European Justice Ministers have been invited to debate at their next meeting on 7 December next, the scrapping of the exequatur procedure for all cases of parental responsibility. According to a document consulted by EUROPE on Friday 10 November, the Estonian Presidency of the Council of the EU has called on the member states to reach an agreement on some of the key principles in the model for removing this procedure, in view of this forthcoming debate.
The Brussels II b regulation entered into force in 2005 and removes the necessity of the exequatur procedure for certain legal decisions in the context of parental conflicts, particularly those relating to the return of a child in the event of parental abduction.
In June 2016, the European Commission proposed a recasting of this regulation in order to remove the final remaining barriers to the free movement of legal decisions, in compliance with the principle of mutual recognition and in an effort to better protect the overriding interests of children, by simplifying the procedures and making them more effective (see EUROPE 11584).
The Commission is proposing to extend the scrapping of the exequatur to all cases relating to parental responsibility, in an attempt to promote more rapid decision-making. Therefore, a decision pertaining to parental responsibility implemented in the member state of origin should be directly implemented in the member state of implementation without it necessarily requiring a exequatur decision. The removal of this requirement is expected to be accompanied by procedural guarantees ensuring appropriate protection of the right of the defendant to an effective appeal, as well as the right to an impartial court.
According to the document, the member states share the Commission’s objective of extending the abolition of this procedure for all decisions relating to parental responsibility, albeit with appropriate guarantees. The document points out, however, that they remain concerned by certain aspects of this model for removing the exequatur stipulation.
According to the Presidency, the fact that the proposal does not contain a “contingency plan” for the decisions that do not fulfil the required conditions for awarding a certificate (replacing the exequatur procedure) makes enforcement and the movement of the decisions more difficult than with the current system.
Some member states are also of the opinion that certain decisions on visiting and return rights should maintain “privileged” status allocated to them by the Brussels II b regulation, explains the document. In this regard, the Presidency is proposing a compromise combining the existing procedure of special rules for these rights with the general procedure in the Brussels I regulation (recasting) stipulating that the reasons for non-recognition and non-implementation can continue to be invoked by the enforcing member state.
The Presidency is also calling on the member states to agree on extending the scope of the procedure’s application to all return orders in the 1980 Hague Convention, which relates to international cooperation on child abduction.
These decisions ordering the return of a child are not currently covered by any exequatur models contained within the Brussels II b regulation because the system for recognition and implementation of the current regulation is limited to decisions relating intra-EU parental responsibility, explains the document. (Original version in French by Marion Fontana)