On Wednesday evening, 28 November, the Member States' ambassadors to the EU (Coreper) discussed the proposed Brussels IIa Recast Regulation on judgements in matrimonial matters, parental responsibility and international child abduction (see EUROPE 11584).
The Austrian Presidency of the Council of the European Union had already announced that it is aiming for agreement to be reached on this wide-ranging reform, for which unanimous agreement in the Council is required, by the end of the year (see EUROPE 12091).
On Wednesday, at the Coreper meeting, only Germany reportedly indicated that it was not in a position to support the compromise, according to a European source. The Presidency had, however, decided to submit the text to Ministers without further amendments, with a view to obtaining an overall approach at the Justice Council on 7 December.
Abolition of exequatur. The compromise text in question, dated 26 November and copied to EUROPE, incorporates the agreement reached in December 2017 to abolish the exequatur procedure for all decisions on parental responsibility (see EUROPE 11923), subject to the introduction of appropriate safeguards.
It should be recalled that abolition of this procedure will allow a judgement that is enforceable in the Member State of origin to be directly enforceable in the Member State of enforcement without the need for a declaration of enforceability.
According to the text, the grounds that may be invoked against the recognition or enforcement of the decision should particularly include the absence of proper notification in the event of failure to appear, the impossibility for holders of parental responsibility or the child to be heard, or failure to comply with the consultation procedure on cross-border placements.
In June 2018, however, Member States were finding it difficult to agree on how to successfully abolish exequatur (see EUROPE 12033).
The Austrian Presidency continues to press ahead with its dual approach, whereby the new rules should specify that, in principle, all decisions on parental responsibility fall within a general system of recognition and enforcement, while some decisions remain "privileged" under special rules, particularly decisions pertaining to access rights and certain decisions involving the return of a child.
A legally binding certificate would accompany these "privileged” decisions, which could then be rectified or withdrawn in the Member State of origin where they were incorrectly granted.
The hearing of the child. The Council text also introduces a specific provision establishing the obligation to give a child who is capable of forming his or her own views a real and effective opportunity to be heard in a cross-border case. It does, however, leave it up to the Member States to determine how the child is to be heard.
The text does nevertheless specify that this obligation is not absolute. Failure to give the child the opportunity to be heard will not result in the decision not being recognised or enforced if, for example, the purpose of the case does not require it, or if there are serious grounds for not hearing the child, particularly in urgent cases.
Placement of a child. In June, European ministers also supported the European Commission's proposal to require consent for all placements of the child in foster care or in an institution in another Member State, regardless of whether or not the intervention by a public authority is required in that Member State for national child placement cases (see EUROPE 12033).
But the text proposes further clarification on the scope of the procedure for cross-border placements. It includes placement as an educational measure following deviant behaviour by the child in this procedure. Placements with close relatives should not, however, be subject to the procedure.
Child abduction. The text also provides for different time limits for courts to deal with child abduction cases within the EU as quickly as possible. It also emphasises alternative dispute resolution methods.
The compromise package also provides for the harmonisation of certain rules on the suspension or refusal to enforce a decision and clearer rules on the movement of authentic acts and extra-judicial agreements. (Original version in French by Marion Fontana)