Three important international instruments
There are three provisions
that have been put in place for the protection and safe return of
abducted children that apply internationally:
-
The Hague
Convention
-
Brussels P Regulations
-
European Convention
This article examines The
Brussels P Regulations and The European Convention:
Brussels P Regulations
- This regulation came into force March 1st
2005 and applies between all EU member states except Denmark.
- The Brussels Regulations takes precedence
over the European Convention and in a situation regarding child
abduction between member states, this is the regulations that
should be applied first.
- The Brussels regulations are broader that
the Hague Convention and you need either a court order such as a
section 8 order for the UK, or a legal document showing previous
legal dealings in respect of the child.
- As the Brussels P Regulations are
regulations they are automatically binding on all member states
that are signed up to the European Union.
- The Brussels regulations preserves the
Hague convention in relation to dealing with application
internationally but instructs the Hague convention on how it
should be applied in situations regarding member states of the
EU.
Relevance to Abduction cases
- Art 11- Regulates how courts should
operate in return applications made under the Hague convention
and what should happen if the return of a child is refused
- Art 10 - Provides rules in cases of
wrongful removal or retention
- This provides that the courts of the
child’s habitual residence retains
authority until the child acquires a new place to live in
another member state, AND where there is a new place of living
either;
- Each person, or body with rights of
custody has consented to the removal or retention or the child
has lived in the new member state for at least a year since the
person with custody has found out about the child’s
location and the child is settled in their new environment and
either no request has been made for the child’s
return or the case has been closed or the return has been
rejected.
Recognition and Enforcement under Brussels P
Regulations
Any orders that are made relating to
parental responsibility in
the member state where the child originally lives are enforceable
and automatically recognised throughout all the contracting member
states of the European Union without the need to make special
measures.
Regarding the enforcement of orders, there is
generally the need for a declaration of enforceability , which in
the UK means that you have to register the judgment made in relation
to the order you wish to enforce.
Access orders and orders made for a child’s
return created through the
Hague Convention
are automatically enforceable without the need for a declaration of
enforceability so long as a certificate of enforceability was issued
with the originally order.
European Convention
This convention is controlled by:
- The European Convention and Recognition
and Enforcement of Custody of Children and on Restoration of
Custody of Children 1980
- and applies to
cases where there is ‘improper removal’
of children across international frontiers.
Decisions made under the convention in
relation to custody of a child that are enforceable in one
contracting state are recognised and enforceable in every other
contracting state of the European Union.
The Refusal to enforce an order
The grounds for refusing to enforce an order
are found in Art 9 and 10 of the convention and are as follows:
- There are narrow grounds for refusal
based on defects in the procedures taken
- The court must ascertain the child in
questions views prior to making a refusal to enforce a
particular order, unless it is impractical due to the child’s
age, understanding and maturity to rely on their views.
Order in which the international instruments
shall be used
- The first point of call to use is the
Brussels P Regulations, if this does not apply, for instance the
country in which the child has been wrongfully removed to is not
a contracting EU member state then the next point of call is the
Hague Convention.
- As the Hague convention is an
international instrument including the majority of EU members
states as well as many other international countries, the Hague
convention will more than likely apply if the Brussels P
Regulations fail for some reason.
- The European Convention will be a last
resort attempt if the Brussels P Regulations and the Hague
Convention fails in aiding the safe return of an abducted child
to another country.
Non-Convention Countries
- Countries that have not signed up to the
convention can start civil proceedings in the country of which
the child has been wrongfully removed/ improperly taken to or
try to have their child’s abducted
extradited.
- In relation to children brought to
England and Wales from a non-convention state, court proceedings
and legal processes will usually be in wardship, or under a
Section 8 order of the Children’s Act
1989.
Section 8 orders
Orders made under section 8 of the Children’s
Act 1989 include:
- Residence order
- Contact order
- Specific issue order
- Prohibited Steps order
