international families is the status of the law surrounding parental child abduction to an EU State following a no-deal Brexit.
Fortunately, in this particular area, much will change, but fundamentally, everything will remain the same.
Let us explain.
Brussels II bis will no longer apply
The main international convention covering parental child abduction is the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). The object of this Convention, which has been signed by 101 countries, is to expedite the return of a child who has been abducted from one signatory state and taken to another.
When deciding a Hague Convention case, the Court does not concern itself with the merits of any custody arrangements in place. Instead, it focuses on returning the child to his or her place of habitual residence.
Brussels II bis (Regulation (EC) 2201/2003) is concerned with the recognition and enforcement of matrimonial and parental responsibility judgments within all EU states, excluding Denmark. It is designed to make it easier to establish which member state has jurisdiction and make it easier for an order made in another member state to be recognised by all other adoptees of the law.
Brussels II bis does not replace the 1980 Convention in EU countries, but it provides for additional rules applicable to child abduction cases covered by the Hague Convention for courts in EU countries.
For example, Article 13 of the Hague Convention provides:
“the judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views”.
The parent objecting to the child’s return has the burden of proof to establish the reasons for the child’s objection to returning to their country of habitual residence. Under Brussels II bis, the Court has a duty to inquire as to why the child objects to returning. In addition, unless his or her age or maturity renders it inappropriate, the Court is obliged under Brussels II bis to let the child speak on their own behalf.
Another difference between the two Conventions is that the Hague Convention, Article 11 requires the Court to “act expeditiously in proceedings for the return of children”.
It goes on to state:
“If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay.”
Brussels II bis is more forceful, stating that decisions must be made within six weeks unless “exceptional circumstances make this impossible.”
In a letter dated 19 March 2019, the Secretary of State for Exiting the European Union told the Children’s Commissioner
“In international parental child abduction cases, our participation in the 1980 Hague Abduction Convention means that most of the measures we currently operate with EU countries will not change. However, in a ‘no deal’ scenario, we would repeal the child abduction override provisions in Brussels IIa. These rules, which in certain circumstances allow an order from a court of an EU Member State to override the order made by the court of another Member State not to return a child, are based on reciprocity and would no longer operate effectively if the UK left the EU without a deal.”
What does this mean for parents?
If the UK leaves the EU without a deal on 31 October 2019, Brussels II bis cannot apply to any pending or future cases involving a child taken to the UK or a UK child abducted to an EU member state. Instead, the Hague Convention must be relied on. Thankfully, this means that although there will be certain procedural changes, the underlying principles of Brussels II bis remain in place through the Hague Convention.
We understand how stressful a parental child abduction is and have advised and represented many people involved in these types of cases. If you have any questions on this matter, please contact our office on 01271 314 904 to speak to one of our team.