The Brussels IIb Regulation concerns parental responsibility, and of particular relevance for present purposes are the recognition and enforcement of judgments delivered in this field. The scope of parental responsibility includes rights of custody and rights of access; guardianship, curatorship and analogous institutions; the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child; the placement of a child in foster care or in institutional care; and measures for the protection, administration, conservation or disposal of a child’s property.
Chapter IV addresses the recognition and enforcement of judgments delivered in such matters, and its structure is based upon the distinction between a general regime, governed by Section 1, and a privileged regime applicable by reason of the subject matter of the judgment, governed by Section 2. A distinction is therefore drawn between general judgments in matters of parental responsibility and privileged judgments.
The Regulation is founded upon the principle of automatic recognition, subject only to exhaustively enumerated grounds for refusal of recognition, which must be invoked by an interested party. The Regulation abolishes the declaration of enforceability, since reliance is placed upon the certificate, which must already state whether the judgment is enforceable in the Member State of origin that issued it. Nevertheless, the Regulation maintains grounds for refusal of enforcement.
This is an essential issue to bear in mind in proceedings of this nature where the judicial decision is intended to produce cross-border effects. Article 21 provides that courts shall, in accordance with national law and procedure, give a child who is capable of forming his or her own views a genuine and effective opportunity to express those views freely, either directly or through a representative or an appropriate body; and the court shall give due weight to the child’s views in accordance with the child’s age and maturity. Case C-491/10 PPU (Judgment of the Court of Justice of 22 December 2010, Aguirre Zarraga v Pelz) accepts that the hearing of the child need not necessarily take place personally and directly before the judge, since other means may be used to ensure that the child’s wishes are taken into account, provided that the national procedural particularities governing such hearings are respected.
In Spain, Organic Law 8/2015 of 22 July on the Protection of Children and Adolescents specifically establishes the need to hear the child in proceedings concerning the international abduction of children. The European Court of Human Rights condemned Spain in its judgment of 11 October 2016, Iglesias Casarrubios and Cantalapiedra Iglesias v. Spain, for violating Article 6 of the European Convention on Human Rights because the judge failed, without any reasoning, to hear personally a child over twelve years of age.
The enforcement of both general and privileged judgments requires the submission before the court of the Member State of enforcement of an authentic copy of the judgment (in Spain, an official certified copy) together with the certificate issued through the corresponding form contained in the Annexes to the Regulation. The distinction between general and privileged judgments is determined by subject matter, such that only those judgments referred to in Article 42(1) qualify as privileged judgments.
In order to guarantee both recognition and enforcement, particular care must be taken in situations involving default of appearance by the defendant party, so as to avoid refusal of recognition and enforcement on the grounds that the party’s rights of defence were infringed. Likewise, one of the grounds for opposing recognition and enforcement is the existence of irreconcilable judgments, which may arise from proceedings instituted in different Member States.
For the purposes relevant here, Article 39 permits opposition to the recognition of “general” judgments where a judgment concerning parental responsibility was given without a child capable of forming his or her own views having been given the opportunity to express those views in accordance with Article 21, except where:
A. The proceedings concerned only the property of the child and, having regard to the subject matter of the proceedings, no such opportunity was required to be given to the child.
B. There were serious grounds relating to the urgency of the case.
In this respect, it is important to note that the method chosen for hearing the child shall be determined by the court of the Member State of origin. Consequently, recognition may not be refused on the basis that the procedure followed in the Member State of origin did not comply with the methods applicable in the requested Member State.
Article 41 refers back to Article 39 in relation to the grounds for refusal of enforcement of “general” judgments in matters of parental responsibility.
Such judgments shall be recognised automatically without any special procedure and without any possibility of opposing recognition, unless the judgment is irreconcilable with a subsequent judgment. For recognition, it is only necessary to produce an authentic copy of the judgment together with the certificate issued pursuant to Article 47, using Annexes IV and VI.
Recognition proceedings may be stayed where proceedings have been brought before a court on the grounds that the judgment is irreconcilable with a subsequent judgment, or where annulment of the certificates has been sought.
In contrast to “general” judgments, Section 2 of Chapter IV governs “privileged” judgments and their regime of recognition and enforcement.
Privileged judgments are those referred to in Article 42(1) and certified in accordance with Article 47, upon application by an interested party. In the case of judgments concerning rights of access or involving the return of a child, the certificate must expressly state that certain procedural safeguards have been complied with. In such judgments, it is mandatory to state that the child has been heard and, if not, the reasons why the hearing could not take place. In the absence of such information, the judgment cannot be enforced as a privileged judgment.
Where judgments involve the return of children, the practical issue naturally arises as to how the child may be heard if he or she is located in another Member State. The answer is that the EU instruments on the taking of evidence may be used, including videoconferencing or any other suitable measure. Indeed, it is recommended that the judges of the States concerned communicate directly with one another where they share a common language.
The importance of privileged judgments lies in the fact that the certificate set out in Annex IV for rights of access, or Annex VI for the return of the child, shall not be issued unless the child has been heard in accordance with Article 21. Consequently, such a judgment cannot be enforced in another Member State as a privileged judgment unless it is instead enforced under the regime applicable to “general” judgments.
Enforcement shall be refused where the measure is irreconcilable with a subsequent judgment concerning the same child.
Where enforcement is granted, it shall be carried out under the same conditions as if the judgment had been issued in the Member State of enforcement, as provided in Article 47(2). Case C-211/10, Povse, and Case C-4/14, Bohez, clarify the meaning of “under the same conditions”, requiring respect for the limits implicit in the terms of the judgment delivered by the court of origin. Accordingly, substantive objections intended to prevent enforcement may not be raised where such objections could only have been invoked before the court having jurisdiction as to the substance of the matter.
Finally, reference must be made to Article 54 concerning arrangements for the exercise of rights of access and the use of Annex V. This provision allows the authorities competent for enforcement to take measures organising the exercise of rights of access where the judgment of the court of origin failed to provide all necessary details. The purpose is to specify and make the judgment more precise, with regard to issues such as the designation of the place for handover, or the need to provide the child with special food or medication.
All of the foregoing applies equally to authentic instruments and agreements in matters of parental responsibility.
In conclusion, and having regard to the purpose of this presentation, extreme caution must be exercised regarding the opportunity afforded to the child to be heard in the Member State of origin by the court or competent authority issuing a judgment on parental responsibility intended to be enforced in another Member State. This applies equally to matters of custody, which would be enforced as general judgments, and to rights of access and communication. Hearing the child means employing any means capable of ensuring that the child’s views, commensurate with his or her maturity, have been ascertained, even where this takes place before a non-judicial authority, such as a Notary Public.
Arantza Cagigal Casquero
Attorney-at-Law and Managing Partner at Aranzazu Abogados
Adjunct Professor, Department of Private Law, University of Salamanca