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:
Brussels P Regulations
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.
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.
- 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