COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsability, and on international child abduction (recast)
Date: 2016-06-30
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: child protection, enforcement of ruling, illegal restraint, judicial cooperation, judicial cooperation in civil matters in the EU, jurisdiction, matrimonial law, mutual recognition principle, parental responsibility

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 30.6.2016  SWD(2016) 207 final   COMMISSION STAFF WORKING DOCUMENT  IMPACT ASSESSMENT  Accompanying the document Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsability, and on international child abduction (recast) {COM(2016) 411 final} {SWD(2016) 208 final}  
 
 
COMMISSION STAFF WORKING DOCUMENT 

IMPACT ASSESSMENT 

Accompanying the document 

Proposal for a Council Regulation 

on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the 
matters of parental responsability, and on international child abduction (recast) 

TABLE OF CONTENTS 

I. 

1. 

2. 

3. 

4. 

5. 

6. 

INTRODUCTION ........................................................................................................ 5 

BACKGROUND ...................................................................................................................... 5 

2.1. 
2.2. 

THE INTERPLAY WITH OTHER FAMILY LAW INSTRUMENTS .................................................... 5 
Parental responsibility matters ..................................................................................................... 6 
Matrimonial matters ..................................................................................................................... 7 

LEGAL AND POLITICAL MANDATE .......................................................................................... 8 

REFIT .................................................................................................................................... 9 

AVAILABLE DATA ................................................................................................................ 11 

METHODOLOGY.................................................................................................................. 11 

II.  

1. 

1.1. 
1.2. 
1.3. 
1.4. 
1.5. 
1.6. 

1.6.1. 
1.6.2. 

MATRIMONIAL MATTERS .................................................................................... 12 

PARTY AUTONOMY AND "RUSH TO COURT" IN MATRIMONIAL MATTERS ........................... 12 
Problem definition ...................................................................................................................... 12 
Scale of the problem ................................................................................................................... 14 
Subsidiarity .................................................................................................................................. 14 
Objectives .................................................................................................................................... 15 
Description of Policy Options ...................................................................................................... 15 
Analysis of impact of Policy Options ........................................................................................... 16 
Option 1: Baseline scenario ......................................................................................................... 16 
Option 2: Introduction of a possibility for the spouses to choose the competent court in a Member State 
with which they have a close link ................................................................................................ 17 

2 

 
 
 
 
  
  
  
 
 
1.6.3. 

1.6.4. 

2. 

1.7. 

2.1. 
2.2. 
2.3. 
2.4. 
2.5. 
2.6. 

2.6.1. 
2.6.2. 

2.6.4. 

2.7 

III. 

3. 

3.1. 
3.2. 
3.3. 
3.4. 
3.5. 
3.6. 

3.6.1. 
3.6.2. 

3.6.3.  

3.6.4. 

3.6.5.  

3.7 

4.  

4.1. 
4.2. 
4.3. 
4.4. 
4.5. 

4.5.1. 

Option 3: Introduction of a possibility for the spouses to choose the competent court in a Member State 
with which they have a close link combined with a possibility for the court to transfer jurisdiction to the 
courts of another Member State ................................................................................................. 18 
Option 4: Introduction of a possibility for the spouses to choose the competent court in a Member State 
with which they have a close link combined with a hierarchy of grounds of jurisdiction ........... 19 
Comparing the Options and preferred Policy Option ................................................................. 20 

THE OPERATION OF THE REGULATION IN THE INTERNATIONAL LEGAL ORDER ..................... 23 
Problem definition ...................................................................................................................... 23 
Scale of the problem ................................................................................................................... 24 
Subsidiarity .................................................................................................................................. 24 
Objectives .................................................................................................................................... 25 
Description of Policy Options ...................................................................................................... 25 
Analysis of impact of Policy Options ........................................................................................... 26 
Option 1: Baseline scenario ......................................................................................................... 26 
Option 2: Creation of a uniform and autonomous rule on forum necessitatis for spouses not having a 
common EU nationality and living in a third State, combined with the deletion of the reference to residual 
jurisdiction under national law, and introduction of a discretionary lis pendens rule vis-à-vis third countries
 .................................................................................................................................................... 26 
Option 4: No harmonisation of residual jurisdiction but deletion of Article 6 which protects a defendant 
having an EU nationality or domicile from being sued in another Member State under residual jurisdiction 
rules of national law and introduction of a discretionary lis pendens rule vis-à-vis third countries29 
Comparing the Options and preferred Policy Option ................................................................. 30 

PARENTAL RESPONSIBILITY .............................................................................. 33 

THE RETURN PROCEDURE IN CASES OF PARENTAL CHILD ABDUCTION ................................. 33 
Problem definition ...................................................................................................................... 33 
Scale of the problem ................................................................................................................... 38 
Subsidiarity .................................................................................................................................. 38 
Objectives .................................................................................................................................... 38 
Description of Policy Options ...................................................................................................... 39 
Analysis of impacts of retained Policy Options ........................................................................... 40 
Option 1: Baseline scenario ......................................................................................................... 40 
Option 2: Codification of the current interpretation based on available guidelines and the CJEU case law
 .................................................................................................................................................... 41 
Option 3: Introduction of measures increasing efficiency and improving the functioning of the "overriding 
mechanism" ................................................................................................................................ 41 
Option 4: Revoking the current system by deleting the overriding mechanism and thereby returning to the 
1980 Hague Convention system .................................................................................................. 44 
Option 5: Revoking the current system of Article 11 by concentrating the jurisdiction for return proceedings 
in the Member State of origin and enforcing the return order in the Member State of refuge .. 44 
Comparing the Options and preferred Policy Option ................................................................. 45 

PLACEMENT OF THE CHILD IN ANOTHER MEMBER STATE .................................................... 47 
Problem definition and scale of the problem ............................................................................. 47 
Subsidiarity .................................................................................................................................. 50 
Objectives .................................................................................................................................... 50 
Description of Policy Options ...................................................................................................... 50 
Analysis of impact of Policy Options ........................................................................................... 51 
Option 1: Baseline scenario ......................................................................................................... 51 

3 

 
 
4.5.2. 

4.5.3. 

4.6. 

5.  

5.1. 
5.2. 
5.3. 
5.4. 
5.5. 

5.5.1. 
5.5.2. 

5.5.3. 

5.5.4. 

5.5.5. 

6. 

5.6. 

6.1. 
6.2. 
6.3. 
6.4. 
6.5. 
6.6. 

6.6.1.  
6.6.2. 
6.6.3. 

6.7. 

IV. 

7. 

7.1. 
7.2. 
7.3.  
7.4.  

8.  

9. 

10. 

Option 2: Creation of an autonomous consent procedure to be applied to all cross-border placements, 
51 
flanked by a time limit of eight weeks for the requested Member State to respond to the request 
Option 3: Creation of an autonomous consent procedure to be applied to all cross-border placements 
flanked by a period for the requested Member State to object and harmonised grounds for refusal  53 
Comparing the Options and preferred Policy Option ................................................................. 53 

RECOGNITION AND ENFORCEMENT OF JUDGMENTS ........................................................... 54 
Problem definition ...................................................................................................................... 54 
Subsidiarity .................................................................................................................................. 59 
Objectives .................................................................................................................................... 60 
Description of Policy Options ...................................................................................................... 60 
Analysis of impact of Policy Options ........................................................................................... 62 
Option 1: Baseline scenario ......................................................................................................... 62 
Option 2: Extension of the current system for access judgments (abolition of exequatur plus certificate on 
enforceability and respect of procedural standards) to all types of judgments on parental responsibility 
matters ........................................................................................................................................ 62 
Option 3: Abolition of exequatur with appropriate safeguards to be invoked at the stage of enforcement
 .................................................................................................................................................... 63 
Option 4: Option 3 plus introduction of targeted measures to improve the efficiency of actual enforcement
 .................................................................................................................................................... 67 
Option 5: Option 3 plus introduction of a uniform enforcement procedure ............................... 67 
Comparing the Options and preferred Policy Option ................................................................. 68 

COOPERATION BETWEEN NATIONAL AUTHORITIES ............................................................. 70 
Problem definition ...................................................................................................................... 70 
Scale of the problem ................................................................................................................... 73 
Subsidiarity .................................................................................................................................. 73 
Objectives .................................................................................................................................... 73 
Description of Policy Options ...................................................................................................... 73 
Analysis of impact of Policy Options ........................................................................................... 74 
Option 1: Baseline scenario ......................................................................................................... 74 
Option 2: Clarification of the Central Authorities' and other requested authorities’ tasks ......... 75 
Option 3: Clarification of the Central Authorities' and other requested authorities’ tasks plus addition of an 
article on adequate resources ..................................................................................................... 75 
Comparing the Options and preferred Policy Option ................................................................. 76 

CONCLUSION ............................................................................................................ 77 

OVERALL EVALUATION OF IMPACT OF PREFERRED POLICY OPTIONS ................................... 77 
Summary of the preferred Policy Options .................................................................................. 77 
The preferred options' effectiveness to achieve the policy objectives ....................................... 78 
Compliance costs ........................................................................................................................ 79 
Impact on fundamental rights..................................................................................................... 80 

PROPORTIONALITY OF EU ACTION ...................................................................................... 80 

LEGAL BASIS ....................................................................................................................... 80 

MONITORING AND EVALUATION ........................................................................................ 81 

Annex 1 – Procedural information 
Annex 2 – Evaluation study of the Regulation 

4 

 
 
 
Annex 3 – Stakeholder consultation 
Annex 4 – Who is affected by the initiative and how? 
Annex 5 – Glossary 
Annex 6 – Choice of court in other EU family law instruments 
Annex 7 – Number of appeals in return proceedings 
Annex 8 – Delays in obtaining exequatur in the Member States 
Annex 9 – Examples of cooperation between the national authorities 
Annex 10 – Overview of human resources at Central Authorities 
Annex 11 – Summary of the general, specific and operational objectives 
Annex 12 – Monitoring and evaluation

5 

 
 
I. 

Introduction 

BACKGROUND 

1. 
Regulation No 1347/2000 laying down rules on jurisdiction, recognition and enforcement of judgments 
on divorce, separation and marriage annulment as well as judgments on parental responsibility for the 
children of both spouses1 was the first Union instrument adopted in the area of judicial cooperation in 
family law matters. It was replaced by Regulation No 2201/20032 (commonly known as the Brussels IIa 
Regulation, hereafter "the Regulation"). The Regulation is the cornerstone of Union judicial cooperation 
in  matrimonial  matters  and  matters  of  parental  responsibility.  It  applies  since  1  March  2005  to  all 
Member States3 except Denmark4. Courts in all Member States have to apply it in all proceedings for 
divorce, separation or marriage annulment and in all proceedings on parental responsibility matters with 
a  cross-border  element.  The  term  “international  couple”  is  therefore  used  in  this  report  to  refer  to 
situations where spouses are habitually residing in different Member States, have different nationalities 
or  have  the common  nationality  of  one  Member  State,  but  are  habitually  residing  in  another  Member 
State. It is estimated that, on average, one in twelve couples in Europe is an "international couple". 

The  Regulation  establishes  uniform  jurisdiction  rules  for  divorce,  separation  and  the  annulment  of 
marriage5 as well as for disputes about parental responsibility with an international element. It facilitates 
the  free  circulation  of  judgments,  authentic  instruments  and agreements  in  the  Union  by  laying  down 
provisions on their recognition and enforcement in other Member States. 

2. 

THE INTERPLAY WITH OTHER FAMILY LAW INSTRUMENTS 

The  assessment  of  the  operation  of  the  Regulation  has  to  be  made  against  the  background  of  other 
instruments, in particular other EU Regulations in the area of family law and international instruments 
such as the 19806 and 19967 Hague Conventions. 

There are no direct overlaps in terms of scope of the Brussels IIa Regulation and other EU Regulations 
in  the  area  of  family  law.  However,  in  the  area  of  parental  responsibility,  the  carefully  negotiated 
interaction  between  the  Regulation  and  the  two  Hague  Conventions  of  1980  and  1996  needs  to  be 
preserved  while  in  the  area  of  matrimonial  matters,  an  indirect  link  with  some  other  EU  instruments 
needs to be taken into account. 

1 Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments 
in matrimonial matters and in matters of parental responsibility for children of both spouses, OJ L 160, 30.6.2000, p. 19. 
2  Council  Regulation  (EC)  No  2201/2003  concerning  jurisdiction  and  the  recognition  and  enforcement  of  judgments  in 
matrimonial  matters  and  the  matters  of  parental  responsibility,  repealing  Regulation  (EC)  No 1347/2000,  OJ  L  338, 
23.12.2003, p. 1, as amended by Council Regulation (EC) No 2116/2004 of 2 December 2004, OJ L 367, 14.12.2004, p. 1. 
3  To  those  Member  States  which  joined  the  Union  after  this  date,  the  Regulation  applies  from  the  beginning  of  their 
membership (Bulgaria and Romania: 1 January 2007, Croatia: 1 July 2013). 
4  Denmark,  in  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark  annexed  to  the  Treaty  on 
European  Union  and  the  Treaty  on  the  Functioning  of  the  European  Union,  does  not  participate  in  the  Regulation  and  is 
therefore neither bound by it nor subject to its application. For the purpose of this report (as for the Regulation; see Article 2 
No 3),  the  term  "Member  States"  does  not  include  Denmark.  As  the  outcome  of  the  referendum  held  in  Denmark  on 
3 December  2015  with  regard  to  Denmark's  future  participation  in  this  area  was  negative,  this  situation  will  remain 
unchanged for the time being. 
5 While the Regulation covers divorce, legal separation and annulment, in this report, for the sake of simplicity, reference is 
made only to "divorce". 
6 Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereafter "the 1980 Hague 
Convention"). 
7  Hague  Convention  of  19  October  1996  on  Jurisdiction,  Applicable  Law,  Recognition,  Enforcement  and  Co-operation  in 
Respect of Parental Responsibility and Measures for the Protection of Children (hereafter "the 1996 Hague Convention"). 

6 

 
 
 
                                                            
2.1.  Parental responsibility matters 

With respect to the parental responsibility matters (custody, access, child protection) the courts of the 
Member  States  are  bound  by  the  jurisdiction  rules  of  the  Regulation.  There  are  no  other  EU 
instruments  dealing  with  this  aspect.  Generally  speaking,  only  one  Member  State  at  a  time  has 
jurisdiction in order to avoid parallel proceedings and conflicting judgments. The jurisdiction rules are 
child-centred and based on proximity to the child (habitual residence as the main rule).8 

The aim of the 1980 Hague Convention is to protect the jurisdiction of the State of habitual residence 
of  the  child,  thereby  protecting  the  child  itself.  The  Contracting  States  to  the  1980  Convention, 
including  all  Member  States,  have  agreed  that  a  child  who  is  habitually  resident  in  one  Contracting 
State,  and  who  has  been  removed  to  or  retained  in  another  Contracting  State  in  violation  of  the  left-
behind  parent’s  rights  of  custody,  shall  be  promptly  returned  to  the  country  of  his/her  habitual 
residence. Within the European Union, the 1980 Hague Convention continues to apply as supplemented 
by  the  Regulation  which  aims  at  creating  even  more  ambitious  rules  fighting  and  deterring  child 
abduction by imposing stricter obligations to ensure the prompt return of a child. This report addresses 
the respective provisions of the return procedure as set out by the Regulation, while it leaves the rules of 
the Convention untouched. The Hague Conference on Private International Law under whose auspices 
the 1980 Hague Convention was negotiated, holds regular meetings of Contracting States (delegations 
including legislators, judges and Central Authority staff) to monitor the operation of the Convention. At 
the meetings in 2006 and 2011/12, in which also the Commission participated, a Swiss proposal for an 
amending protocol  was discussed but  the meeting adopted the conclusion that there was no sufficient 
support.9  It  was  perceived  that  the  Convention  in  general  worked  well  and  could  and  should  be 
enhanced by soft law and implementation measures at national and regional or supranational levels, as 
this was done, for instance, by the Brussels IIa Regulation. This was also the position of the EU and its 
Member States, as explained in 2011 in a letter to the Hague Conference which further stated that the 
carefully  balanced  consensus  among  the  Contracting  States  in  the  area  of  parental  child  abduction, 
which also forms the basis of the Brussels IIa Regulation, the key Union instrument in this area, should 
not be undermined.10 The present REFIT proposal pursues the same aim which is still valid. Moreover, 
its  aim  is  to  make  the  link  with  the  United  Nations  Convention  on  the  Rights  of  the  Child11  and  the 
European  Charter  of  Fundamental  Rights12  more  obvious  as  these  instruments  provide  binding 
guidelines for the implementation and application of the Regulation. 

Both  in  intra-EU  cases  and  cases  in  relation  to  third  States,  the  law  applicable  to  parental 
responsibility  matters  is  determined  by  the  1996  Hague  Convention.  As  there  is  only  one  set  of 
uniform conflict-of-laws rules on the law applicable to parental responsibility matters which works well 
at  EU  and  global levels,  this issue is  not  discussed  in  this  Impact  Assessment  as  there  is  no  need  for 
substantial changes. 

8 In relation to non-Member States which are parties to the 1996 Hague Convention which was ratified by all Member States, 
judges in EU Member States have to apply the jurisdiction rules of that Convention; they follow largely the same logic as the 
Regulation. In intra-EU cases the Regulation's jurisdiction rules take precedence over those of the 1996 Hague Convention. 
The Regulation applies: (i) where the child has his or her habitual residence in a Member State and (ii) with regard to the 
recognition and enforcement of a judgment given in a Member State, even if the child has his or her habitual residence in a 
third State which is Party to the Convention; Article 61. See also Council Decision of 5 June 2008 authorising some Member 
States  to  ratify,  or  accede  to,  in  the  interest  of  the  European  Community,  the  1996  Hague  Convention  on  Jurisdiction, 
Applicable  Law,  Recognition,  Enforcement  and  Cooperation  in  respect  of  Parental  Responsibility  and  Measures  for  the 
Protection  of  Children  and  authorising  certain  Member  States  to  make  a  declaration  on  the  application  of  the  relevant 
internal rules of Community law, OJ L 151/36, 11.06.2008, p. 1. 
9 See the Report of the 2011/12 Special Commission at https://assets.hcch.net/upload/wop/concl28-34sc6_en.pdf, paras 3, 4 
and 41. 
10 See the letter at https://assets.hcch.net/upload/abduct2011eu2.pdf.  
11 UNCRC of 20 November 1989 which is in force for all Member States. 
12 Charter of Fundamental Rights of the European Union, OJ 26.10.2012, C 326 p: 391. 

7 

 
 
                                                            
Recognition and enforcement of judgments given in another Member State on parental responsibility 
matters is governed by the Brussels IIa Regulation.13 The Brussels I Regulation is not directly relevant 
to the Brussels IIa Regulation as it explicitly excludes family matters from its scope. Nevertheless, the 
solution  found  during  the  latest  Brussels  I  recast  on  the  abolition  of  exequatur  inspires  to  a  certain 
extent  the  amendments  proposed  for  the  Brussels  IIa  Regulation  in  this  respect.  Like  the  proposed 
clarifications  and  changes  to  the  cooperation  provisions,  they  are  based  on,  and  aiming  at  an  even 
stronger implementation of, mutual trust. 

2.2.  Matrimonial matters 

In  matrimonial  matters,  the  Brussels  IIa  Regulation  regulates  the  jurisdiction  of  the  courts  of  the 
Member States for divorce, legal separation and the annulment of marriages. It does not contain rules to 
determine which law applies to these questions. In 2006, the Commission proposed amendments to the 
Regulation  introducing  rules  concerning  applicable  law  in  matrimonial  matters  as  well  as  some 
modifications  concerning  jurisdiction  (hereafter  "the  2006  Commission  proposal  to  amend  the 
Regulation").14 No unanimity could be reached within the Council with regard to the rules on applicable 
law.  As  a  result,  based  on  the  Commission's  proposals,  14  Member  States15  initially  established 
enhanced  cooperation  among  themselves  and  adopted  Regulation  (EU)  No  1259/2010  laying  down 
rules  determining  the  law  applicable  to  divorce  and  legal  separation16  (hereafter  "the  Rome  III 
Regulation"); they were later joined by two more States17. The Rome III Regulation therefore plays a 
role only as far as a possible "rush to court" is concerned (see detailed explanation in chapter 1 of the 
matrimonial matters). 

There  is  no  direct  link  between  the  issues  discussed  in  this  Impact  Assessment  and  the  Maintenance 
Regulation; the scope of the latter relates to maintenance obligations arising from a family relationship 
while  maintenance  is  excluded  from  the  scope  of  the  Brussels  IIa  Regulation.  However,  there  is  an 
indirect link: when divorce is pronounced, frequently also issues like custody and access (i.e. parental 
responsibility matters) and maintenance (for a spouse and/or the child(ren)) need to be resolved.18 These 
latter  matters  follow  their  own  jurisdiction  rules,  based  on  different  considerations  (proximity  in 
parental  responsibility  matters,  protection  of  the  maintenance  debtor  in  need  in  maintenance  matters) 
while  the  aim  of  the  jurisdiction  rules  for  matrimonial  matters  was  to  provide  as  much  choice  as 
possible for the spouses to make sure that they can easily obtain their divorce somewhere. It can happen 
that  jurisdiction  for  divorce,  parental  responsibility  and  maintenance  lies  in  different  Member  States. 
The Maintenance Regulation and to some extent also the current chapter of the Brussels IIa Regulation 
on parental responsibility19 strengthen party autonomy and encourage parties to plan for future litigation 
while they are still on good terms. 
Finally,  the  Commission  proposed  in  2011  two  Regulations20  concerning  property  rights  for 
international couples (spouses and registered partners). The purpose of the proposals was to establish a 
clear  legal  framework  for  determining  jurisdiction  and  the  law  applicable  to  matrimonial  property 
regimes  and  property  regimes  of  registered  partnerships  and  to  facilitate  the  movement  of  decisions 
among  the  Member  States.  After  four  years  of  negotiations,  the  JHA  Council  voted  on  3 December 

13 Judgments from other States parties to the 1996 Hague Convention to whom the Regulation does not apply are recognised 
in Member States under the 1996 Hague Convention. 
14 Proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules 
concerning applicable law in matrimonial matters (COM (2006) 399 final). 
15 Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Portugal, Romania, Slovenia 
and Spain. 
16 OJ 29.12.2010, L 343 p. 10. 
17 Lithuania and Greece. 
18 The same is true for the division of the matrimonial property (see infra note 20 and the adjoining text). 
19 The same is true for the proposals on the property regimes of international couples (infra note 20). 
20 COM(2011) 126 final and COM(2011) 127 final. 

8 

 
 
                                                            
2015 on the package of the two proposals. Unanimity which is required by the Treaty21 for measures in 
the area of family law with cross-border implications could not be reached.22 Member States opposing 
the  adoption  of  the  Regulations  explained  that  "any  initiative  of  the  Union  in  that  area  should  not 
interfere, even indirectly, with the fundamental principles of the family laws of its Member States".23 

The difficulties encountered with the matrimonial property matters have been taken into account while 
assessing  the  political  feasibility  of  any  possible  measures  on  matrimonial  matters  falling  within  the 
scope of the Regulation as the same adoption procedure (unanimity) is also required for the Brussels IIa 
Regulation. In this context, the even more ambitious proposal to consolidate all relevant EU family law 
instrument  in  one  single  instrument  is  not  an  option  at  the  moment.  Moreover,  as  suggested  in  the 
Note24  on  "Current  Gaps  and  Future  Perspectives  in  European  Private  International  Law:  Towards  a 
Code on Private International Law?" commissioned by the European Parliament's Committee on Legal 
Affairs  in  2012,  such  consolidation  in  one  instrument  should  be  addressed  only  after  individual 
instruments have been adopted for all relevant areas of family law. 

3. 

LEGAL AND POLITICAL MANDATE 

The present evaluation of the Regulation and its timing are based on a legal obligation established by 
the Regulation itself which was recently endorsed by a political mandate. 

According  to  the  Regulation,  by  1  January  2012,  the  Commission  shall  present  to  the  European 
Parliament, the Council and the European Economic and Social Committee a report on the application 
of  the  Regulation  on  the  basis  of  information  supplied  by  Member  States.  The  report  shall  be 
accompanied if need be by proposals for adaptations25. 

Like the Regulation itself, these adaptations are subject to the special legislative procedure defined in 
Article 81 para. 3 TFEU: For measures concerning family law, unanimity in the Council is required, and 
the Parliament will be consulted. 
The Juncker Commission's Political Guidelines26 indicate that judicial cooperation among EU Member 
States must be improved step by step keeping up with the reality of increasingly mobile citizens across 
the  Union  getting  married  and  having  children;  by  building  bridges  between  the  different  justice 
systems and by mutual recognition of judgments, so that citizens can more easily exercise their rights 
across the Union. 

At  their  Informal  Council  in  July  2015,  the  Justice  Ministers  exchanged  views  on  the  part  of  the 
Brussels  IIa  Regulation  concerning  parental  responsibility,  on  the  basis  of  a  description  of  some 
shortcomings  identified  by  the  Commission  in  the  evaluation  process.  All  speakers  welcomed  the 
review and agreed  on the need to  further improve the Regulation in matters of parental responsibility 
given the particular sensitivity of the subject matter. 

21 Article 81(3) TFEU. 
22 The proposals will most probably be dealt with under the enhanced cooperation procedure in 2016. 
23 Public debate in the JHA Council on 3 December 2015: http://www.consilium.europa.eu/en/meetings/jha/2015/12/03-04/. 
24  By  Xandra  Kramer,  available  at  http://www.europarl.europa.eu/RegData/etudes/note/join/2012/462476/IPOL-
JURI_NT(2012)462476_EN.pdf. 
25 Article 65. 
26 A new start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change. Political Guidelines for the next 
European Commission, Jean-Claude Juncker, Strasbourg, 15 July 2014. 

9 

 
 
                                                            
The  European  Parliament  which  follows  closely  the  application  of  the  Regulation  called  upon  the 
Commission27 to address some specific shortcomings in the Regulation, so as to better take into account 
in particular the best interests of the child. 

REFIT 

4. 
The  Regulation  is  listed  as  one  of  the  2016  Work  Programme  initiatives28.  The  evaluation  of  the 
Regulation  was  carried  out  in  light  of  the  objectives  of  the  Regulatory  Fitness  and  Performance 
Programme  (REFIT)29.  This  is  the  Commission's  programme  to  ensure  that  EU  legislation  is  fit  for 
purpose  and  delivers  the  results  intended  by  EU  law  makers,  in  other  words:  regulating  better.  This 
evaluation  found  that  the  Regulation  is  a  positive  asset  which  generally  works  well  but  identified  a 
number of shortcomings which would need to be tackled in order to ensure that the Regulation delivers 
even better the results intended for it. In large measure, the objectives set for the assessment below are 
therefore the same as those pursued by the existing Regulation and its predecessor. Given the concerns 
expressed  by  stakeholders  about  the  number  and  complexity  of  EU  family  law  instruments,  it  is 
suggested  to  propose  a  recast  rather  than  an  amendment  in  order  to  enhance  transparency  and  legal 
certainty,  readability  by  the  subjects  and  hence  applicability  of  the  instrument.  This  will  also  make  it 
easier  to  follow  and  to  evaluate  in  the  future  as  some  more  specific  reporting  obligations  will  be 
proposed,  thus  making  simpler  to  provide  more  factual  evidence  about  its  application  and  whether  it 
works instead of resorting to more abstract legal analysis. 

The  evaluation  of  the  Regulation  is  based  on  a  qualitative  and  quantitative  analysis.  To  this  end,  the 
following steps were undertaken: an application report was adopted by the Commission in April 201430 
and a 3-month public consultation was carried out on the functioning of the Regulation and its possible 
amendments (its outcome is summarised in Annex 2). Empirical data was collected through an external 
study31  to  evaluate  the  relevance,  coherence, effectiveness, efficiency,  as  well  as  EU  added  value  and 
utility  of  the  Regulation  (see  Annex  3).  In  addition,  two  surveys  –  one  with  the  Central  Authorities 
established  under  the  Regulation  and  another  one  with  Member  States  –  were  launched  in  2015  to 
collect  specific  data  concerning  parental  responsibility  decisions.  The  evaluation  took  also  account  of 
the rights embedded in the Charter of Fundamental Rights and the United Nation Charter on the Rights 
of a Child. Finally, the European Court of Justice (CJEU) has so far rendered 24 judgments concerning 
the interpretation of the Regulation which were taken into account. 

From the evaluation study, which relies on the opinion of the national experts and the interviews with 
legal practitioners and the representatives of the Central Authorities, several conclusions were drawn: 

The evaluation study highlighted the useful role played by the Regulation with respect to cross-border 
litigation in matrimonial and parental responsibility matters. According to the statistics, each year in the 
EU there are about 100,000 international divorces, and the Regulation applies to all of them. It has also 
helped  in  settling  cross-border  cases  relating  to  the  attribution,  exercise,  restriction  or  termination  of 
parental  responsibility  which  arise  independently  of  a  marital  link  between  the  parents.  An  estimated 
150,000 to 245,000 individuals were annually involved in such proceedings. 

The study found that, given that the overall number of international divorces and families affected by 
the Brussels IIa Regulation, both the existence and further improvement of the Regulation are relevant 
to the needs of citizens. It also appears that between the two major areas covered by the Regulation, the 

27  A  Civil  Justice  Forum  was  organised  on  26  February  2015  by  the  JURI  Committee  to  discuss  the  Regulation.  See 
https://polcms.secure.europarl.europa.eu/cmsdata/upload/a4a36d3d-5a3e-4e67-98ff-
399c5728bd92/IPOL_STU(2015)510003_EN.pdf for the proceedings. 
28 Commission Work Programme 2016 – No time for business as usual, COM(2015) 610 final, Annex II. 
29 Better regulation for better results - An EU agenda, COM(2015) 215 final. 
30 Supra note 25. 
31  Study  on  the  assessment  of  Regulation  (EC)  2201/2003  and  the  policy  options  for  its  amendment;  see  at 
http://ec.europa.eu/justice/civil/files/bxl_iia_final_report_evaluation.pdf 
http://ec.europa.eu/justice/ 
civil/files/bxl_iia_final_report_analtical_annexes.pdf. 

and 

10 

 
 
                                                            
matrimonial  and  parental  responsibility  matters,  the  latter  were  identified  to  have  caused  more  acute 
problems (see below on the effectiveness and efficiency). 

The objectives of the Regulation are still relevant to the situation as it has evolved since its adoption. 
With regard to registered partnerships (whose dissolution is not covered by the scope of the instrument), 
the study did not identify any specific problems32 requiring to be addressed during the review.  

Looking  at  EU  added  value  and  utility,  the  study  concludes  that  there  is  nothing  to  indicate  that  the 
Member States could have achieved the same results without EU intervention. The Regulation serves 
well  the  legitimate  interests  of  EU  citizens  who  have  certain  expectations  of  an  effective  common 
judicial area. 

The Regulation is coherent with, and fosters, the free movement of persons within the EU. However, it 
appears  that  the  multitude  and  complexity  of  Union  instruments  in  family  law  have  led  to  practical 
difficulties, such as a lack of understanding on the part of citizens and practitioners. In particular, it may 
be difficult in some cases to consolidate proceedings for divorce, maintenance and child custody. 

The  effectiveness  of  the  Regulation  was  looked  at  in  extensive  detail  and  the  study  found  that  the 
Regulation has contributed to building a European area of justice in the domains of matrimonial matters 
and  parental  responsibility.  It  has  facilitated  the  settlement  of  cross-border  litigation  in  both  areas 
through a comprehensive system of jurisdiction rules, a system of cooperation between Member States' 
Central Authorities (on parental responsibility matters only), the prevention of parallel proceedings, and 
ensured the mutual recognition of judgments. Furthermore, the Regulation appears to build on the right 
measures  –  i.e.  uniform  European  rules  to  settle  conflicts  of  jurisdiction  between  Member  States  and 
rules to facilitate the recognition and enforcement of judgments in another Member State – in order to 
achieve its general and specific objectives. 

While  the  Regulation  is  considered  to  be  functioning  well  overall  and  to  be  delivering  value  to  EU 
citizens, the operational functioning of the instrument is at times hampered by a series of legal issues; 
the current legal text is insufficiently clear or there are omissions. This is considered in particular the 
case for the child return procedure and for the cooperation between the Central Authorities on parental 
responsibility matters. 

With  regard  to  parental  responsibility  matters,  the  overall  efficiency  of  certain  aspects  of  the  child-
related proceedings has been called into question. In matters concerning parental child abduction, cross-
border  placement  of  children,  recognition  and  enforcement  of  judgments  and  cooperation  between 
(central and other) national authorities there are excessive and undue delays arising from the way the 
existing  procedures  are  formulated  or  applied.  This  has  had  a  negative  impact  on  parent-child 
relationships  and  the  best  interests  of  children.  In  addition,  the  requirement  of  exequatur  generated 
delays  per  case  of  several  months  and  costs  reaching  up  to  4,000  Euro  for  citizens.  The  vague 
description of the cooperation between Central Authorities has often led to delays of several months or 
even to the non-fulfilment of requests – which is detrimental to children's welfare. The enforcement of 
judgments  given  in  another  Member  State  was  identified  as  problematic;  judgments  are  often  not 
enforced  or  only  with  significant  delays.  For  the  Member  States  themselves,  on  the  other  hand,  the 
Regulation  itself  has  generated  very  limited  costs;  these  mainly  relate  to  the  operation  of  the  Central 
Authorities. 

The evaluation study stressed that the identified delays and deficiencies have a negative impact on the 
fundamental rights of the child and a corrosive effect on the mutual trust between the Member States on 
which the smooth operation of the Regulation depends. 

The  evaluation  study  considered  a  wide  range  of  issues  in  both  areas;  matrimonial  and  parental 
responsibility  matters.  These  were  compared  with  the  outcome  of  the  public  consultation,  discussed 

32  In  the  course  of  the  consultation  process  the  Commission  did  not  receive  any  request  to  include  the  dissolution  of  a 
registered partnership in the scope of the Regulation. Given the substantial differences between the two types of union, the 
matter of dissolution of registered partnerships should be considered in a separate instrument if necessary. 

11 

 
 
                                                            
with experts, Central Authorities and Member States. In addition, the available data (as described in the 
section  below)  was  taken  into  account  to  draw  the  overall  conclusion  from  the  REFIT  exercise.  As  a 
result,  the  range  of  issues  was  narrowed  down  so  as  to  enable  the  Commission  to  propose  changes 
which  would  enhance  the  operation  of  the  Regulation33.  In  particular,  parental  responsibility  matters 
were identified as an area which would need to be tackled urgently.  

This  Impact  Assessment  presents  how  the  above-mentioned  burdens  could  be  addressed  and  what 
possible savings could be achieved. However, the burden reduction can only be estimated to a limited 
extent, based on concrete examples. For instance, establishing an autonomous consent procedure and a 
time limit for the requested Member State to respond to the request (as proposed in the options section) 
would shorten the time for obtaining consent in the placement procedures to max. eight weeks instead 
of  the  current  six  months  or  more.  With  the  proposed  abolition  of  exequatur,  delays  (taking  up  to 
several  months)  and  costs  (up  to  € 4,000)  relating  to  obtaining  it  would  be  eliminated.  The  proposed 
amended procedure for the return of the child in case of abduction would reduce the costs of specialised 
legal advice for parents (between € 1,000 and 4,000). 

5. 

AVAILABLE DATA 

The  availability  and  completeness  of  the  statistics  on  the  application  of  the  Regulation  is  limited  and 
differs widely across Member States. For instance, there is no reliable record of all cases heard or their 
outcome.34 A large share of the decisions relating to the application of the Regulation are not published 
or  not  easily  accessible.35  This  is  in  particular  true  for  matrimonial  matters  and,  to  some  extent,  for 
child-related proceedings brought without the involvement of Central Authorities (i.e. all custody cases, 
part of the access cases and a minor part of the child abduction cases). 

Similarly, the Central Authorities do not hold any official statistics on the application of the Regulation 
by  national  courts  in  general.  Several  Central  Authorities  do  however  compile  statistics  on  their  own 
activity related to the application of the Regulation – for instance on the number of applications for a 
return  of  a  child  under  the  1980  Hague  Convention  in  conjunction  with  the  Regulation  –  and  the 
outcome  of  the  respective  court  proceedings.  The  lack  of  data  is  therefore  particularly  acute  for  the 
matrimonial  matters  which  are  not  monitored  by  the  Central  Authorities.  Thus,  for  these  matters  no 
comprehensive nor specific, aspect by aspect, overview of possible difficulties exists. Nevertheless, two 
separate requests for specific data were made to Member States36 and their Central Authorities37 to feed 
this Impact Assessment which relies upon this data where it was made available. 

As a result of the limited availability and completeness of the published and accessible case law on the 
application of the Brussels IIa Regulation in the Member States, it is  not possible to use the case law 
data as a representative quantitative source for the assessment of the magnitude of issues related to the 
Brussels IIa Regulation. 

6. 

METHODOLOGY 

Apart  from  dividing  the  assessment  into  two  core  subjects  (matrimonial  and  parental  responsibility 
matters), in the following sections, the problems, objectives, policy options and their impact assessment 

33  For  example,  most  of  the  matters  already  clarified  by  the  Court  of  Justice  (such  as  the  definition  of  the  term  "habitual 
residence") were dropped from this analysis. 
34  In  many  countries  only  decisions  of  superior  courts  and  decisions  with  an  element  of  novelty  in  the  jurisprudence  are 
published. Furthermore, the way in which case law and statistics are made available differ; while some Member States have 
set up central online repositories, in others the data is only available in the specific courts. 
35 The statistical gap was recorded in the Evaluation study on the Regulation completed in July 2015; only some examples 
could be collected. http://ec.europa.eu/justice/civil/files/bxl_iia_final_report_evaluation.pdf. 
36 In July 2015 Member States were asked for the overall number of refusals of recognition or enforcement of judgments 
from  another  Member  State  concerning  matrimonial  or  parental  responsibility  matters  in  their  respective  jurisdiction,  the 
grounds for refusal invoked and the reasons for this. Half of the Member States replied; all stated that no data is collected. 
37 In total, 19 Central Authorities submitted data related to the number of cases concerning child abduction and placement 
decisions. 

12 

 
 
                                                            
will  be  dealt  with  separately  for  each  of  the  issues  identified  in  the  evaluation  of  the  Regulation  as 
problematic. This  approach  was chosen because each issue has  a specific problem  definition,  specific 
policy  objectives,  distinct  policy  options  and a specific  group  of  stakeholders  affected.  Moreover, the 
issues are not interconnected in the sense that the choice of a policy option on one issue would have an 
impact on the other issues.  

Finally,  the  assessment  of  the  policy  options  considers  clarifying  the  current  legal  text  (by  codyfying 
case law of the Court of Justice of the European Union, by rendering explicit what is implicit and by 
integrating  available  guidelines  and  good  practice).  With  regard  to  the  reduction  of  costs,  it  will  be 
estimated whenever possible on case examples given the absence of data. 

II.   MATRIMONIAL MATTERS 

Matrimonial matters in the Regulation relate to the proceedings concerning divorce of an "international 
couple" whereas issues relating to maintanance38 and/or property39 of an international couple are dealt 
with  separately  in  other  EU  instruments  (see  chapter  2.2.).  It  may  often  by  advantageous  and  most 
efficient for both parties for all their matters to be dealt with by the same court; usually this is the court 
where  divorce  proceedings  were  initiated.  It  is  therefore  worthwhile  considering  the  possibility  for 
spouses  to  combine  the  different  matrimonial  proceedings  before  one  court  consistently  with  other 
existing Regulations.  

1. 

PARTY AUTONOMY AND "RUSH TO COURT" IN MATRIMONIAL MATTERS 

1.1.  Problem definition 
Limited party autonomy 

Spouses  in an international marriage do not  have  a possibility to  agree on the competent court which 
would  settle  their  divorce  or  separation40.  This  causes  some  drawbacks  as  it  has  been  reported  in  the 
evaluation study. First of all, it may lead to a lack of predictability for the spouses in that they do not 
know in advance where potential litigation will take place in the event of a divorce. The current rules 
offer seven possible fora to bring the divorce case based on, for example, one or both spouses' habitual 
residence or nationality. 

In addition, spouses are not able to make arrangements in advance, for example, for instance at the time 
of  the  conclusion  of  a  marriage  agreement,  on  the  question  which  court  shall  deal  with  any  future 
divorce.  Such  arrangements  made  in  advance  may  reduce  litigation  on  where  the  divorce  should  be 
handled once the couple may be on bad terms in the context of the divorce. 

38 Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of 
decisions and cooperation in matters relating to maintenance obligations, OJ L 7, 10.1.2009, p. 1 (hereafter: the Maintenance 
Regulation). 
39At a Council meeting on 3 December 2015, Poland and Hungary pronounced themselves against the 2011 Commission's 
proposal  concerning  the  jurisdiction,  applicable  law,  recognition  and  enforcement  of  judgments  relating  to  matrimonial 
property regimes. The negotiations have therefore failed because the required unanimity could not be reached. On 3 March 
2016, the Commission presented to the Council a Proposal for a Council Decision authorising enhanced cooperation in the 
area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international 
couples,  covering  both  matters  of  matrimonial  property  regimes  and  the  property  consequences  of  registered  partnerships 
and submitted two implementing regulations. 
40 Although marriage annulment is also covered by the scope of the Regulation the absence of a legal framework for advance 
planning of their possible future litigation by the spouses does not affect it. The nullity declaration is a reaction to defects in 
the  contracting  of  a  marriage.  Member  States’  annulment  arrangements  primarily  pursue  public-order  objectives  (e.g. 
preventing bigamy). The validity of a marriage should therefore be determined according to the conditions of the law which 
provided  for  the  prerequisites  of  entering  into  the  marriage,  or  by  the  national  law  of  the  spouse  concerned.  Stakeholders 
have emphasised that issues related to the validity of marriage do not belong to the autonomy of the spouses, since they are 
related to the protection of the public interest. Therefore, as it is already the case for the choice of law applicable to marriage 
annulment, parties shall not have the possibility to choose a court in such a case either. 

13 

 
 
                                                            
85%  of  the  respondents  to  the  public  consultation  identified  that  the  Regulation  does  not  sufficiently 
promote a common agreement between spouses. It has to be admitted, however, that this problem was 
perceived on a theoretical level (as giving more room to party autonomy in dispute settlement is a trend 
of  the  time)  while  no  problematic  cases  or  actual  evidence  to  underpin  the  existence  of  tangible 
problems caused by the absence of a possibility to choose a court were produced. 

Furthermore, when a couple divorces or separates, they usually have several matters to settle at the same 
time. Besides the divorce, solutions must be found for the parental responsibility over the children, for 
the maintenance of the spouse and children, for the property consequences of the divorce. At present, it 
is  not  excluded  that  courts  in  different  Member  States  have  jurisdiction  over  these  closely  related 
matters. This can be inefficient as the Regulation does not explicitly offer the flexibility to consolidate 
the different family proceedings in advance by choosing a court (see Annex 6 explaining choice of 
court  in  other  EU  family  law  instruments).  Consolidation  can  already  be  achieved  under  the  current 
rules,  however,  if  the  other  matters  (parental  responsibility  and  maintenance  for  spouse  and  children) 
are  also  brought  in  one  of  the  divorce  fora  offered  by  the  Regulation  at  present,  provided  that  some 
other conditions are fulfilled (e.g. for parental responsibility matters: that the jurisdiction is in the best 
interests of the child). 

This situation is due to the fact that the Brussels II Regulation was the first Union instrument in the area 
of family law, and its conversion into the Brussels IIa Regulation only enlarged its scope with regard to 
parental  responsibility  without  touching  the  part  on  matrimonial  matters.  Party  autonomy  assumed 
importance only in the instruments which were adopted subsequently. 

"Rush to court" 

The legislator decided not to establish a single forum but to provide a list with a variety of connecting 
factors  to  make  sure  spouses  can  find  a  forum  to  obtain  their  divorce  and  ensure  flexibility  which  is 
often needed in a cross-border marriage breakdown as the situation constantly changes at short notice.41 
However,  the  result,  namely  seven  alternative  (as  opposed  to  hierarchical)  grounds  of  jurisdiction  set 
out  in  the  Regulation  in  conjunction  with  the  absence  of  uniform  conflict-of-laws  rules  in  the  entire 
Union may in some instances induce a spouse to "rush to court", that is, to apply for divorce before the 
other  spouse  does  to  ensure  that  the  law  applied  in  the  divorce  proceedings  will  safeguard  his  or  her 
own interests. A Member State might then consider that its courts are receiving too many cases which 
are not connected closely enough to the forum, and where it might also be inappropriate to apply that 
forum’s substantive law as foreseen by that State’s conflict-of-laws rules. 

"Rush  to  court"  was  already  addressed  by  the  harmonisation  of  the  rules  on  the  law  applicable  to 
divorce  (Rome  III  Regulation)  42.  As  a  result  of  such  harmonisation,  any  court  seised  within  the  EU 
would have to apply the same substantive law as determined by the common rules. Therefore, it would 
not matter anymore which court in the EU is seised of the matter. However, as the Regulation does not 
yet apply in all Member States (today it applies in 16 Member States while one more  – Estonia – has 
announced to join soon), there may still be an incentive for spouses to act first by choosing a convenient 
court from the list of available jurisdictions. There is no evident trend towards convergence of Member 
States’ substantive divorce laws, and there are no indications that the remaining Member States will join 
the  Rome  III  Regulation  in  a  foreseeable  future.  When  last  consulted  by  the  Commission  about  their 
intentions43, the United Kingdom and Ireland declared that they had no intention to join Rome III while 
the other Member States where Rome III does not yet apply remained silent on the issue. 

41 See the explanatory report by Prof. Alegría Borrás on the Brussels II Convention, OJ C 221, 16.7.1998, p. 27, paras 28-32. 
42 A further significant factor that may influence a spouse's choice of forum is the lack of harmonised conflict rules on the 
devolution of the matrimonial property, currently the subject of proposal COM (2011) 125. 
43 At the informal meeting held on 12 October 2015 with Member States' representatives on the forthcoming review of the 
Regulation. 

14 

 
 
                                                            
Specialised legal advice may be required to take full advantage of the alternative grounds of jurisdiction 
in matrimonial matters.44 The risk that the other spouse will rush to court may encourage a spouse to 
rush  to  court  herself/himself  as  quickly  as  possible  or  at  least  to  consult  a  specialised  lawyer  in  this 
regard  –  leading  to  additional  costs.  Several  experts  in  the  evaluation  study  noted  that  citizens  may 
require several lawyers from different legal systems for cases where a possibility for rush to court / 
forum  shopping  exists.  Therefore,  legal  advice  and  representation  in  two  Member  States  could  be 
necessary. As presented in the study45, in a typical case concerning rush to court, the costs doubled, both 
of the lawyer and court's fees, reaching almost € 15,000. 

Scale of the problem 

1.2. 
The  overall  number  of  international  divorces  has,  with  slight  fluctuations,  remained  stable  over  the 
years, at around 100,000 per year. The institution of legal separation only exists in 12 Member States46, 
the total number amounting to 2,500 per year. The above-mentioned problem of limited party autonomy 
potentially  affects  those  among  all  international  couples  seeking  divorce  who  would  like  to  choose  a 
court and would be able to agree. The number of persons actually wishing and able to do so is unknown, 
though.  Practicing  lawyers  including  members  of  the  Expert  Group  which  advised  the  Commission 
reported  that  such  planning  concerns  mainly  a  small  number  of  very  wealthy  spouses.  There  is, 
however, no quantified evidence on this matter.  

The problem of "rush to court", on the other hand, potentially affects only those international couples 
with connections to Member States not applying the Rome III Regulation as in the States where Rome 
III applies, the same substantive divorce law would be applied in every possible forum. 

1.3. 

Subsidiarity 

Under  Article 81  para. 1  TFEU,  the  Union  has  shared  competence  to  develop  judicial  cooperation  in 
civil  matters  having  cross-border  implications,  based  on  the  principle  of  mutual  recognition  of 
judgments and decisions in extrajudicial cases. Such cooperation may include the adoption of measures 
for  the  approximation  of  the  laws  and  regulations  of  the  Member  States.  Article 81  para. 2  TFEU 
specifies that in order to reach the aim stated in paragraph 1, the Union shall adopt measures aimed at 
ensuring (c) the compatibility of the rules applicable in the Member States concerning jurisdiction, and 
(f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting 
the compatibility of the rules on civil procedure applicable in the Member States. The possible creation 
of  a  new  jurisdiction  rule  based  on  party  autonomy  is  covered  by  Article 81  para. 2  (c),  a  possible 
transfer rule limiting "rush to court" and the possible introduction of a hierarchy for jurisdiction grounds 
are  based  on  Article 81  para. 2  (c)  and  (f),  promoting  compatibility  of  rules  on  jurisdiction  and  civil 
procedure applicable in the Member States. 

Shortcomings,  where  identified,  can  only  be  addressed  through  Union  intervention  by  changing  the 
existing EU law and cannot be addressed by the Member States acting individually. 

As the Regulation's jurisdiction rules are exhaustive (with the exception of the rule allowing the use of 
national residual jurisdiction), the lack of party autonomy could not be addressed by the introduction of 
a jurisdiction rule based on party autonomy into the law of individual Member States. 

The "rush to court" problem cannot be dealt with by individual Member States under their own national 
law because the underlying reason for the rush to court lies in the fact that the substantive divorce laws 
in Member States are different, and depending on where divorce is pronounced, the consequences for 
each spouse may be different. The Rome III Regulation, by creating uniform rules on applicable law, 

44 A comprehensive analysis of this issue can be found in the section “Rush to court / forum shopping” in Annex 1. See also 
N. A. Baarsma, The Europeanisation of International Family Law, 2011, p. 154. 
45 Supra note 31, at p. 54. 
46  Belgium,  France,  Ireland,  Italy,  Lithuania,  Luxembourg,  Malta,  Netherlands,  Poland,  Portugal,  Spain,  and  the  United 
Kingdom. 

15 

 
 
                                                            
solves this problem to a large extent for those 16 Member States in which this Regulation adopted under 
enhanced cooperation applies and could be sufficient to solve the "rush to court" problem in all Member 
States  if  the  remaining  947  would  decide  to  join  the  Rome  III  Regulation.  However,  only  Estonia  has 
announced to do so while the other Member States remained silent or explicitly declared that they did 
not intend to join Rome III.48 

Therefore,  a  hierarchy  of  jurisdiction  grounds  or  the  possibility  for  a  court  to  transfer  jurisdiction  to 
another Member State would be the only solutions  available at this stage. As the Court of Justice has 
ruled that Member States are not allowed to use any discretion which may exist under their national law 
to transfer jurisdiction established by EU Regulations49, the transfer mechanism could only be created 
by including it into the Regulation. The same would be true for a hierarchy of the jurisdiction grounds 
already offered by the Regulation. 

1.4.  Objectives 
General objective: 

(a) 
(b) 

to enhance access to court 
to ensure sound administration of justice 

Specific objectives: 

(a) 

(b) 
(c) 

to  increase  party  autonomy  and  thereby  enhance  predictability  for  international  divorce 
proceedings 
to facilitate the consolidation of different family proceedings 
to limit "rush to court" and thereby reduce related costs 

1.5.  Description of Policy Options 
Option 1: Baseline scenario 

This  policy  option  assumes  that  no  new  initiatives  would  take  place  at  EU  level.  Parties  wishing  to 
consolidate their matrimonial proceedings can do so already now under the existing rules: The Brussels 
IIa Regulation allows parental responsibility proceedings to be brought in a court having jurisdiction for 
divorce  under  the  Regulation,  provided  that  this  corresponds  to  the  child's  best  interests.  The 
Maintenance Regulation also allows proceedings for child maintenance to be brought in the court where 
parental  responsibility  matters  may  be  brought,  and  proceedings  for  spousal  maintenance  in  the  court 
where  divorce  proceedings  may  be  brought.  Therefore,  by  bringing  also  parental  responsibility  and 
maintenance issues before one of the courts having jurisdiction for their divorce under the Regulation, 
the spouses can consolidate all these proceedings in one forum. Only a choice in advance, which might 
be desired by a limited number of spouses, is not possible. 

The  perceived  problem  of  rush  to  court  would  continue  to  exist  with  regard  to  those  Member  States 
which have not yet joined Rome III. 

Option 2: Introduction of a possibility for the spouses to choose the competent court in a Member State 
with which they have a close link 

In  addition to what  is  already  possible  under Option 1, this policy  option would allow the spouses to 
choose the competent court by common agreement in advance of any litigation. The choice would be 
limited  to  jurisdictions  with  which  the  spouses  have  a  close  link  by  virtue  of  habitual  residence  or 

47  It  is  recalled  that  the  Brussels  IIa  Regulation  only  applies  to  EU  27  (except  Denmark),  and  16  Member  States  already 
apply Rome III (supra notes 15 and 17). 
48 Supra note 43 and the adjoining text. 
49  See  CJEU  1 March  2005,  Case  C-281/02  –  Andrew  Owusu  v  N.  B.  Jackson.  This  judgment  concerned  the  Brussels  I 
Convention, but the overwhelming majority of courts and academics applies this statement also to other EU instruments such 
as  the  Brussels  I  Regulation  and  the  Brussels  IIa  Regulation,  at  far  as  matrimonial  matters  are  concerned  (e.g. 
Magnus/Mankowski, Brussels I Regulation, Introduction No 4, Brussels IIbis Regulation, Introduction No 5, 115). 

16 

 
 
                                                            
nationality. Formal requirements would have to be included to ensure that the spouses are aware of the 
consequences of their choice and reduce the risk for a weaker spouse of being forced into an agreement 
on a forum which may be detrimental. 

In  order  to  strengthen  the  choice  of  the  parties,  a  provision  would  ensure  that  the  chosen  court  can 
proceed even if a court in another Member State was seised in violation of a choice of court agreement 
in order to prevent the other spouse from seising the chosen court. Such solution was recently adopted 
in civil and commercial matters (recast of the Brussels I Regulation50). 
Option 3: Introduction of a possibility for the spouses to choose the competent court in a Member State 
with  which  they  have  a  close  link  combined  with  a  possibility,  for  spouses  who  cannot  agree,  for  the 
court to transfer jurisdiction to the courts of another Member State 

In  addition  to  Option  2,  this  option  would  entail  a  possibility  for  a  court  to  transfer  jurisdiction  for  a 
divorce case to a court of another Member State. 

Such  a  transfer  could  be  envisaged  in  exceptional  circumstances  and  under  strict  conditions,  in 
particular if a spouse, in the absence of a choice of court, applies for divorce in a Member State, but the 
defendant spouse requests that the case be heard by a court of another Member State on the basis that 
the  marriage  was  manifestly  more  closely  connected  with  that  State.  The  possibility  to  transfer 
jurisdiction would provide a remedy to the problems that  may arise when one spouse  has unilaterally 
applied  for  divorce  in  a  certain  forum  against  the  will  of  the  other  spouse.  In  the  interest  of  legal 
certainty,  the  “centre  of  gravity”  of  a  marriage  should  be  established  on  the  basis  of  a  closed  list  of 
connecting  factors  which  must  apply  in  the  specific  case,  for  example  the  last  common  habitual 
residence of the spouses, if one spouse still lives there. Jurisdiction based on the choice of the parties 
would  be  excluded  from  the  possibility  to  transfer  to  another  Member  State.  Moreover,  the  transfer 
system would be modelled on the system already in place for parental responsibility matters, requiring 
agreement between the two courts within a time frame specified by the Regulation. If there is no answer 
within this period, or the answer of the requested court is negative, jurisdiction remains with the court 
initially seised, so as to prevent a denial of justice or parallel proceedings. 
Option 4: Introduction of a possibility for the spouses to choose the competent court in a Member State 
with which they have a close link combined with a hierarchy of grounds of jurisdiction 

In addition to Option 2, this option would imply the introduction of a hierarchy of jurisdiction grounds. 
For  example,  jurisdiction  would  lie in  first  place  with  the  courts  of  the Member  State  of  the  spouses' 
common habitual residence. Failing that, the second court to hear the divorce case would be that of the 
spouses' last common habitual residence, if one of them still resides there. In cases where a current or 
previous common habitual residence of the spouses could not be established, the court of the defendant 
spouse's habitual residence could be seised. Finally, there would be a possibility to seise the court of the 
nationality  of  both  spouses  (in  the  case  of  the  United  Kingdom  and  Ireland,  of  their  common 
'domicile’). 

In  summary,  this  option  would  mean  that  the  requesting  spouse  would  need  to  file  an  application  for 
divorce with the first court from the list of available jurisdictions and only where no court of a Member 
State  has  jurisdiction  under  the  first  rule  representing  the  closest  connection,  courts  in  other  Member 
States could be seised, in hierarchical order as established by the Regulation. 

1.6.  Analysis of impact of Policy Options 

1.6.1.  Option 1: Baseline scenario 

Since this option would entail no change, the situation described above would continue to exist. Parties 
wishing  to  consolidate  their  matrimonial  proceedings  would  continue  to  be  able  to  do  this  under  the 

50 Article 31(2) and (3) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 
2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L 351, 
20.12.2012, p. 1. 

17 

 
 
 
                                                            
existing rules by bringing also parental responsibility and maintenance issues before one of the courts 
having jurisdiction for the divorce under the Regulation even if the Regulation does not offer them the 
possibility to agree in advance on the divorce court itself. 

A possible problem of rush to court would continue to exist with regard to those Member States which 
have  not  yet  joined  Rome  III.  Infringement  proceedings  are  not  an  appropriate  tool  with  a  view  to 
improving the operation of the Regulation in the area discussed here as there is currently no rule in this 
Regulation addressing the problems described above. 

1.6.2.  Option  2:  Introduction  of  a  possibility  for  the  spouses  to  choose  the  competent  court  in  a 

Member State with which they have a close link 

Effectiveness to achieve objectives: The introduction of a limited possibility for the spouses to choose 
the competent court would have some positive impact for the limited number of (in particular wealthy) 
spouses  who  consider  this  kind  of  estate  planning  useful  and  are  able  to  agree  on  a  forum  because  it 
would enhance predictability of the divorce forum. The assessment of the effectiveness to achieve this 
objective is however hampered by the lack of data and the fact that the actual scale of the problem is 
currently unknown. 

As regards the possibility to consolidate various family proceedings related to the divorce which can be 
achieved already under the current rules, this option would add the possibility for spouses to determine 
in advance which court shall deal with the consolidated proceedings. 

Moreover,  for  the  limited  number  of  spouses  described  above,  this  option  could  reduce  the  "rush  to 
court" as both spouses would be bound by their common choice. Provided that the situation develops as 
described  in  the  problem  description,  with  this  option  there  would  still  be  an  incentive  for  Member 
States to join Rome III. Where spouses did not choose a court jointly  – which according to anecdotal 
reports from practising attorneys is indeed the case for most couples  – the problem of “rush to court” 
continues to exist as long as the conflict-of-laws rules are not uniform. 

Fundamental rights: This option would have a positive impact on fundamental rights, since it would 
give effect to the will of the parties and thereby improve their situation in terms of easing the right to 
access to judicial review as embedded in Article 47 of the Charter. 

Stakeholders'  views:  Because  this  is  standard  in  more  recent  EU  instruments,  the  vast  majority  of 
stakeholders  (85%),  including  Member  States,  are  in  favour  of  introducing  a  possibility  of  choice  of 
court. It was however highlighted that this choice should be limited to courts to which the spouses have 
a substantial connection51 and that the formal requirements of the choice should be defined following 
the example provided by other EU instruments52 in order to prevent a weaker spouse from being forced 
into a detrimental agreement. 

Costs  savings:  For  spouses  who  can  agree  on  a  court,  the  rush  to  court  and  thereby,  the  doubling  of 
costs could be avoided. This option would however not reduce costs for spouses who cannot agree on a 
court.  Taking  the  example  from  the  problem  definition  (p.15),  an  amount  of  up  to  € 7,500  could  be 
saved53. 

51 During the public consultation, 97% (i.e. 140 out of 145 responses to this question) indicated that the choice should be 
limited  by  the  requirement  of  a  ’substantial  connection’  between  the  spouse(s)  or  the  case,  and  the  chosen  forum.  In 
particular, of 140 respondents, 65% (i.e. 85 out of 140 responses) think that the spouses’ habitual residence provides a valid 
connecting factor, 33% (i.e. 47 out of 140 responses) think that the nationality of at least one of the spouses does and 36% 
(i.e. 48 out of 140 responses) consider any court having jurisdiction to hear the case under the main jurisdiction provisions of 
the Regulation as being sufficiently closely connected with the case and therefore eligible to be chosen by the parties. 
52  See,  for  example,  Article  4(2) of  Council Regulation  (EC)  No 4/2009 of 18  December  2008  on  jurisdiction,  applicable 
law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligation (hereafter: the 
Maintenance Regulation) and Article 25(1) and (2) of the Brussels I recast (supra note 50). 
53 Supra note 45. 

18 

 
 
 
                                                            
Political feasibility: This option would be difficult to accept by some Member States given the varying 
definition of marriage in their national laws and their resulting difficulty to apply the instrument to the 
divorce of other forms of marriage, e.g. same-sex marriages. See chapter 2.2. concerning matrimonial 
matters. 

1.6.3.  Option  3:  Introduction  of  a  possibility  for  the  spouses  to  choose  the  competent  court  in  a 
Member  State  with  which  they  have  a  close  link  combined  with  a  possibility  for  the  court  to 
transfer jurisdiction to the courts of another Member State 

Effectiveness to achieve objectives: In addition to the impacts achieved by Option 2, this option would 
further  reduce  the  incentive  to  "rush  to  court".  This  would  be  in  particular  the  case  for  spouses  who 
cannot  agree  on  a  choice  of  court.  It  would  give  a  possibility  to  the  court  seised  with  the  divorce 
application,  upon  application  by  one  party,  to  consider  whether  a  court  of  another  Member  State  is 
better  placed  to  hear  the  case.  Nonetheless,  the  introduction  of  a  possibility  to  transfer  jurisdiction 
would create some legal uncertainty for the spouses as to whether a court seized will actually hear their 
case. There is also a risk that this option will generate litigation on whether the case should actually be 
transferred or not. A list of specific criteria should guide the judge making use of the transfer to ensure 
that  only  in  limited  and  exceptional  situations  such  transfer  would  be  possible,  but  as  there  is  no 
overarching principle like the protection of the best interest of the child (which governs the transfer in 
parental  responsibility  matters54),  it  may  be  expected  to  be  difficult  to  reach  unanimity  on  the 
appropriate criteria defining in which circumstances a transfer should be permitted. 

Provided that the situation develops as described in the problem description, like Option 2 this option 
would not have any negative impact on wider adherence to Rome III. The additional possibility for the 
court  seised  in  the  absence  of  a  choice  of  court  agreement  to  transfer jurisdiction to  another  Member 
State would offer a remedy if the court seised clearly does not seem to be the most appropriate forum 
(e.g. because of the substantive law that would be applied there under the forum’s own conflict-of-laws 
rules).  This  transfer,  inspired  by  the  common  law  principle  of  forum  non  conveniens,  however,  is 
depending on the circumstances and is  nothing a spouse could  count on in  advance  as a general rule. 
The  incentive  for  Member  States  who  are  generally  open  to  applying  foreign  law  to  join  Rome  III 
would  therefore  still  exist  because  uniform  conflict-of-laws rules  would  offer  greater  predictability  to 
the spouses with regard to the applicable law and thus the outcome of the case. In the unlikely case that 
all Member States join Rome III, a transfer under this option would no longer have an impact on the 
applicable  substantive  law;  however,  it  is  conceivable  that  courts  would  envisage  a  transfer  even  if 
Rome III applies. This shows that this option would move quite far away from the initial concept of the 
legislator that a wide range of possible fora should be offered to the mobile citizens to choose from at 
the moment they need to seise a court. 

Fundamental  rights:  This  option  would  have  some  positive  impact  on  fundamental  rights,  since  it 
would give full effect to the common will of the spouses and thereby improve their situation in terms of 
easing the right to access to judicial review as embedded in Article 47 of the Charter. Moreover, in the 
absence of a choice of court it can potentially protect a potentially weaker spouse from being compelled 
to face court proceedings in a jurisdiction where the applicable law is detrimental to this spouse only 
because  the  other  spouse  was  quicker  in  rushing  to  court.  The  discretion  to  transfer  jurisdiction  to  a 
Member State more closely connected with the case, depending on the circumstances, which this option 
confers upon the judge could enhance the sound administration of justice and the access of both spouses 
to the appropriate forum. However, the price to pay is a decrease in predictability because spouses can 

54 In parental responsibility matters, a transfer rule was included into the Regulation in 2003 because for these matters, in 
principle  only  one  Member  State  at  a  time  has  jurisdiction  under  the  Regulation.  This  child-centred  jurisdiction  avoids 
parallel proceedings, but as a consequence it was felt than an escape clause was needed for cases where due to exceptional 
circumstances, this only forum turned out not to be the most appropriate one. For matrimonial matters, on the other hand, the 
legislator offered them as wide a list of fora as possible to choose from in order to enable them to find a forum where they 
could obtain a divorce according to their wishes. 

19 

 
 
                                                            
no longer be certain that a court having under the Regulation will actually hear the case if seised  – an 
idea which runs counter to the original will of the legislator. 

Costs  savings:  This  option  would  eliminate  extra  costs  related  to  rush  to  court  for  spouses  who  can 
agree on a court. For spouses who cannot agree on a court, it may reduce costs only in situations when a 
spouse refrains from rushing to court because he or she is aware of the transfer provision. 

Political feasibility: This option would be difficult to accept for some Member States given the varying 
definition of marriage in their national laws and their resulting difficulty in applying the instrument to 
the  divorce  of  other  forms  of  marriage,  e.g.  same-sex  marriages.  See  chapter  2.2.  concerning  the 
matrimonial matters. 

Stakeholders' views: For the creation of a possibility to choose a court, see the comments on Option 2. 
The  UK,  in  particular  pleaded  in  favour  of  introducing  the  possibility  to  transfer  jurisdiction  for 
matrimonial matters. 

1.6.4.  Option  4:  Introduction  of  a  possibility  for  the  spouses  to  choose  the  competent  court  in  a 
Member  State  with  which  they  have  a  close  link  combined  with  a  hierarchy  of  grounds  of 
jurisdiction 

Effectiveness to achieve objectives:This option would completely eliminate the "rush to court" also in 
the absence of a choice of the parties because in those cases it would suppress the current flexibility of 
the applicant to choose a court from the available list of fora and direct a couple to one court only. This 
would  be  the  first  court  from  the  hierarchical  list  and  only  if  there  is  no  Member  State  meeting  the 
criteria of proximity defined in the list, the one next in hierarchy could be seised. Spouses would not 
have any reasons to “strike first” to secure that a court of a specific Member State should hear the case; 
each would need to address the court of the same Member State in case they want to apply for divorce. 

However, this option would depart fundamentally from flexible rules to deal with mobility and to meet 
individuals’ needs to obtain a divorce as easily as possible without sacrificing legal certainty. Precisely 
because  the  conflict-of-laws  rules  are  not  uniform  yet  (nor  are  the  substantive  divorce  laws  of  the 
Member States), the forum still has in certain cases an impact on the outcome of the proceedings. This 
is why parties were given the possibility to seize a broad range of possible courts in the current text of 
the Regulation. This option would run counter to this idea and impose a certain forum and thus a certain 
applicable law55 –  and therefore a  certain outcome of their proceedings  – on the spouses without any 
flexibility. Moreover, the grounds adopted are based on the principle of a genuine connection between 
the person and a Member State. Their acceptance by all Member States was the effort to find points of 
agreement  acceptable  to  all.  This  stance  seems  to  be  reflected  also  in  the  public  consultations  (see 
below).56 

This option could also have a negative impact on the future participation of additional Member States in 
the Rome III Regulation. If it is perceived as a problem that the outcome of the same divorce case will 
be different if brought in one or the other of a number of available fora (due to non-uniform conflict-of-
laws rules), one solution can be to unify the conflict rules while another solution would be to limit the 
number of fora to one. The Union legislator has already decided that the first solution (uniform conflict-
of-laws rules) is a good one; it is questionable whether the success of this solution should be diminished 
by the adoption of other solutions which, while to some extent achieving the objective sought, would at 
the same time entail negative consequences as well. 

Costs savings: This option would fully eliminate the extra costs related to rush to court for all spouses 
regardless  of  whether  they  made  a  choice  of  court  because  there  would  always  only  be  one  forum 
available (thus no incentive for a "rush to court"). 

55 As stated above (see supra note 43 and the adjoining text), Rome III is unlikely to be joined by all Member States in the 
near or mid-term future. 
56 See the explanatory report by Prof. Alegría Borrás on the Brussels II Convention, OJ C 221, 16.7.1998, paras 28-30. 

20 

 
 
                                                            
Stakeholders' views: The respondents to the public consultation were asked to identify the remedy for 
rush to court situations. The majority (69%) thought that the risk of a ‘rush to court’ might be reduced 
by establishing  an order of priority of the several alternative grounds for jurisdiction so as  to prevent 
spouses  from  beating  each  other  in  filing  a  claim.  However,  Member  States  (BE,  CZ,  FR,  PL,  NL) 
stated that the ways of identifying the court responsible in matrimonial matters should not be revised in 
order to reduce the risk of a ‘rush to court’. According to France, even though the existence of several 
grounds of jurisdiction theoretically increases  the risk of a ‘rush to  court’,  in  practice, the grounds of 
jurisdiction set out by the Regulation mostly correspond to specific factual situations that occur when 
the habitual residence criterion cannot be applied, and the current alternative grounds should therefore 
be maintained. 

Political feasibility: This option would be difficult to accept for some Member States given the varying 
definition of marriage in their national laws and their resulting difficulty in applying the instrument to 
the  divorce  of  other  forms  of  marriage,  e.g.  same-sex  marriages.  See  chapter  2.2.  concerning 
matrimonial matters. 

1.7.  Comparing the Options and preferred Policy Option 

Objectives/Impacts  Option 1 

Option 2 

Option 3 

Option 4 

Baseline 
scenario 

Choice of court 

Choice of court + 
hierarchy of grounds 
for jurisdiction 

Choice of court + 
possibility for 
court seised to 
transfer 
jurisdiction to 
another Member 
State 

0 

Provide for party 
autonomy and 
thereby enhance 
predictability for 
spouses 

This  option  would 
for  party 
provide 
autonomy 
and 
enhance 
predictability. 
However, 
this 
would  only  be  the 
case  for  the  limited 
number  of  spouses 
who wish to and are 
able to agree on one 
forum  from  the  list 
fora 
possible 
of 
offered 
the 
by 
Regulation  already 
today.  

This  option  would 
enhance 
predictability 
for 
spouses  who  can 
agree  on  a  court. 
those  who 
For 
it 
cannot 
agree; 
legal 
introduces 
uncertainty  as 
the 
decision  to  transfer 
would  depend  on 
the  discretion  of  the 
judges  in  the  two 
States 
Member 
concerned 
the 
in 
individual case. 

for 

option  would 
legal 
all 

This 
enhance 
predictability 
couples 
the 
(notwithstanding 
existence 
an 
of 
agreement).  However,  a 
hierarchy  of  jurisdiction 
grounds  would  reduce 
the  possibility  for  the 
plaintiff to choose from a 
broad  range  of  fora,  and 
hence the broad access to 
court  which  currently 
exists  and  is  considered 
important,  as 
long  as 
Rome  III  does  not  apply 
in all Member States. 

to 
by 

Enhance  access 
court 
consolidating 
different 
proceedings 

family 

Consolidation 
be 
could 
achieved  by 
bringing 
all 
family 
proceedings 
in  one  of  the 
divorce 
fora 
offered by the 
Regulation. 

effect 

on 
Same 
as 
consolidation 
Option  1  but 
the 
limited  number  of 
spouses  wishing  to 
and  able  to  do  so 
in 
could 
advance  which  of 
the  available 
fora 
this  shall  be.  The 
number  of  spouses 
who may be in such 
a  situation  may  be 
be 
expected 

agree 

to 

help 

court 

This  option  would 
to 
further 
consolidate 
for 
those who can agree 
by 
on 
a 
making 
the 
possibility to choose 
a  court  jointly  more 
visible.  If  no  choice 
was 
made, 
consolidation  may 
be 
by 
achieved 
bringing  all  family 
proceedings  in  one 

help 
for 

option  would 
This 
to 
further 
consolidate 
those 
who can agree on a court 
by making the possibility 
to  choose  a  court  jointly 
If  no 
more  visible. 
choice 
was  made, 
consolidation  may  be 
achieved  by  bringing  all 
in 
family  proceedings 
the  single  divorce  forum 
offered 
the 
Regulation. 

by 

21 

 
 
Limit rush to court 

0 

limited. 

this 

Rush to court would 
be  eliminated 
for 
spouses  who  can 
agree  on  a  court 
but 
option 
would  not  have  any 
positive  impact  for 
those  spouses  who 
did  not or  could  not 
choose 
forum 
a 
jointly. 

Ensure 
administration 
justice 

sound 
of 

as 

The  objective 
is 
already 
partially 
achieved 
different 
proceedings 
be 
can 
in 
combined 
the 
one  of 
divorce 
fora 
offered by the 
Regulation. 

combined 

The objective would 
be  better  achieved 
in  Option  1 
as 
different 
because 
could 
proceedings 
be 
in 
the  chosen 
either 
court 
for  spouses 
who  agree  on  a 
court  or  in  one  of 
fora 
the  divorce 
the 
offered 
by 
for 
Regulation 
others. 

Costs savings 

0 

Would  reduce  costs 
those 
for 
only 
spouses  who  agree 
on a court. 

by 

forum, 

of  the  divorce  fora 
the 
offered 
the 
Regulation; 
if 
prefer 
spouses 
another 
it 
could  be  obtained 
transfer 
through 
decided  by  a  judge 
but  this  depends  on 
judicial discretion in 
the 
two  Member 
States concerned. 

for 

Rush  to  court  would  be 
eliminated 
all 
couples as only one court 
at a time could be seised 
by  either  spouse  to  hear 
the divorce case. 

This  option  would  have 
mixed impacts. It would 
have  a  positive  impact 
on  the  administration  of 
justice  for  spouses  who 
can agree on a court and 
combine 
their 
proceedings; it may have 
on 
negative 
couples  who 
cannot 
agree  as  no  flexibility 
would be granted even to 
the applicant to choose a 
court unilaterally. 

impact 

Would 
fully  eliminate 
the extra costs relating to 
rush  to  court  regardless 
of  the  existence  of  a 
choice 
court 
of 
agreement. 

Rush to court would 
be  eliminated 
for 
those  spouses  who 
can agree on a court. 
It  might  be  reduced 
for 
those  spouses 
who cannot agree on 
a court as they know 
that  the  court  seised 
have 
would 
exceptionally 
the 
powers  to  transfer 
jurisdiction 
a 
to 
more 
appropriate 
forum. 

The objective would 
be  achieved  to  a 
similar 
extent 
(same  as  Option  2) 
but 
those 
for 
spouses  who  cannot 
judge 
agree 
the 
could 
transfer 
to 
jurisdiction 
another  Member 
State  where  other 
proceedings 
are 
pending.  However, 
transfer 
the 
may 
possibility 
bring 
an 
important  element 
of  uncertainty  at 
the beginning of the 
proceedings 
and 
trigger  litigation  on 
jurisdiction 
the 
question. 

in 

Would  reduce  costs 
for spouses who can 
agree on a court and 
some 
could 
in 
instances 
reduce 
them  for  those  who 
cannot  do  so  while 
increasing  costs  in 
other cases. 

22 

 
 
 
Political feasibility  

In  the  light  of  the 
requirement 
of 
unanimity  and  the 
varying 
probable 
regarding 
views 
jurisdiction 
in 
matrimonial 
matters, 
including 
choice  of  court,  this 
does 
option 
not 
politically 
seem 
feasible. 

In  the  light  of  the 
requirement 
of 
unanimity  and  the 
varying 
probable 
regarding 
views 
jurisdiction 
in 
matrimonial 
matters, 
including 
choice  of  court  and 
of 
transfer 
this 
jurisdiction, 
does 
option 
not 
seem 
politically 
feasible. 

In the light of 
the 
requirement 
of  unanimity 
and 
the 
probable 
varying 
views 
regarding 
jurisdiction in 
matrimonial 
matters, 
baseline 
scenario 
seems  at  this 
stage  the  best 
possible 
option.  

the 

and 

seem 

choice 

light  of 

In 
the 
the 
requirement 
of 
the 
unanimity 
probable  varying  views 
regarding  jurisdiction  in 
matters, 
matrimonial 
of 
including 
court,  this  option  does 
not 
politically 
feasible.  In  addition,  the 
possible  introduction  of 
of 
a 
hierarchy 
jurisdiction  grounds 
is 
controversial 
very 
among 
stakeholders. 
Finally,  the broad  access 
to  court  was  one  of  the 
crucial  elements  of  the 
final  agreement  on  the 
existing Regulation. 

At this time, Option 1 is the preferred policy given the fact that in line with currently available data, the 
existing  rules  have  proven  to  work  to  a  large  extent  satisfactorily,  and  the  drawbacks  of  the  other 
options make them currently not feasible or desirable. While Option 2 would strengthen party autonomy 
and in particular meet the operational objective to introduce the possibility for spouses to choose a court 
by agreement, this only concerns a limited number of spouses. In addition, the benefits brought by this 
option  would  not  outweigh  the  risks  inherent  in  opening  discussions  on  matrimonial  matters  at  this 
moment in time. Option 3 would reach that same objective and encounter the same risk; the possibility 
for  a  court  to  transfer  jurisdiction  to  another  Member  State,  while  having  certain  advantages  in  good 
administration  of  justice,  would  entail  legal  uncertainty  and  may  trigger  litigation  at  the  beginning  of 
the  proceedings.  It  is  questionable  whether  the  problem  of  rush  to  court,  which  is  limited  to  certain 
Member  States,  would  justify  introducing  these  elements  of  uncertainty  and  risk  of  litigation  for  all 
Member  States.  Option  4  would  reach  the  same  objective  as  Option  2;  however,  a  hierarchy  of 
jurisdiction rules  would reduce the broad access to  court which currently exists.  As long  as Rome III 
does  not  apply  in  all  Member  States,  it  is  important  that  spouses  continue  to  have  a  number  of  fora 
available  as  the  outcome  of  proceedings  can  be  different,  depending  where  proceedings  are  brought. 
Therefore,  it  appears  that  at  this  stage,  because  of  the  limited  data  to  underpin  the  identification  of 
workable solutions there is limited added value in proposing changes on these matters. Furthermore, in 
the light of the requirement of unanimity any change to the current jurisdictional regime on matrimonial 
matters  seems  highly  difficult,  taking  into  account  the  divergences  between  Member  States'  national 
family laws and their respective views on how to deal with matters of jurisdiction. Options 2 through 4 
therefore  do  not  seem  politically  feasible  at  this  stage.  As  the  negotiations  in  the  Council  on  the 
matrimonial  property  regimes  showed,  there  is  currently  no  possibility  to  unanimously  agree  on  a 
proposal which concerns  divorce  of a marriage or  any related aspects. Given the potential  benefits  of 
improvements  to  the  Regulation  on  this  matter,  the  matter  may  be  re-considered  in  the  future  on  the 
basis  of  further  evidence  gathered,  at  a  time  when  the  national  laws  of  the  Member  States  may  have 
evolved such that a consensus is more likely to be achieved. 

23 

 
 
2. 

THE  OPERATION  OF  THE  REGULATION  IN  THE  INTERNATIONAL  LEGAL 
ORDER 

2.1.  Problem definition 

Risk of difficulties in finding a suitable court to settle divorce for EU citizens living in a third State 
A specific study57 analysing the situation of EU citizens who live in a third State but retain strong links 
with  a  certain  Member  State  and  want  to  get  divorced  highlighted  several  problems:  citizens  either 
cannot get access to a court at all, to a court in the EU or they cannot have their judgment (obtained in a 
third country) recognised in the EU. 

In situations where the spouses are not habitually resident in the territory of a Member State and do not 
have a common EU nationality, the Regulation does not provide any basis of jurisdiction. International 
jurisdiction  is  established  on  the  basis  of  the  national  rules  of  the  Member  States  (so-called  "residual 
jurisdiction"). In practical terms this means that in about half of the Member States the EU nationality 
of a plaintiff spouse alone is sufficient to bring proceedings in his/her Member State of nationality. In 
the  other  half,  it  is  not  possible  for  residents  of  third  countries  to  bring  proceedings  in  their  Member 
State of nationality alone, but only in conjunction with other connecting factors. In the end, 24 Member 
States do provide residual jurisdiction for the case described above. In the remaining 4 Member States, 
this may lead to situations where no court at all in the EU has jurisdiction to deal with an application for 
divorce  because  of  the  different  criteria  being  used  to  establish  it;  this  forces  spouses  to  file  their 
divorce proceedings in a third State if that State has jurisdiction under its own law. 

Since a decision issued in a third State cannot be recognised in a Member State pursuant to the Brussels 
IIa Regulation, but only pursuant to national rules or applicable international treaties, divorcing, spouses 
could  face  problems  to  have  their  divorce  recognised  in  their  respective  countries,  and  it  can  even 
happen that their divorce will be recognised in the home Member State of one of the spouses but not in 
the home Member State of the other. This difference in civil status has a negative impact on the freedom 
of movement and the right to respect for a person's private and family life. A person wishing to remarry 
in a Member State cannot do so if the divorce pronounced in a third State is not recognised under that 
Member State's national law while at the same time that Member State did not provide a forum for the 
divorce  to  be  pronounced  there.  In  other  words,  Union  law  regulates  only  the  larger  part  of  the 
international jurisdiction of the Member States' courts, leaving a remaining small part to national law. 

The  national  experts  in  the  framework  of  the  evaluation  study  and  practitioners  in  the  public 
consultation both criticised the Regulation for its too complex and impractical solution in cases where 
the defendant spouse is not habitually resident in a Member State and the spouses are not nationals of 
the same Member State. Some guidance on this matter was given by the CJEU58 but the situation is still 
perceived as unsatisfactory. 

In terms of costs, spouses need to seek advice of a specialised lawyer to investigate foreign law systems 
or,  as  the  case  may  involve  investigation  in  several  Member  States,  the  costs  can  be  multiplied.  The 
costs  for  specialised  legal  advice  vary  considerably  across  the  EU.  In  the  evaluation  study,  the 
additional  costs  for  international  cases  have  been  estimated  to  range  from  € 500  (in  Hungary)  to 
€ 12,500 (in the UK) per case.59 

Example: the German/Dutch couple living in a third State 

A German/Dutch couple have lived for some years in a third State. As their relationship deteriorates, 

57 Nuyts et al. (2007): Review of the Member States’ Rules concerning the ‘Residual Jurisdiction’ of their courts in Civil and 
Commercial  Matters  pursuant  to  the  Brussels  I  and  II  Regulations,  study  commissioned  by  the  European  Commission, 
pp. 94-97. 
58 CJEU 29 November 2007, Case C-68/07 – Kerstin Sundelind-Lopez v. Miguel Enrique Lopez Lizazo. 
59 Analytical Annexes to the Evaluation Study, p. 262, see supra note 31. 

24 

 
 
                                                            
the German wife would like to divorce, preferably before a German court. However, she cannot apply 
for  divorce  in  Germany  or  in  any  other  Member  State.  None  of  the  grounds  of  jurisdiction  of  the 
Brussels  IIa  Regulation  is  applicable  since  the  couple  are  not  habitually  resident  in  a  Member  State 
and are not of common nationality. In such circumstances, the courts of the Member States may avail 
themselves  of  their  national  rules  of  jurisdiction.  Under  national  law,  the  German  courts  have 
international  jurisdiction if one of the spouses is German.  However, while the  Dutch husband  could 
bring divorce proceedings in Germany based on these rules, the German wife cannot apply for divorce 
in  Germany  under  the  German  rules  of  jurisdiction,  since  the  Dutch  husband  may  not  be  sued  in 
Germany  under  national  law  according  to  the  Regulation.  Nor  can  the  wife  apply  for  divorce  in  the 
Netherlands, since Dutch law does not provide for jurisdiction in these circumstances. Consequently, 
the German wife is unable to apply for divorce in any Member State. Even if the courts of the third 
State of the couple's residence happen to have jurisdiction to deal with the matter, it may be difficult to 
have a divorce pronounced in the third State recognised in Germany. It is also possible that the divorce 
will  be  recognised  in  Germany  but  not  in  the  Netherlands,  with  the  effect  that  the  spouses  are 
considered to be still married in the Netherlands while they are considered divorced in Germany. 

Parallel litigation and risk of irreconcilable judgments when the same matter is pending before a court 
in a Member State and a court in a third country 

In some cases, proceedings between the same parties on the same subject matter are pending in parallel 
(lis pendens) before the courts of an EU Member State and the courts of a non-EU country. The expert 
group pointed out that in this situation, a court of a Member State does not have any discretion under 
the Regulation, according to the current rules, to take into account the proceedings pending in a third 
State. This can eventually lead to two irreconcilable judgments. 

2.2. 

Scale of the problem 

There is little indication about the scale of the problem. The number of potentially affected people can 
be based on the numbers of EU citizens who live in third countries. There is no reliable single source of 
data  for  this  group,  but  rather  disparate  sources  which  cover  the  main  destination  countries60.  It  is 
estimated  that  more  than  20  million  European  citizens  live  permanently  in  a  non-EU  country.  This 
number  has  to  be  narrowed  down  to  those  persons  who  are  married,  and  the  rate  of  marriage 
breakdown. 
Within the EU61, every year around 10% of the total number of divorces relate to international couples. 
One may assume that EU citizens living in third States would largely behave in the same way as those 
within the EU. 

2.3. 

Subsidiarity 

The  creation  of  a  new  rule  on  unified  residual  jurisdiction  and/or  forum  necessitatis  is  based  on 
Article 81  para. 2  (c)  TFEU  which  establishes  shared  EU  competence  for  common  jurisdiction  rules 
which  has  already  been  exercised.  Currently,  for  spouses  living  outside  the  EU,  the  Regulation  only 
contains  a  uniform  jurisdiction  rule  if  they  have  a  common  EU  nationality.  In  all  other  cases, 
jurisdiction for their divorce is  left  to the national law of their respective States. Member States have 
diverse  policies  as  regards  this  issue  and  cannot  alone  remedy  the  situation.  As  the  problem  affects 
solely  couples  with  two  different  EU  nationalities  and  couples  involving  third-State  nationals,  the 
solution goes beyond the powers of a single Member State. The need for EU action is therefore even 
stronger  for  these  couples  than  it  is  for  spouses  having  the  same  EU  nationality  (and  for  whom  the 
Regulation already provides uniform jurisdiction). 

60 http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/474441/IPOL-AFCO_ET(2013)474441_EN.pdf. 
61  Eurostat, 
explained:  Marriage 
explained/index.php/Marriage_and_divorce_statistics, data extracted in June 2015. 

statistics, 

Statistics 

divorce 

and 

http://ec.europa.eu/eurostat/statistics-

25 

 
 
                                                            
The  introduction  of  a  discretionary  rule  dealing  with  parallel  proceedings  pending  in  a  Member  State 
and  in  a  third  State  (lis  pendens)  can  be  based  on  Article 81  para. 2  (c)  TFEU  (common  jurisdiction 
rules)  together  with  Article 81  (f) TFEU  (elimination  of  obstacles  to  the  proper  functioning  of  civil 
proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in 
the Member States). Some Member States already have such a rule in their national law and exercise it; 
others  have  it  but  are  uncertain  whether  they  may  decline  jurisdiction  attributed  to  them  by  the 
Regulation in favour of a third State. Others do not have a rule on lis pendens vis-à-vis third States and 
have  no  intention  to  create  one.  This  leads  to  an  unequal  application  of  the  jurisdiction  rules  of  the 
Regulation in the different Member States which can only be remedied by EU action. 

2.4.  Objectives 

General objectives: 

(a)  to ensure equal access to justice in the Union for both spouses 
(b) to enhance sound and efficient administration of justice 

Specific objectives: 

(a)  to simplify the regulatory framework on international jurisdiction in divorce cases in the EU and 

its Member States 

(b) to introduce flexibility for courts to take into account proceedings pending in third States. 

2.5.  Description of Policy Options 
Option 1:Baseline scenario 

This policy option assumes that no legislative initiatives bringing about substantive changes would take 
place at EU level. This does not exclude, however, a clarification of the Regulation's rules determining 
in  which  cases  and  under  which  conditions  Member  States  may  apply  their  rules  on  residual 
jurisdiction,  accompanied  by  further  explanations  in  a  revised  version  of  the  Practice  Guide  on  the 
Regulation which was published, and which is updated as necessary, by the Commission. 

Option 2: Creation of a uniform and autonomous rule on forum necessitatis for spouses not having a 
common  EU  nationality  and  living  in  a  third  State  combined  with  the  deletion  of  the  reference  to 
residual jurisdiction under national law, and introduction of a discretionary lis pendens rule vis-à-vis 
third countries 

This option would introduce a rule creating a forum necessitatis while deleting the current reference to 
residual jurisdiction under national law. Where no court of a Member State has jurisdiction under the 
Regulation, the courts of a Member State would be allowed, on an exceptional basis provided for in the 
Regulation,  to  hear  the  case  if  proceedings  cannot  be  brought  in  a  third  State  with  which  the  case  is 
closely  connected  (because  divorce  cannot  be granted  at  all there)  or  would  be  practically  impossible 
(e.g. because of war), provided that the case has a sufficient connection with the Member State of the 
court seised. This rule would ensure that each spouse of a couple not having the same EU nationality 
and living in a third country has a forum to obtain a divorce, but it would only provide a forum within 
the EU if the spouses cannot obtain a divorce in a third country. If the spouses could, e.g., obtain a 
divorce in the third State of their common habitual residence, the forum necessitatis would not apply. 

Furthermore, this option would entail the introduction of a possibility for the courts in a Member State 
to take into account proceedings pending in third States by granting a discretionary stay of proceedings 
if there is an action involving the same parties and the same subject matter (divorce, legal separation or 
marriage annulment) pending in a non-Member State, provided that there is a reasonable prospect that 
the resulting judgment will be recognised in the Member State(s) concerned. 

26 

 
 
Option 3: Creation of a uniform and autonomous rule on residual jurisdiction for spouses not having a 
common  EU  nationality  and  living  in  a  third  State,  combined  with  the  deletion  of  the  reference  to 
residual jurisdiction under national law, and introduction of a discretionary lis pendens rule vis-à-vis 
third countries 

This option would introduce a uniform and exhaustive rule on residual jurisdiction for cases where the 
spouses  do  not  have  a  common  EU  nationality  and  live  in  a  third  State.  This  rule  would  replace  the 
national rules on residual jurisdiction existing in most Member States and close a gap for nationals of 
those Member States who do not provide jurisdiction for such cases. It ensures access to a court in the 
EU for spouses who live in a third State but retain links with a certain Member State of which they are 
nationals or in which they have resided for a certain period, even if the spouses could find a forum in 
a third State. The scope of this rule would correspond to the general rule of jurisdiction (Article 3) and 
would  apply  to  divorce,  legal  separation  and  marriage  annulment.  The  rule  of  the  Regulation  which 
currently protects citizens of EU Member States and persons habitually resident in a Member State from 
some of the exorbitant jurisdiction grounds of national law which has given rise to confusion could be 
deleted because the courts of the Member States would no longer be allowed to use those national rules 
in international divorce cases. 

Furthermore, this option would introduce a discretionary lis pendens rule vis-à-vis third countries like 
Option 2. 

Option 4: No  harmonisation  of  residual  jurisdiction,  but  deletion  of  Article  6  which  protects  a 
defendant having EU nationality or domicile from being sued in another Member State under residual 
jurisdiction  rules  of  national  law  and  introduction  of  a  discretionary  lis  pendens  rule  vis-à-vis  third 
countries 

This option would not add a rule on forum necessitatis or residual jurisdiction, and it would leave the 
residual jurisdiction  rules  provided by the national law of the Member States intact. The only  change 
would  be  the  deletion  of  the  protective  rule  in  Article 6  which  limits  the  exercise  of  these  national 
jurisdiction  rules  and  protects  defendants  having  an  EU  nationality  or  domicile  from  being  sued  in 
another  Member  State  under  the  jurisdiction  rules  of  national  law  (while  they  could  still  bring 
proceedings  themselves  there).  As  in  Options  2  and  3,  a  discretionary  lis  pendens  rule  vis-à-vis  third 
States would be added. 

2.6.  Analysis of impact of Policy Options 

2.6.1.  Option 1: Baseline scenario 

For the impacts of this option see problem definition. There are no other legislative initiatives at global 
or Union levels forthcoming on these issues. As the mobility of people in general is increasing, it may 
be  assumed  that  also  the  number  of  spouses  living  outside  the  EU  but  having  a  connection  with  a 
Member State and wishing to file for divorce there will increase.  Infringement proceedings are not an 
appropriate tool with a view to improving the operation of the Regulation in the area discussed here as 
there is currently no rule in this Regulation offering jurisdiction for spouses not having a common EU 
nationality and living in a third State. As for the operation of the Articles allowing the use of national 
jurisdiction  rules  and  protecting  the  defendant  and  their  interaction,  infringement  proceedings,  which 
need  to  be  based  on  a  perceived  structural  deficit  in  the  implementation  of  the  Regulation,  would 
promise little success as the provisions are admittedly unclear. 

2.6.2.  Option  2:  Creation  of  a  uniform  and  autonomous  rule  on  forum  necessitatis  for  spouses  not 
having a common EU nationality and living in a third State, combined with the deletion of the 
reference  to  residual  jurisdiction  under  national  law,  and  introduction  of  a  discretionary  lis 
pendens rule vis-à-vis third countries 

Effectiveness  to  achieve  objectives:  The  deletion  of  the  reference  to  national  residual  jurisdiction 
combined with the creation of a forum necessitatis rule would have a positive impact on ensuring access 
to a court for spouses not having a common EU nationality who are living in a third country but have a 

27 

 
 
sufficient connection to the EU by way of their previous common habitual residence or by way of the 
nationality (or, in the case of the UK and Ireland, the ‘domicile’) of one of the spouses or in situations 
where a risk of denial of access to justice would exist outside the EU. It would no longer allow the use 
of national rules on residual jurisdiction but ensure that spouses not having a common EU nationality 
living in a third State have access to a court at all, albeit perhaps in the third State, and only if that is not 
the case, to an EU court in order to obtain a divorce, legal separation or the annulment of their marriage. 

Moreover, the option would end the existing general inequality illustrated by the example and created 
by the current text of the Regulation, namely that only one spouse has access to the courts of a Member 
State under residual jurisdiction provided by national law while the other spouse doesn't. The risk that 
the judgment rendered in the EU will not be recognised by the third State of which one or both of the 
spouses  are  nationals  or  where  the  spouses  were  habitually  resident  if  that  State  also  has  jurisdiction 
under  its  own  law  is  minimised  because  the  forum  necessitatis  will  by  definition  only  apply  if 
proceedings  could  not  be  brought  in  that  third  State.  This  option  does  not  solve  the  problem  that  a 
divorce pronounced in a third State might be recognised in one EU Member State but not in the other if 
the spouses are nationals of different EU Member States. 

The objective of simplification would be reached at the jurisdiction level because the varying national 
residual  jurisdiction  rules  would  be  replaced  by  a  single  and  uniform  rule  offering  access  to  the  EU 
courts  to  all  citizens  under  the  same  conditions  and  ensuring  that  no  denial  of  justice  occurs.  As  a 
corollary of this harmonisation, the Regulation's current rule protecting nationals of EU Member States 
and persons habitually resident in a Member State from the exorbitant bases of jurisdiction contained in 
the national law of the  Member States  can  be deleted.  The court  seised, however,  would still need to 
examine  whether  proceedings  could  be  brought  in  a  third  State  before  being  allowed  to  base  its 
jurisdiction on the forum necessitatis rule. 

In  cases  where  the  divorce  judgment  pronounced  in  a  third  State  is  likely  to  be  recognised  in  the 
Member  States  concerned,  the  proposed  rule  on  lis  pendens  vis-à-vis  third  States  would  enhance  the 
efficiency of justice by allowing the courts of a Member State having jurisdiction under the Regulation 
to give priority to the proceedings brought earlier in that third State. 

Fundamental rights: Access to justice would be improved for spouses with a sufficient connection to 
the  EU.  If  a  divorce  is  obtained  in  a  third  State,  though,  the  problem  described  above  will  persist, 
namely that the divorcees' civil status may vary from one Member State to another, thereby hampering 
their right to free movement and to respect for private and family life. 

Costs  savings:  This  option  would  not  result  in  cost  savings  related  to  specialised  legal  advice  as  it 
would  be  necessary  to  assess  whether  the  spouses  cannot  bring  their  divorce  proceedings  in  a  third 
State. 

Stakeholders' views: The majority of respondents (78% i.e. 132 of 170 responses) believe that in the 
cases  outlined  above,  the  Regulation  should  allow  an  EU  court  to  exercise  its  jurisdiction.  Among 
practitioners,  80%  think  that  the  Regulation  should  offer  a  forum  necessitatis  instead  of  leaving 
jurisdiction to the diverse rules of the Member States on residual jurisdiction. This resembles responses 
from  private  individuals  (78%)  and  from  academics  (67%).  Moreover,  the  majority  of  those  with 
practical  experience  agree  that  the  Regulation  should  ensure  access  to  justice  through  a  forum 
necessitatis while no longer allowing the use of national rules on residual jurisdiction. A harmonisation 
through deletion of the permission to use national jurisdiction rules combined with a forum necessitatis 
was  also  the  proposal  favoured  by  the  expert  group  which  advised  the  Commission  as  the  best  way 
forward. Of those Member States that responded, five (CZ, DE, NL, PL, PT) were in favour of creating 
a forum necessitatis and two against (FR and BE who both denied the need for it because their national 
law already provides for a forum necessitatis based on nationality). 

Political feasibility: This option would be difficult to accept for some Member States given that there 
are widely divided views on the need for unification and little evidence. In addition, given the varying 
definition of marriage in the national laws of Member States and their resulting difficulty in applying 

28 

 
 
the  instrument  to  the  divorce  of  other  forms  of  marriage,  e.g.  same-sex  marriages,  work  towards  a 
consensus  on  any  jurisdiction  rule  in  matrimonial  matters  is  difficult  at  this  time.  See  chapter  2.2. 
concerning matrimonial matters. 

2.6.3.  Option 3: Creation of a uniform and autonomous rule on residual jurisdiction for spouses  not 
having a common EU nationality and living in a third State, combined with the deletion of the 
reference  to  residual  jurisdiction  under  national  law,  and  introduction  of  a  discretionary  lis 
pendens rule vis-à-vis third countries 

Effectiveness to achieve objectives: The creation of an autonomous rule on residual jurisdiction would 
have  a  strong  positive  impact  on  ensuring  access  to  a  suitable  court  in  the  EU  for  spouses  not 
having a common EU nationality who are living in a third country but have a close  connection to the 
EU by way of their previous common habitual residence or by way of the nationality (or, in the case of 
the UK and Ireland, the ‘domicile’) of one of the spouses. It would ensure that they both have access to 
an EU court in order to obtain a divorce of their marriage, even if the national jurisdiction rules of the 
relevant  Member  State  do  not  allow  residents  of  third  countries  to  bring  proceedings  in  that  Member 
State. The option would end the existing general inequality illustrated by the example and created by the 
current text of the Regulation, namely that only one spouse might have access to the courts of a Member 
State under the residual jurisdiction rules of national law while the other spouse doesn't. 

Like  the  previous  option,  this  option  would  have  a  strong  positive  impact  on  simplifying  the 
regulatory framework on international jurisdiction for divorce for spouses not having a common EU 
nationality  who  are  living  in  a  third  country  by  establishing  clear  harmonised  rules  on  residual 
jurisdiction  for  all  Member  States.  As  a  corollary  of  this  harmonisation,  the  Regulation's  current  rule 
protecting nationals of EU Member States and persons habitually resident in a Member State from the 
exorbitant bases of jurisdiction contained in the national law of the Member States can be deleted. The 
existence of a uniform jurisdiction rule makes the forum even more predictable than under the previous 
option only providing a forum necessitatis, and the article protecting respondents from being sued "by 
surprise"  in  a  forum  with  which  they  have  only  weak  or  no  connections  is  thus  no  longer  necessary. 
These measures would decrease the amount of investigation or possible confusion caused by consulting 
the law of each Member State. This option does increase the risk, however, that parties who thus have 
access to a court in the EU obtain a judgment which may not be recognised by the third State of which 
one or both of the spouses are nationals or where the spouses were habitually resident if that State also 
has  jurisdiction  under  its  own  law.  This  option  also  does  not  solve  the  problem  that  a  divorce 
pronounced in a third State might be recognised in one EU Member State but not in the other. 

In  cases  where  the  divorce  judgment  pronounced  in  a  third  State  is  likely  to  be  recognised  in  the 
Member  States  concerned,  the  proposed  rule  on  lis  pendens  vis-à-vis  third  States  would  enhance  the 
efficiency of justice by allowing the courts of a Member State having jurisdiction under the Regulation 
to give priority to the proceedings brought earlier in that third State. 

Fundamental  rights:  Access  to  justice  would  be  improved  for  spouses  not  having  a  common  EU 
nationality with a close connection to the EU. It would be ensured that they can obtain a divorce within 
the  EU  which  is  then  automatically  recognised  by  operation  of  law  in  all  other  EU  Member  States. 
There is a risk, however, that the judgment rendered in the EU will not be recognised by the third State 
of which one or both of the spouses are nationals or where the spouses were habitually resident if that 
State claims jurisdiction under its own law. 

Costs  savings:  For  all  spouses  living  abroad  but  retaining  a  sufficient  connection  with  the  EU  this 
option  would  decrease  the  amount  of  investigation  into  the  law  of  each  Member  State  and  thereby  it 
would reduce costs estimated to range from € 500 to € 12,500 per case. 

Stakeholders' views: A significant majority (77%) of respondents maintain that it would be useful to 
address the lack of a uniform rule on residual jurisdiction for all cases. In particular, stakeholders with 
practical experience of the Regulation answered positively to this question. Of those Member States that 
responded, three (NL, PL, PT) were in favour of creating a uniform rule on residual jurisdiction if no 

29 

 
 
court in a Member State has jurisdiction under the Regulation and three against: FR and BE both denied 
the need for it because their national law already provides for residual jurisdiction based on nationality, 
CZ gave no reasons, and DE stated that a redraft of Articles 6 and 7 would be sufficient and could leave 
the national rules on residual jurisdiction intact. The UK also expressed hesitations.  

Political feasibility: This option would be difficult to accept for some Member States given that there 
are widely divided views on the need for unification and little evidence of the scale of the problem. In 
addition,  given  the  varying  definition  of  marriage  in  the  national  laws  of  Member  States  and  the 
diverging views of Member States in how to deal with matters of jurisdiction as a result thereof it seems 
difficult to work towards a unanimous agreement on any jurisdiction rule in matrimonial matters at this 
time. See chapter 2.2. concerning matrimonial matters. 

2.6.4.  Option 4: No harmonisation of residual jurisdiction but deletion of Article 6 which protects a 
defendant  having  an  EU  nationality  or  domicile  from  being  sued  in  another  Member  State 
under  residual  jurisdiction  rules  of  national  law  and  introduction  of  a  discretionary  lis 
pendens rule vis-à-vis third countries 

Effectiveness to achieve objectives: The deletion of Article 6 which protects a defendant having EU 
nationality  or  domicile  from  being  sued  in  another  Member  State  under  residual  jurisdiction  rules  of 
national law would have a positive impact on ensuring equal access to a court in the EU for spouses 
not having a common EU nationality who are living in a third country but have a sufficient connection 
to the EU by way of their previous common habitual residence or by way of the nationality (or, in the 
case  of  the  UK  and  Ireland,  the  ‘domicile’)  of  one  of  the  spouses.  In  the  example  given  above,  this 
option would allow not only the Dutch husband but also the German wife to bring divorce proceedings 
in Germany. 

This option would leave the national rules on residual jurisdiction intact and open them to both spouses 
by removing the protective limitation. The option would not solve the problem, however, that currently 
only half of the Member States have rules on residual jurisdiction which offers their nationals living in a 
third State a forum without any further conditions. So while access to justice would be equal for both 
spouses  of  a  couple,  there  would  still  be  couples  having,  and  others  not  having  access  to  a  residual 
forum in the EU. 

The  regulatory  framework  would  be  simplified  by  this  deletion  because  the  relationship  between  that 
protective  article  and  the  article  allowing  the  use  of  national  jurisdiction  rules  was  interpreted  in 
different ways, thus giving rise to confusion and therefore delays. Legal clarification was requested by 
many.  

However, this option would not deal with the current situation that some spouses who are nationals of 
different  EU  Member  States  are  forced  to  file  for  divorce  in  a  third  State  because  there  is  no 
jurisdiction in any EU Member State under the Regulation and under national law. Moreover, like the 
other  options,  it  would  not  solve  the  problem  that  a  divorce  pronounced  in  a  third  State  might  be 
recognised in one EU Member State but not in the other. 

In cases where there is jurisdiction in the EU under the Regulation and a divorce judgment pronounced 
in a third State is likely to be recognised in the Member States concerned, however, the proposed rule 
on lis pendens vis-à-vis third States would enhance the efficiency of justice by allowing the courts of a 
Member  State  having  jurisdiction  under  the  Regulation  to  give  priority  to  the  proceedings  brought 
earlier in that third State. 

Fundamental rights: The protection of the fundamental right of access to justice would be somewhat 
improved  for  citizens  with  a  close  connection  to  the  EU  (through  nationality/’domicile’  or  previous 
habitual  residence).  It  would  be  ensured  that  they  can  both  obtain  a  divorce  within  the  EU  (albeit 
perhaps  not  in  their  own  Member  State  of  nationality)  which  is  then  automatically  recognised  by 
operation of law in all other EU Member States. Inequality between the spouses in one single couple in 
this respect would be eliminated. However, there would still remain unequal access to court in the EU 
for spouses in general. In addition, spouses in particular in couples formed of EU  nationals from two 

30 

 
 
different  Member  States  would  in  the  future  be  exposed  to  being  sued  in  a  "surprise  jurisdiction" 
provided by the national law of the Member State of the other spouse. 

Costs savings: For the applicant spouse living outside the EU but retaining a strong connection with 
the EU, this option would decrease the amount of investigation into the law of each Member State in 
order to find jurisdiction and thereby it would reduce costs estimated to  range from € 500 to € 12,500 
per case. For the defendant spouse, however, who has to face proceedings in a "surprise" jurisdiction 
provided  for  by  the  national  law  of  a  Member  State,  additional  costs  for  specialised  legal  advice  are 
likely to arise. 

Stakeholders' views: During the public consultation, this option of deleting the protective article was 
not proposed by anyone. Only one Member State (DE) mentioned – without providing further details – 
that a mere redraft of the Articles allowing the use of Member States' rules on residual jurisdiction and 
protecting  defendants  with  EU  nationality  or  residence/domicile62  could  solve  the  problems  while 
leaving the rules on residual jurisdiction of the Member States in their national law intact. 

Political feasibility: This option is likely to be difficult to accept for some Member States given that 
there  are  widely  divided  views  on  the  need  for  unification  and  little  evidence  on  the  scale  of  the 
problem.  Moreover,  as  the  so-called  exorbitant  grounds  of  jurisdiction  of  a  single  State  under  its 
national law are often considered politically undesirable by other States, there will be little incentive for 
them to agree to the abolition of a rule protecting their own nationals against the exorbitant jurisdiction 
rules  of  other  States.  In  addition,  given  the  varying  definition  of  marriage  in  the  national  laws  of 
Member States and diverging views of Member States in how to deal with matters of jurisdiction as a 
result  thereof  it  seems  difficult  to  work  towards  a  unanimous  agreement  on  any  jurisdiction  rule  in 
matrimonial matters at this time. See chapter 2.2. concerning matrimonial matters. 

2.7 

Comparing the Options and preferred Policy Option 

Objectives/Impacts 

Option 1 

Option 2 

Option 3 

Option 4 

Baseline 
scenario 

of 

a 
Creation 
uniform 
and 
autonomous  rule  on 
necessitatis 
forum 
for 
not 
spouses 
having  a  common 
EU  nationality  and 
third 
living 
in  a 
State, 
combined 
with  the  deletion  of 
the 
to 
reference 
residual  jurisdiction 
under  national  law, 
and  introduction  of 
a  discretionary 
lis 
pendens  rule  vis-à-
vis third countries 

of 

a 
Creation 
uniform 
and 
autonomous  rule  on 
residual  jurisdiction 
for 
not 
spouses 
having  a  common 
EU  nationality  and 
living 
third 
in  a 
State, combined with 
the  deletion  of  the 
reference  to  residual 
under 
jurisdiction 
national 
law,  and 
introduction  of  a 
discretionary 
lis 
pendens  rule  vis-à-
vis third countries 

Ensure equal access to 
court for both spouses 

three 

As 
Member 
States  do  not 
a 
provide 
forum 
for 
their 
nationals 
living 

62 Articles 6 and 7. 

a 

This  option  would 
have 
positive 
impact  on  ensuring 
access  to  a  court  for 
spouses  not  having  a 
common 
EU 
nationality  who  are 
third 
living 

in 

a 

This  option  would 
ensure  equal  access 
to  a  court  in  the  EU 
not 
spouses 
for 
having a common EU 
nationality  who  are 
living 
third 
country  but  have  a 

in 

a 

31 

No  harmonisation 
residual 
of 
jurisdiction 
but 
deletion  of  Article 
6  which  protects  a 
defendant  having 
an  EU  nationality 
or  domicile  from 
being 
in 
another  Member 
State 
under 
residual 
jurisdiction 
rules 
of national law and 
introduction  of  a 
discretionary 
lis 
pendens  rule  vis-à-
vis third countries 

sued 

This  option  would 
enhance 
equal 
access  (and  thereby 
improve  the  status 
quo) to a court in the 
EU  for  spouses  not 
having  a  common 
EU  nationality  who 

 
 
                                                            
abroad,  there 
will  still  be 
couples  who 
would 
not 
have  access 
to  an  EU 
court  (which 
would 
depend 
the 
diverging 
national 
rules). 

on 

Enhance 
the 
administration 
justice 

sound 
of 

0 

Simplify 
the 
regulatory  framework 
international 
on 
jurisdiction  in  divorce 
cases 

the 
of 

A  redraft  of 
the 
two 
Articles 
allowing 
use 
national 
residual 
jurisdiction 
and 
protecting 
EU 
defendants 
being 
from 
sued 
a 
in 
"surprise 
jurisdiction" 
under 
national 
law 
could  clarify 
their 
relationship, 
thereby 
simplifying 
and 
enhancing 
their 
application. 

Protect 
rights 

fundamental 

0 

close  connection 
the EU. 

to 

have 

are  living  in  a  third 
country  but  have  a 
close  connection  to 
the 
Both 
EU. 
spouses  of  a  couple 
the 
would 
forum 
same 
available,  but  still 
there  would  be 
couples  who  would 
not  have  access  to 
an EU court (which 
would  depend  on 
the 
diverging 
national rules). 

Same 
Option 2 

impact 

as 

Same 
Option 2. 

impact 

as 

This  option  would 
have 
strong 
a 
positive  impact  as  it 
for 
provides 
a 
residual 
uniform 
jurisdiction 
rule 
throughout the EU. 

This  option  would 
have  some  positive 
impact:  Compared 
to  the  status  quo  it 
would  only  delete 
the 
Article protecting 
EU  defendants  from 
being 
in  a 
sued 
"surprise 
jurisdiction"  under 
national  law  but  not 
simplify 
the 
identification  of  the 
national  jurisdiction 
rules. 

This  option  would 
have a strong positive 
on 
impact 
rights, 
fundamental 

a 

This  option  would 
positive 
have 
impact 
on 
fundamental  rights, 

country  but  have  a 
sufficient  connection 
to the EU, but only if 
they  cannot  bring 
their  proceedings  in 
the  third  State  (i.e., 
is 
because  divorce 
legally 
impossible 
there  or  because  of 
war). 

On  the  other  hand, 
this  option  would 
ensure  equal  access 
to a court in the EU to 
spouses  of  all  EU 
nationalities 
the  EU, 
throughout 
the 
provided 
that 
"necessity"  for 
this 
forum is given... 

The  lis  pendens  rule 
would  help  avoiding 
parallel  proceedings 
on  the  same  matter 
and  thereby  allow  for 
a  better  coordination 
of 
pending 
proceedings. 

a 

This  option  would 
have 
positive 
impact  as  it  provides 
for  a  uniform  rule 
throughout the EU. In 
order to use the forum 
necessitatis, however, 
the  court  needs 
to 
examine first whether 
it 
to 
bring  proceedings  in 
a third State. 

impossible 

is 

This  option  would 
have 
positive 
impact  since  it  would 
to 
enhance 

access 

a 

32 

 
 
a 

court 

ground 

court  in  a  situation 
where  there  is  a  risk 
of  denial  of  justice. 
On  the  other  hand,  it 
would  reduce  access 
to 
under 
national  law  in  those 
Member States where 
nationality  currently 
is 
for 
jurisdiction  in  third-
State  related  cases. 
Addressing 
only 
jurisdictional  matters, 
it  would  not  address 
the  current  negative 
impact 
the 
freedom of movement 
right 
and 
to 
respect 
for  private 
and  family  life  which 
is  created  by  unequal 
third 
recognition  of 
State 
divorces 
throughout the Union. 

the 

on 

the 

State 

since  it  would  ensure 
access to court. There 
is  a  risk,  however, 
that 
judgment 
rendered  in  the  EU 
will not be recognised 
by  the  third  State  of 
which  one  or  both  of 
the 
are 
spouses 
nationals or where the 
spouses 
were 
habitually  resident  if 
that 
claims 
jurisdiction  under  its 
own  law.  Addressing 
jurisdictional 
only 
matters, 
this  option 
would not address the 
negative 
current 
impact 
the 
freedom of movement 
and 
to 
respect for private and 
family  life  which  is 
created  by  unequal 
third 
recognition  of 
State 
divorces 
throughout the Union. 

right 

the 

on 

only 

have 

it  would 
since 
enhance 
equal 
access to court. Both 
spouses  of  a  couple 
the 
would 
same 
forum 
available,  but  still 
there  would 
be 
couples  who  would 
not  have  access  to 
an 
court. 
EU 
Moreover, 
addressing 
jurisdictional 
matters,  this  option 
would  not  address 
the  current  negative 
the 
impact 
freedom 
of 
movement  and  the 
right  to  respect  for 
private  and  family 
life which is created 
by 
unequal 
recognition  of  third 
divorces 
State 
throughout 
the 
Union. 

on 

Costs savings 

0 

For  all  spouses  living 
outside  the  EU  and 
retaining  strong  links 
with  an  EU  Member 
State. 

for 

Mainly 
the 
applicant spouse but 
not for the defendant 
who may be sued in 
a 
"surprise 
jurisdiction". 

cost 

No 
savings 
related  to  specialised 
legal  advice  as 
it 
would be necessary to 
assess  whether 
the 
spouses  cannot  bring 
their 
divorce 
proceedings in a third 
State. 

Political feasibility 

In the light of 
the 
requirement 
of  unanimity 
and 
the 
probable 
varying 
views 
regarding 
jurisdiction 
in 
matrimonial 
matters, 
baseline 
scenario 
seems  at  this 
stage the best 
possible 
option.  

the 

 

 

Difficult to accept for 
some  Member  States 
because of  

Difficult to  accept  for 
some  Member  States 
because of  

  widely 

  widely 

in 

divided 
views on the need 
for 
unification 
and little evidence 
differing 
of 
definitions 
marriage 
the 
national  laws  of 
States 
Member 
and 
diverging 
views  of  Member 
States  in  how  to 
deal  with  matters 
of  jurisdiction  as 
a result thereof 

in 

divided 
views on  the  need 
for unification and 
little evidence 
differing 
of 
definitions 
marriage 
the 
national  laws  of 
States 
Member 
and 
diverging 
views  of  Member 
States  in  how  to 
deal  with  matters 
of jurisdiction as a 
result thereof  

to 

be 
Unlikely 
to 
acceptable 
States 
Member 
other 
because 
Member 
States' 
exorbitant  grounds 
jurisdiction  are 
of 
generally  perceived 
as undesirable, and a 
need  to  protect  the 
own  citizens  from 
those foreign rules is 
retained. 

The  preferred  option  is  Option  1.  Options  2,  3  and  4  would  be  difficult  to  accept  for  some  Member 
States given that there are widely divided views on the need for unification and little evidence on the 
scale  of  the  problem.  Moreover,  as  the  so-called  exorbitant  grounds  of  jurisdiction  of  a  single  State 

33 

 
 
under  its  national  law  may  be  considered  politically  undesirable  by  other  States,  there  may  be  little 
incentive for them to agree to Option 4 proposing the abolition of a rule protecting their own nationals 
against  the  exorbitant  jurisdiction  rules  of  other  States.  In  addition,  given  the  varying  definition  of 
marriage in the national laws of Member States and diverging views of Member States in how to deal 
with matters of jurisdiction as a result thereof, it seems unlikely that a unanimous agreement on these 
matters could be achieved at this time. Given the potential benefits of improvements to the Regulation 
on this matter, the matter may be re-considered in the future on the basis of further evidence gathered, at 
a time when the national laws of the Member States may have evolved such that a consensus is more 
likely to be achieved. See chapter 2.2. concerning matrimonial matters. 

III.  PARENTAL RESPONSIBILITY 

The  Regulation  establishes  harmonised  jurisdiction  rules  for  all  disputes  concerning  parental 
responsibility  (e.g.  custody,  access  and  child  protection  measures).  The  resulting  judgments  are 
automatically  recognised  in  all  Member  States  and  can  be  enforced  there  under  certain  conditions. 
Moreover, the Regulation – in conjunction with the 1980 Hague Convention - sets up a procedure for 
returning  children  who  have  been  moved  wrongfully  to  another  Member  State  by  a  parent.  It  also 
contains rules for the cross-border placement of children in other Member States  and provides for the 
establishment of a Central Authority in every Member State. They shall cooperate with each other in the 
application  of  the  Regulation  and  support  parents  and  courts  in  cross-border  parental  responsibility 
cases.  According  to  the  opinion  of  the  national  experts  collected  in  the  evaluation  study  and  the 
feedback  received  in  the  public  consultation63  as  well  as  in  the  discussion  with  the  Member  States' 
representatives  the  jurisdiction  rules  mostly  work  well  by  providing  an  efficient  and  clear  system  for 
identifying  the  responsible  court  to  hear  a  case.  Problems  have  been  however  reported  in  four  areas: 
parental child abduction, cross-border placement of children, recognition and enforcement of judgments 
and cooperation between (central and other) national authorities. Linking these problems are common 
threads: the excessive and undue delays arising from the way the existing procedures are formulated or 
applied;  the  negative  impact  that  these  delays  can  have  on  the  fundamental  rights  of  the  child;  the 
corrosive effect that these deficiencies have on the mutual trust on which the smooth operation of the 
Regulation  depends.  Problems  related  in  particular  to  child  return  in  cases  of  parental  abduction  are 
reflected in the cases brought before the Court of Justice. 
In relation to the important subject of mediation, the existing Regulation already encourages its use.64 In 
general  terms,  this  encouragement  should  be  further  embedded  in  relation  to  several  of  the  parental 
responsibility matters discussed below. 

Parental responsibility matters are perceived by Member States as highly important given their link to 
the rights of the child, and enjoy their support in terms of possible changes which would enhance the 
overall efficiency of the proceedings. Therefore, it seems politically feasible to address these matters in 
the revision. 

3. 

THE RETURN PROCEDURE IN CASES OF PARENTAL CHILD ABDUCTION 

3.1.  Problem definition 

If an international couple splits up, the temptation for one of the spouses to return to his or her home 
country with the child(ren) can be high. If both parents – as is normally the case – have joint custody for 
the  child,  such  unilateral  removal  of  the  child  violates  the  rights  of  custody  of  the  left-behind  parent 
(parental child abduction) and puts the best interests of the child at risk. The 1980 Hague Convention, 

63 The qualitative analysis of the replies to the question concerning helpfulness of the Regulation with respect to cross-border 
custody and access rights highlights the efficiency of the jurisdiction system of the Regulation. 
64  See  Article  55.  The  1980  Hague  Convention  and  the  1996  Hague  Convention  on  which  the  Regulation  builds,  also 
encourage the use of mediation, in particular in child abduction cases. 

34 

 
 
                                                            
which  is  in  force  in  all Member  States,  discourages  unilateral  removals  of  children across  borders  by 
establishing a mechanism for the prompt return of the child to the State where the child was habitually 
resident before the abduction.65 The aim is a mere factual return; the 1980 Hague Convention does not 
establish jurisdiction rules nor deal with the proceedings for the attribution of custody after separation 
or  divorce  of  the  parents.  The  Convention  is  based  on  the  assumption,  though,  that  the  courts  of  the 
State where the child was habitually resident before the abduction are best placed to resolve the custody 
dispute. 

The  Regulation  builds  on  this  and  goes  further.  It  harmonises  jurisdiction  for  custody  disputes 
throughout  the  Union  (as  a  rule  in  the  State  of  habitual  residence  of  the  child)  and  complements  the 
return  mechanism  of  the  1980  Hague  Convention  by  some  procedural  safeguards  and  an  additional 
procedure  if  the  child  is  not  returned  to  the  State  of  habitual  residence  under  the  1980  Hague 
Convention.  To  obtain  the  return  of  a  child  abducted  from  one  Member  State  to  another,  the  1980 
Hague  Convention  continues  to  apply  in  accordance  with  the  terms  of  the  Regulation.  These  return 
proceedings under the Convention take place in the State to which the child was abducted. If return is 
ordered and the child returns, the Convention's aim is achieved and the custody case, if the parents so 
wish, can be heard by the courts of the State of the child's habitual residence. 

If  return  is  refused  by  the  State  of  refuge,  an  additional  procedure  comes  into  play  which  will  be 
described below under "Functioning of the overriding mechanism". 

Problems relating to the timing 

Parental child abduction causes harmful effects for children and great distress for their parents. 

The objective of the Regulation, which supplements in this regard the objectives and provisions of the 
1980 Hague Convention, is therefore to deter abductions and in any case to secure the prompt return of 
children wrongfully removed to or retained in another Member State. The prompt return of the child is 
crucial for three reasons. First, it is a reasonable assumption that it is generally better for the child if any 
disruption caused by abduction is rescinded as quickly as possible. A swift return means that the child 
can be returned to their normal routine and, if appropriate, maintain contact with the left-behind parent. 
Secondly, the longer the child is away from his or her State of habitual residence, the more likely they 
are to become settled in their new environment. This may mean that, even if initially it would have been 
in  the  best  interest  of  the  child  to  return  to  their  State  of  habitual  residence,  by  the  time  the  return 
application is decided by a court this is no longer the case. Thirdly, as one of the aims of the Regulation 
is to deter abductions, knowing that abduction will be countered by an immediate return is more likely 
to deter potential abductors than proceedings that can take months to resolve66. Timing is thus key to the 
successful operation of the child return procedure67. The Regulation therefore provides that "the court 
shall, except where exceptional circumstances make this impossible, issue its judgment no later than six 
weeks after the application is lodged". On average, however, only 26% of applications between Member 
States were resolved within six weeks68. In the same vein, the majority (61%) of the respondents to the 
public consultation, including those who have practical experience with the Regulation and the Member 

65  The  Commission  is  currently  evaluating  the  performance  of  the  operation  and  use  of  the  second  generation  Schengen 
Information  System  (SIS  II)  (set  up  in  SIS  II  Decision  and  SIS  II  Regulation),  supra  note  5.  A  specific  section  of  the 
evaluation report will be dedicated to the use and limitations of SIS in case of parental child abduction. The SIS II Decision 
only  allows  the  creation  of  an  alert  on  an  abducted  child  when  the  child  is  actually  missing  and its protection  and/or 
whereabouts have to be ascertained. However, in many cases of parental abduction the whereabouts of the abducted child are 
known or the child is staying with a person holding parental responsibility and does not need to be placed under protection. 
66 N. Lowe, V. Stephens, The timing of 1980 Hague Abduction Convention applications, p. 3. 
67 The need for speedy proceedings in child abduction cases also prompted the Court of Justice of the European Union to 
introduce,  in  March  2008,  a  fast-track procedure  for  preliminary  rulings  interpreting Union  law  in  these  cases.  The  Court 
made use of this procedure in nine cases so far, eight of which concerned child abduction, and issued its judgment within 60 
about days in each case. 
68 Statistical analysis of applications made in 2008 under the Hague Convention of 25 October 1980 on the Civil Aspects of 
International  Child  Abduction  —  Part  II  ―  Regional  Report,  Prel.  Doc.  No  8 B  ―  update  of  November  2011  for  the 
attention of the Special Commission of June 2011, available at https://assets.hcch.net/upload/wop/abduct2011pd08be.pdf. 

35 

 
 
                                                            
States, identified timing as an issue by stating that the Regulation has not ensured the immediate return 
of the child. 

Inefficiency of the return proceedings can be attributed to several aspects. Notwithstanding the benefits 
of having an express and short deadline, the current six-week time limit to issue a return order, whilst 
useful in setting a benchmark for what a "prompt return" should be, proved inadequate in practice since 
there  are  doubts  among  judges  and  practitioners  whether  the  six  weeks  apply  per  instance,  include 
appeals or even the enforcement of a return decision. In discussions with Member States' representatives 
and judges it became clear that in some Member States, the existing six-week time limit is considered as 
a  mere  political  appeal  to  act  quickly  rather  than  a  realistic  time  limit  and  has  little  impact  on  the 
handling  of  an  individual  case.  In  Member  States  which  apply  the  six-week  time  limit  to  the  first 
instance only (England and Wales) or to every court instance separately, however (e.g., Germany, the 
Netherlands), the first instance courts generally respect the time limit while appellate courts often take 
longer. 

Another problem of the rule which was raised in particular by judges is that it sets no time limit for the 
processing of an application by the receiving Central Authority. As a result, some cases take very long 
to  be  brought  before  the  court,  which  can  have  a  negative  impact  on  the  outcome  of  the  return 
proceedings. 
The evidence of the evaluation study and the analysis of the complaints received by the Commission69 
suggest that these delays are mainly based on certain inefficiencies in national procedures which hinder 
the respect of the time limit. Problems in meeting the deadline have been attributed in particular to the 
lack in national law of a limitation of the number of appeals that can be brought against a return order, 
combined  with  the  fact  that  proceedings  before  higher  courts  usually  take  longer.  In  some  Member 
States there are two levels of appeals (FR, AT, PL, SK) and often the appellate court only quashes the 
decision  of  the  lower  instance  and  refers  the  case  back  to  it.  The  new  decision  by  the  lower  instance 
court can then again be appealed. Statistics show70 that in extreme cases it can take up to 324 days to 
conclude an application which was appealed; the average being 154 days (see Annex 7 on the number 
of appeals in return proceedings). 

The  second  issue  relates  to  the  analysis  conducted  with  respect  to  the  time  limit  for  filing  an  appeal 
which  ranges  from  5  days  to  three  months71  and  which  may  have  a  suspensive  effect  on  the 
enforceability of the return decision. This means that even in the absence of an actual appeal, the order 
is not enforceable until the time for filing an appeal has expired. In some States (AT, CZ, LT, EL, FR) 
the  court  has  discretion  to  declare  the  return  order  (provisionally)  enforceable  before  that  moment, 
while such appeal can still be filed. If nothing else is ordered later to the contrary, this effect will subsist 
if  an  appeal  is  indeed  filed.  In  other  systems,  it  is  not  possible  to  declare  the  order  (provisionally) 
enforceable  where  no  appeal  has  been  filed  and  the  time  for  doing  so  has  not  yet  expired,  but  if  an 
appeal is then actually filed (possible only within a very short period of two weeks), the court of first 
instance  or  the  Court  of  Appeal  (DE)  can  at  this  stage  declare  the  order  enforceable  in  spite  of  the 
pending appeal. 

In addition, the European Judicial Network in civil and commercial matters came to the conclusion that 
an  inefficient  handling  of  cases  is  caused  by  lack  of  specialisation  and  concentration  of  the  courts 
dealing  with  return  applications  in  several  Member  States72.  These  cross-border  abduction  cases  are 

69 The complaints from citizens were received directly by the Commission (letters, formal complaints) or channelled through 
the European Parliament (petitions, parliamentary questions). Around half of the 60 cases per year relate to parental child 
abduction. 
70 Supra note 68. 
71 Infra note 100. 
72  Cyprus,  Estonia,  Greece,  Italy,  Poland,  Portugal,  Slovenia  and  Spain  do  not  have  concentration  of  jurisdiction.  See  the 
Best  Practice  Guide 
https://e-
justice.europa.eu/content_parental_child_abduction-309-en.do?clang=en,  several  Good  Practice  Guides  of  the  Hague 
Conference  on  Private  International  Law  and  recommendations  of  Special  Commissions  on  the  practical  operation  of  the 

11  Working  Group  within 

the  Article 

the  EJN; 

drawn 

up 

by 

36 

 
 
                                                            
 
complex and sensitive but arise only infrequently for the individual judge when handled in individual 
local family courts. As a result judges are less familiar with the procedures and provisions involved and 
have less opportunity to engage in a routine way other EU jurisdictions in a manner favourable to the 
building of mutual trust. This calls for limiting the number of courts competent to deal with abduction 
cases as is the case already in several Member States.73 

Return of the child under the 1980 Hague Convention may be refused if the return would be likely to 
cause a grave risk of physical or psychological harm for the child. Under the Regulation, this ground for 
refusal may not be used by judges hearing return applications under the 1980 Hague Convention "if it is 
established that adequate arrangements have been made to secure the protection of the child after his or 
her  return".  Further  delays  occurred  in  situations  where  it  could  not  be  established  quickly  whether 
‘adequate arrangements’ were put in place in the Member State of origin so to decide on the return of 
the child. The lack of precision of this provision appears to allow still too much leeway to refuse the 
return of a child. It is not clear where the burden of proof lies with respect to establishing that ‘adequate 
arrangements’ are in place. It is not clear whether the left-behind parent must demonstrate that adequate 
arrangements are in place in the Member State of origin or whether it is to be assumed that adequate 
arrangements to protect the child have been made unless the alleged abductor shows otherwise. It is not 
clear either whether the judge hearing the return case under the 1980 Hague Convention is obliged to 
take  the  initiative  and  get  in  touch  with  the  court  of  the  State  of  habitual  residence  of  the  child  with 
regard to these arrangements. In this context, there is also a gap as the Regulation does not provide itself 
a  jurisdictional  basis  for  any  protective  measures  to  be  ordered  by  the  court  of  refuge  if  considered 
necessary to allow return, and even if such measures are taken under national law they do not benefit 
from cross-border recognition and enforcement under the Regulation and can thus not protect the child 
during and after the return until the State of habitual residence takes its own measures. 

The  problems  described  relate  to  the  application  and  implementation  of  the  1980  Hague  Convention 
which the Brussels IIa Regulation set out to clarify in 2005. At a global level, as described under 1.1., 
the  Hague  Conference  had  to  conclude  in  2012  that  there  is  currently  no  support  for  a  protocol 
clarifying the 1980 Hague Convention and that the necessary clarifications would therefore have to be 
brought about by soft law and regional initiatives such as the Brussels IIa Regulation. 
Functioning of the "overriding mechanism"74 

The so-called “overriding mechanism” constitutes an addition to what has been provided for in the 1980 
Hague Convention and is thought to have a stronger deterrent effect on the potential abducting parent. It 
lays down the procedure to be followed after a non-return order was issued in the State of refuge on the 
basis  of  Article  13  of  the  1980  Hague  Convention  (no  exercise  of  custody  rights  by  the  left-behind 
parent, consent, objection of the mature child, grave risk of harm likely to be caused by the return). This 
decision  shall  be  sent  to  the  courts  of  the  State  of  the  (former)  habitual  residence  of  the  child  which 
shall invite the parents to file applications with regard to custody. Thus, even though the child does not 
return, the State best placed until now to make a sound decision on custody is given one last chance to 
do this even though the child is currently not present in that Member State. If a decision given in those 
custody proceedings orders the return of the child to the Member State of the former habitual residence, 
this  order  "overrides"  the  non-return  decision  made  earlier  and  is  directly  enforceable  in  all  Member 
States if accompanied by a certificate provided for in the Regulation. 

1980  Hague  Convention  have  regularly  reiterated  the  desirability  for  States  to  introduce  concentration  of  jurisdiction  for 
return applications under the 1980 Hague Convention. 
73  Austria,  Belgium,  Bulgaria,  the  Czech  Republic,  Finland,  France,  Germany,  Hungary,  Ireland,  Latvia,  Lithuania,  the 
Netherlands, Romania, the Slovak Republic, Sweden and the United Kingdom (England & Wales, Northern Ireland) have 
concentrated  jurisdiction  for  return  cases  under  the  1980  Hague  Convention  in  one  or  more  specialised  courts.  In 
Luxembourg and Malta, there is no formal concentration but there are only two family courts (Malta) or two Juvenile Courts 
(Luxembourg), respectively, for the whole country. 
74 Article 11 (6)-(8) of the Regulation. 

37 

 
 
                                                                                                                                                                                                             
Although  the Court  of Justice has  already  clarified certain aspects  of this procedure,75 national courts 
have  faced  difficulties  in  understanding  the  connections  between  the  different  types  of  procedures 
(custody procedures and return procedures). As reported by the national experts in the evaluation study, 
it may be the case that parents are involved at the same time in custody proceedings pending before the 
court  of  origin,  in  return  proceedings  before  the  court  of  refuge  and  yet  there  might  be  protective, 
provisional  measures  ordered  by  the  former  or  the  latter  court.  In  this  respect,  the  Austrian  Supreme 
Court  argued  that  the  enforcement  of  a  return  order  before  a  judgment  on  custody  is  final  could 
endanger the best interests of the child. If the final judgment on custody differs from the earlier return 
order on the question whether or not the child should be returned, the child will have to move twice in 
order to comply with the contradictory decisions.76 

The  practical  application  of  the  “overriding  mechanism”  has  proven  difficult  because  the  custody 
proceedings do not take place in the Member State where the child is present and because the abducting 
parent is often not cooperative. In particular, it is often difficult to hear the child.77 In addition, Central 
Authorities  whose  principal  role  is  to  support  parents  in  all  kinds  of  proceedings  are  not  involved  in 
such  custody  proceedings  although  they  could  potentially  assist  in  ensuring  the  proper  application  of 
these provisions. 

In addition, a practical problem relates to the transmission of documents to the court of origin in case of 
a non-return order concerning an abducted child. Some concerns have been raised by judges and Central 
Authorities  in  the  public  consultation  and  annual  meetings  because  the  Regulation  lacks  a  translation 
regime relating to these provisions, which gives rise to additional correspondence and delays. 

Finally, the lack of clarity of the child return provisions or inefficient measures generate extra costs for 
the  parents,  Central  Authorities  and  judges  involved  in  the  proceedings.  International  child  abduction 
cases  require  an  intense  work  load  and  a  high  level  of  commitment  by  legal  professionals supporting 
parents  to  meet  the  deadline  imposed  by  the  Regulation.  The  same  obligation  rests  with  the  Central 
Authorities and judges. 

For the parents involved it is mainly additional legal advice and work of their lawyers which causes the 
costs. Depending on the problem encountered or procedural step which has to be taken, every additional 
10 working hours of a lawyer may generate extras cost of € 1,000 – 4,000 (depending on an hourly rate 
which varies between the Member States; usually between € 100 and 400). 

In the same vein, unnecessary costs are generated for the national authorities through a higher work load 
for judges and staff of the Central Authorities. This means that the human resources cannot adequately 
deal with their usual responsibility and more staff is needed to handle the cases. The estimates in this 
field are difficult as the remuneration and workload of public administration staff is not available. It is 
known,  at  least,  that  Central  Authority  staff  throughout  the  Union  varies  in  composition  –  in  some 
Member  States  all  cases  are  handled  by  staff  which  are  qualified  as  judges  or  lawyers  (attorneys),  in 
others staff members may hold other university degrees, and yet in others the caseworkers are paralegals 
or  other  professionals  which have  undergone education  at  a college of applied sciences. Accordingly, 
remuneration  in  the  public  service  varies  widely,  making  it  impossible  to  quantify  the  costs  of 
additional working hours. 

75 See in particular CJEU 11 July 2008, Case C-195/08 PPU – Inga Rinau; 1 July 2010, Case C-211/10 PPU – Doris Povse v 
Mauro Alpago and 22 December 2010, Case C-491/10 PPU, Joseba Andoni Aguirre Zarraga v. Simone Pelz. 
76 CJEU 1 July 2010, Case C-211/10 PPU – Povse. The CJEU held that “the importance of delivering a court judgment on 
the  final  custody  of  the  child  that  is  fair  and  soundly  based,  the  need  to  deter  child  abduction,  and  the  child’s  right  to 
maintain  on  a  regular  basis  a  personal  relationship  and  direct  contact  with  both  parents,  take  precedence  over  any 
disadvantages  which  such  moving  might  entail”.  Moreover,  the  return  may  even  be  necessary  to  facilitate  an  eventual 
decision on the custody of the child. 
77 An example on the hearing of the child is provided by the case Aguirre Zarraga, CJEU 22 December 2010, Case C-491/10 
PPU, paras 63-68. The Court stressed that a child must be given a genuine and effective opportunity to make his/her views 
known. If necessary, the Evidence Regulation should be used which provides the opportunity to use technologies facilitating 
a hearing without the child having to be physically present before the court (e.g. video conferencing). 

38 

 
 
                                                            
3.2. 

Scale of the problem 

It is estimated that annually there are up to 1,800 cases of parental child abduction within the EU. The 
number of cases in which the overriding mechanism has been applied is relatively small, not exceeding 
20 cases per year.  

3.3. 

Subsidiarity 

Shared competence of the Union for most of the measures discussed here is based on Article 81 para. 2 
(f) TFEU which establishes EU competence for the elimination of obstacles to the proper functioning of 
civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable 
in  the  Member  States.  The  clarification  of  the  time  limit,  the  concentration  of  jurisdiction  within  a 
Member State, the limitation of the number of appeals, the rule on provisional enforceability of return 
orders  and  the  obligation  to  hear  the  child  all  establish  uniform  rules  on  certain  aspects  of  civil 
procedure  in  the  context  of  return  proceedings  under  the  1980  Hague  Convention.  The  same  method 
was already used in 2003 when an article78 was included into the Regulation which establishes certain 
common procedural rules for courts of Member States when dealing with return proceedings under the 
1980 Hague Convention. The shared EU competence for creating an autonomous jurisdiction rule for 
provisional and protective measures taken in the State of refuge flows from Article 81 para. 2 (c) TFEU 
which  establishes  shared  EU  competence  for  common  jurisdiction  rules.  A  revocation  of  the  current 
system  by  concentrating  jurisdiction  in  the  State  of  origin  could  be  based  on  Article 81  para. 2  (c), 
ensuring the compatibility of the rules applicable in the Member States concerning jurisdiction. 

The  return  mechanism  applies  solely  to  cross-border  child  abduction  cases.  To  work  properly  it  is 
heavily  dependent  on  both  efficient  decision  making  in  all  Member  States  involved  and  efficient 
cooperation between the courts and authorities of the respective Member States. Existing Union law has 
shortcomings in this respect. Improvements undertaken in one Member State have proven not to have 
an  impact  on  the  return  procedure  as  a  whole  since  smooth  operation  of  the  system  presupposes 
efficiency,  close  cooperation  and  mutual  trust  between  both  Member  States  involved  in  a  case.  If 
cooperation in return cases between States A and B works like a one-way street because State A always 
returns abducted children quickly to State B while State B always takes very much time and, due to the 
time  elapsed,  sometimes  does  not  return  children  at  all  to  State  A,  this  undermines  mutual  trust  and 
develops  negative  spill-over  effects.  EU  action  is  therefore  required  to  address  these  obstacles  in  all 
Member States and ensure that there are no disparities which negatively impact on the overall efficiency 
of  the  procedure.  While  the  changes  require  some,  limited,  further  harmonisation  of  Member  States' 
procedural law79, this is limited to the minimum necessary to ensure the objective of smooth and swift 
functioning of the system. 

3.4.  Objectives 

General objectives: 

(a)  to deter abductions, protect the parent-child relationship and thereby safeguard the best interests 

of the child 

Specific objectives: 

(a)  to ensure swift and safe return of the child to his or her State of habitual residence and thereby 

simplify the child return procedure 

78 Article 11. 
79 The existing Regulation already establishes some harmonisation of Member States' procedural laws. 

39 

 
 
                                                            
3.5.  Description of Policy Options 
Option 1: Baseline scenario 

This  option  does  not  involve  any  legislative  intervention.  The  application  of  "soft  law  measures"  as 
already  developed  by  the  Commission  in  cooperation  with  the  Member  States  would  continue.  Such 
measures  include  a  Practice  Guide80  elaborated  by  the  European  Judicial  Network  in  Civil  and 
Commercial  Matters  concerning  handling  of  return  requests  and  a  Practice  Guide  drawn  up  by  the 
Commission,81 and the organisation of annual meetings of the Central Authorities of all Member States, 
enabling  them  to  have  an  exchange  of  views  on  general  matters  relating  to  the  application  of  the 
Regulation and bilateral meetings to discuss difficult individual cases. 

Option 2: Codification of the current interpretation based on available guidelines and  the CJEU case 
law 

This  option  would  only  clarify  the  current  understanding  of  the  relevant  article  and  its  operation 
following the interpretation given in some of the available guidelines and the CJEU case law referred to 
in the problem description. 

It  would  stipulate  that  the  six-week  time  limit  applies  to  the  whole  procedure  for  obtaining  an 
enforceable  return  decision;  including  the  first  instance  court  proceedings  and  possible  appeal 
proceedings.82 

In  specific  cases  where  the  court  of  origin  takes  the  final  decision  on  the  return  and  overrides  the 
decision of the court of refuge the specific role of Central Authorities would be explicitly mentioned. 

The court of refuge, where it decides not to return the child, should be obliged to specify in its decision 
the grounds for refusal and thereby make it clearer whether the overriding mechanism is to be applied. 

Option  3:  Introduction  of  measures  increasing  efficiency  and  improving  the  functioning  of  the 
"overriding mechanism" 

This option would start with the two mere clarifications set out at the end of Option 2 but go beyond. It 
adds a number of "new" measures to tackle the problem of inefficiency and the problems relating to the 
complexity of the "overriding mechanism". 

First of all, it would clarify the time limit for issuing an enforceable return order in line with the view 
prevailing  among  those  Member  States  which  handle  return  cases  under  the  1980  Hague  Convention 
most quickly. A separate six-week time limit would apply to the proceedings before the first  instance 
court and the appellate court, respectively. In addition, this option would oblige Central Authorities to 
also work under a six-week time limit to receive and process the application; locate the respondent and 
the child; promote mediation while making sure that this does not delay the proceedings, and refer the 
applicant to a qualified lawyer. Currently, no time limit exists for Central Authorities. This new 6+6+6 
deadline would therefore envisage a maximum period of 18 weeks for all possible stages. This would 
render the time limit for courts more realistic with a view to protecting the right of the defendant to a 
fair trial whilst limiting it to the shortest period realistically possible when respecting the rule of law. 

the  Article  11  Working  Group  within 

80  The  Best  Practice  Guide  drawn  up  by 
the  EJN;  https://e-
justice.europa.eu/content_parental_child_abduction-309-en.do?clang=en,  several  Good  Practice  Guides  of  the  Hague 
Conference on Private International Law on the 1980 Hague Convention and Recommendations of Special Commissions on 
the practical operation of the Convention. 
81 
the 
http://ec.europa.eu/justice/civil/files/brussels_ii_practice_guide_en.pdf. 
82 This view, put forward by the Commission in the first edition of its Practice Guide on the Regulation, published in 2005, 
was not shared by the Member States, as their implementation of the six-week rule and the discussions within the European 
Judicial Network in Civil and Commercial Matters demonstrate.  

IIa  Regulation, 

Practice  Guide 

the  Brussels 

application 

edition 

2015, 

3rd 

for 

of 

40 

 
 
                                                            
Moreover,  the  measures  proposed  would  include  an  obligation  for  Member  States  to  concentrate 
jurisdiction for child abduction cases on a limited number of courts while respecting the structure of the 
legal system concerned. This would allow judges experienced with this very specific type of procedure 
to rule on the return proceedings. 

This  option  would  also  limit  the  number  of  possibilities  to  appeal  a  decision  on  return  to  one  and 
explicitly invite a judge to consider whether a judgment should be provisionally enforceable. 

Also, there would be an obligation of the Member State of origin to conduct a thorough examination of 
the best interests of the child before a final custody decision, possibly implying return of the child, is 
issued.  In  this  context,  when  conducting  this  examination  of  the  best  interests  of  the  child,  any  child 
who is capable of forming his or her own views has the right to be heard, using alternative means where 
relevant, even if the child is not physically present. 

The cooperation between the Central Authorities or a direct communication by a judge with the relevant 
court in the Member State of origin should be facilitated to assess measures ("adequate arrangements") 
put in place in the Member State to which the child should be returned. 

Where the child might be at a grave risk of harm or might otherwise be placed in an intolerable situation 
if  returned  to  the  country  of  the  child’s  habitual  residence  without  any  safeguards,  it  should  also  be 
possible for the court of the Member State of refuge to order urgent protective measures required there 
and which, if necessary, can also "travel with the child" to the State of habitual residence where a final 
decision of the substance has to be taken. These could include that the left-behind parent cannot see the 
child alone and perhaps only under the supervision of a public authority. Such an urgent measure would 
be recognised by operation of law in the State of origin but would lapse as soon as the court of origin 
has taken the measures required by the situation. 

Option 4: Revoking the current system by deleting the overriding mechanism and thereby returning to 
the 1980 Hague Convention system 

The  system  would  move  back  to  the  system  stipulated  in  the  1980  Hague  Convention  which  was 
applied before the adoption of the Regulation. A refusal of return by the court in the Member State of 
refuge would be final and could not be overruled by the court in the Member State of origin which is 
currently permitted under the Regulation. 

Option  5:  Revoking  the  current  system  of  Article  11  by  concentrating  the  jurisdiction  for  return 
proceedings in the Member State of origin and enforcing the return order in the Member State of refuge 

This option implies that no application for a return order under the 1980 Hague Convention would have 
to be brought in the State of refuge first. Solely the Member State of the habitual residence of the child 
prior  to  the  unlawful  removal  or  retention  would  decide  on  the  return.  The  Member  State  of  refuge 
would  then  enforce  such  an  order.  Assuming  that  such  an  opt-out  would  be  permitted  by  the  1980 
Hague  Convention,  this  option  would  mean  that  a  parallel  system  would  be  established  for  intra-EU 
cases. 

3.6.  Analysis of impacts of retained Policy Options 

3.6.1.  Option 1: Baseline scenario 

For  the  assessment  of  this  option  please  see  problem  definition.  At  global  or  EU  level,  no  other 
legislative  projects  are  planned  which  would  address  international  parental  child  abduction  and  the 
remaining  implementing  problems  of  the  1980  Hague  Convention  and  the  Regulation  as  described 
above. While some Member States have taken effective remedies to solve the problems, others have not 
– for various reasons: sometimes the political pressure from abroad is not big enough because the total 
number  of  cases  is  limited,  and  almost  each  of  them  concerns  a  different  country,  sometimes  the 
domestic resistance by judges or other stakeholders against certain proposed measures is too strong, and 
sometimes  there  is  no  political  majority.  But  even  if  all  Member  States  were  to  take  certain 
implementing  measures  in  the  near  future,  it  is  unlikely  that  these  would  be  identical.  Differences  in 

41 

 
 
efficiency  would  thus  remain,  and  with  them  the  challenge  to  mutual  trust  caused  by  the  unequal 
handling of return applications concerning abducted children. 

3.6.2.  Option  2:  Codification  of  the  current  interpretation  based  on  available  guidelines  and  the 

CJEU case law 

Effectiveness  to  meet objectives: This  option would improve the  deterrent  effect by clarifying the 
“overriding  mechanism”.  However,  it  would  not  simplify  the  procedure  as  it  would  not  reduce 
delays nor would it make the six-week time limit achievable as it would stipulate that the time frame 
applies to the proceedings as a whole, i.e. including proceedings before all court instances and would be 
unable to tackle the core underlying causes of the delays. The time limit of six weeks for the overall 
proceedings (i.e. not just per instance) is not achievable on a general scale without putting the rule of 
law at risk. A survey carried out between 2010 and 2013 by a Working Group of Central Authorities 
under  the  Regulation  established  in  the  framework  of  the  European  Judicial  Network  in  civil  and 
commercial matters showed that in many Member States, the application is filed with the court first, and 
the  court  then  serves  the  document  instituting  the  proceedings  upon  the  defendant  (in  this  case  the 
abducting parent). The time for service would therefore already count as part of the six weeks. The right 
to  a  fair  trial  requires  that  the  defendant,  after  having  been  served  with  the  document  instituting  the 
proceedings,  has  sufficient  time  to  prepare  for  his  or  her  defence  and  find  a  lawyer  before  the  court 
hearing takes place. In States which are currently quick, a judgment can be expected about five to six 
weeks after the first instance court was seised, and the time limit for appeal starts yet to run. This shows 
that if the six weeks applied to all instances together, this could only be achieved to the detriment of the 
right of the defendant to a fair trial. 

Similarly, this option would not enhance a safe return; the protective measures would continue to have 
only effects in one Member State. 

For the relationship of this option with any other possible legal developments at global, EU or national 
levels see 3.6.1. 

Fundamental  rights:  The  mere  clarification  of  the  current  system  would  enhance  its  efficiency  to  a 
limited extent and therefore have only minimal impact on the protection of the right of the child to have 
contacts with both parents as the right of the parent to protect his/her family life. The obligation to carry 
out  a  deeper  assessment  of  the  best  interest  of  the  child  before  the  final  custody  decision  is  issued 
positively impacts on the rights of the child(ren) involved in the proceedings. 

Costs savings: This option would only have some positive impacts on costs savings for parents (as less 
intense  legal  advice  would  be  required  due  to  more  clarity  of  the  provisions).  A  positive  effect  on 
national authorities is doubtful as further intense work would be required. However the effects could be 
hardly achieved as the provisions causing a prolongation in particular of the return proceedings under 
the 1980 Hague Convention would still apply. 

Stakeholders' views: There was some support from the respondents for clarifying the current system 
which is seen in overall as a complex one. 

3.6.3.   Option 3: Introduction of measures increasing efficiency and improving the functioning of the 

"overriding mechanism" 

Effectiveness to meet objectives: This option, in addition to improving the deterrent effect of the 
“overriding  mechanism”,  would  also  meet  the  objective  of  making  the  time  limit  for  the  return 
proceedings  under  the  1980  Hague  Convention  achievable  as  the  system  would  be  designed  with 
three six-week targets so that the final decision, including appeals (if any), is given at the latest within 
18  weeks  (instead  of  the  excessive  delays  exceeding  25  weeks  and  more)  of  the  application  being 
received by the Central Authority of the State of refuge. More particularly, this option would simplify 
and tackle the core underlying causes of the delays. Even though this may at first glance look like an 
extension  of  the  current  six-week  time  limit,  the  effect  is  likely  to  be  the  opposite,  namely  that  this 
clarification  would  considerably  reduce  delays,  as  practice  in  certain  Member  States  with  quick  case 
handling has shown: 

42 

 
 
The time limit for the  Central Authorities would  be a novelty as there is  currently no time limit for 
them in the Regulation and Central Authorities often take longer to take a case to court or refer it to a 
lawyer  (mostly  because  the  case  file  is  not  yet  complete  and  the  requesting  Central  Authority  or  the 
applicant does not provide the necessary information). Setting a clear deadline for the requested Central 
Authority  will  increase  pressure  to  take  the  case  to  court  timely,  and  for  the  requesting  Central 
Authority and the applicant to provide the missing information quickly. Concerning court proceedings, 
this option follows the good practice identified in some Member States already where the six-week time 
limit is interpreted as applying separately to each instance, and is largely complied with: In line with the 
considerations about fair trial mentioned above under Option 2, in some Member States (e.g. Germany) 
the first (and only) hearing is scheduled about four weeks after the court was seised with the case, and 
the decision is given shortly after the hearing. In other Member States, a first preparatory hearing takes 
place after two weeks (e.g. Netherlands) to discuss procedure and the possibility of mediation, followed 
by the final hearing after four weeks and the judgment shortly afterwards. The first instance judgment is 
generally issued after five to six weeks in these Member States, and the time limit for appeal starts to 
run. The appellate court then has its own six weeks. However, even in Member States with quick case 
handling,  appellate  courts  currently  often  overstep  the  time  limit.  Therefore,  the  Commission  sees  a 
need for making this obligation clearer and addressing each instance separately with a view to speeding 
up in particular appeal proceedings. 

The concentration of jurisdiction could significantly contribute to the swift handling of the cases by a 
pool of specialised and experienced judges and thereby reduce delays. Such a concentration has proved 
effective to speed up proceedings in the Member States which have introduced it. Those Member States 
would certainly welcome a concentration also in other Member States. An EU obligation can help those 
who have not yet done so to overcome internal obstacles. Member States would concentrate jurisdiction 
upon one or more courts, taking into account their internal structures for the administration of justice as 
appropriate. They are likely to accept the widely recognised advantage of concentrating jurisdiction as 
they would choose their own way to do so. Good practice in some Member States is, for example, the 
concentration  of  jurisdiction  for  child  abduction  cases  in  one  single  court  for  the  whole  country  (e.g. 
Bulgaria,  Finland,  Hungary,  the  Netherlands,  Romania,  Sweden,  the  UK  [for  England  and  Wales, 
Gibraltar,  Northern  Ireland  and  Scotland,  respectively]),  while  in  other  Member  States,  the  point  of 
departure  for  concentration  has  been  the  number  of  appellate  courts  and  an  ensuing  concentration  of 
jurisdiction for international child abduction cases upon one court of first instance within each district of 
a court of appeal (Austria, Belgium, Germany and France). The concentration would also maximise the 
effectiveness  of  networking  with  judges  in  other  jurisdictions  dealing  with  such  cases  and  of  training 
opportunities.  

 In  the  same  vein,  the  limitation  of  appeals  would  considerably  reduce  delays,  as  experience  in  those 
Member States which have taken this step already has shown. 

Provisional,  protective  measures  with  cross-border  effect  would  enable  the  court  of  refuge  to  make 
itself, at least initially, an “adequate arrangement" to secure the protection of the child after his or her 
return”, without awaiting such measures to be taken by the court of origin and thereby enable the court 
to order return more quickly. Indeed, it would also encourage the court of origin to take such measures, 
and thus facilitate coordination and cooperation between the court of refuge and the court of origin, and, 
thereby, it would help reduce the need for an order refusing return and further reduce delays. 

For the relationship of this option with any other possible legal developments at global, EU or national 
levels see 3.6.1. 

Fundamental  rights:  Reducing  delays  in  return  proceedings  under  the  1980  Hague  Convention 
would better protect the right of the child to have contacts with both parents as the right of the parent to 
protect  his/her  family  life.  Even  if  the  number  of  appeals  that  can  be  brought  against  a  return  order 
would be limited, at least one appeal instance will be guaranteed, so that no issue would arise regarding 
the right to an effective remedy and to a fair trial (Charter Article 47). 

43 

 
 
The obligation to carry out a deeper assessment of the best interest of the child before the final custody 
decision involving the return of the child (after a refusal of another Member State to return the child 
under the 1980 Hague Convention) is issued positively impacts on the rights of the child(ren) involved 
in the proceedings: In the past it has happened that the court in the State of (former) habitual residence 
of the child, after having received a non-return order under the 1980 Hague Convention from another 
Member State, simply ordered the return of the child by a provisional measure with a view to having the 
child within the jurisdiction first, and then conducting full custody proceedings. Even though this is in 
line  with  the  case  law  of  the  Court  of  Justice,83  it  bears  risks  for  the  child's  best  interests  in  several 
respects. First, the court in the State of refuge had legitimate reasons not to order the return of the child 
in  the  summary  proceedings  under  the  1980  Hague  Convention.  The  Convention  permits  non-return 
based on consent of the left-behind parent, on the objection of the child or on the fact that return bears a 
risk of harm to the physical or psychological wellbeing of the child. The court in the State of (former) 
habitual  residence  which  still  has  jurisdiction  over  the  substance  of  custody  is  further  away  from  the 
child in his or her current situation. Overruling the non-return order should therefore be possible for this 
court  only  if  based  on  a  full  in-depth  examination  of  the  custody  question,  thereby  providing  a  long-
term solution and not only a reversal to the abduction situation which may be overturned by the same 
court  later  following  a  more  in-depth  analysis.  If  the  overriding  return  order  under  the  Regulation  is 
made  in  a  similarly  summary  procedure  without  additional  evidence,  it  may  even  contribute  to 
materialising  the  risks  perceived  by  the  court  which  heard  the  return  case  under  the  1980  Hague 
Convention.  Moreover,  cross-border  removals  are  difficult,  sometimes  even  traumatic  for  children,  in 
particular if they occur in a "crisis environment" of hostility between both parents as compared to a joint 
relocation of a whole family in harmony. 

Costs:  This  option  implies  that  a  number  of  specialist  judges  are  available  in  the  jurisdiction  at  all 
times.  Additional  training  may  need  to  be  offered  in  some  Member  States  to  the  judges  who  will  be 
dealing  with  return  cases.  On  the  other  hand,  given  the  concentration  of  jurisdiction,  training 
expenditure may actually decrease, as a limited number of judges would need to be trained. 

In  all  Member  States  which  have  already  concentrated  jurisdiction  for  return  cases  under  the  1980 
Hague Convention, no new courts were created but the specialist courts were designated  from among 
the  courts  already  established  in  a  Member  State.  In  this  case,  the  adoption  of  national  rules  to 
implement the principle of concentration would be the only cost factor. For Member States there might 
be costs related to the administration and running of the court but as the cases already exist now and are 
only heard by other, non-specialist courts, costs would only be shifted from one court to another and no 
new costs would be generated. Moreover, many Member States have already concentrated jurisdiction 
for  return  applications  in  a  limited  number  of  courts.  For  this  reason  the  economic  impact  is  not 
expected to be high at EU-level. 

Cost savings: In the long term there would be cost savings due to efficiency gains. As only a limited 
number of courts and judges would deal with return cases, it would be possible to prepare tailor-made 
training for them and they would be able to develop a routine in dealing with return cases. Procedures 
would  eventually  become  shorter  which  would  mean  that  fewer  resources  would  be  needed  per  case. 
Central  Authorities  and  judges  from  Member  States  which  have  already  concentrated  jurisdiction  for 
return cases reported in the annual meetings of Central Authorities that concentration of jurisdiction also 
fosters the development of a specialised bar at these courts. These expert attorneys handle the delicate 
cross-border child abduction cases more quickly and more efficiently. As a consequence, parents need 
fewer hours of specialised legal advice; such gain is estimated at € 1,000 to 4,000 per case. 

Stakeholders' views: Addressing the problem of delays featured in the contributions from all Member 
States who responded to the public consultation. BE suggests that it may be appropriate to regulate the 
return  procedures  more  strictly  by  limiting  the  number  of  hearings,  opportunities  for  appeal,  and  by 
setting  common  minimum  standards  for  enforcement  procedures.  The  United  Kingdom  notes  the 

83 Supra notes 75 and 76 (Povse). 

44 

 
 
                                                            
difficulties, in practice, with adhering to the six-week time limit, but concludes that it is unlikely that a 
different period of time would make a significant difference to the operation of the procedure and that 
priority should be given to improving the operation of the existing provisions. A number of respondents 
to the public consultation recommended adopting a fast-track procedure for handling return cases which 
would be effectively achieved with concentration of jurisdiction. 

3.6.4.  Option  4:  Revoking  the  current  system  by  deleting  the  overriding  mechanism  and  thereby 

returning to the 1980 Hague Convention system 

Effectiveness to meet objectives: This option would not have a deterrent effect as strong as that of 
the current Regulation system which gives the court of origin the additional and final say on the return. 
It  would  have  a  positive  impact  on  delays  and  thereby  simplify  the  procedure  as  the  overall  court 
proceedings would be limited to the proceedings before the court of refuge. The main advantage of this 
solution  is  that  it  would  ensure  quicker  decisions  on  return  by  narrowing  the  scope  of  the  questions 
submitted for the analysis to the court of refuge (whether the applicant has custody rights, whether the 
habitual residence was in the Member State of origin, and whether there is a ground for refusal) as the 
overriding mechanism would not be applied. This option would not make the time limit achievable, 
and it would not ensure a follow-up on the open custody issue. 

The return to the "lighter" 1980 Hague Convention system would be a radical reversal of what proved to 
be  the  key  element  of  the  political  compromise  allowing  the  existing  Regulation  to  be  concluded  in 
2003, and reopening the question may have a negative impact on the balance of the negotiations. 

Fundamental  rights:  The  return  to  the  1980  Hague  Convention  system  would  protect  the  rights  of 
some children, as the overriding mechanism would be abolished, which would avoid a forced return in 
cases where the child has clearly refused to return and the judge in the State to which the child had been 
abducted  had  issued  a  non-return  order  on  this  basis.  The  judge  when  examining  whether  the  child 
should  be  returned  or  not  should  bear  in  mind  the  effects  of  the  fact  that  the  child  is  in  a  foreign 
environment and feels very dependent on the abducting parent. Every child has the right to maintain on 
a regular basis a personal relationship and direct contact with both parents, thus also with the left-behind 
parent,  unless  it  is  contrary  to  his  or  her  interests  –  a  right  protected  by  the  UNCRC  as  well  as  the 
Charter.  On  the  other  hand,  this  option  would  leave  the  custody  situation  in  limbo  if  the  child  is  not 
returned, thereby also prolonging an unclear legal situation which, as research has shown, can have a 
negative impact on the child concerned and will often prevent contact between the child and the parent 
with whom the child is not living. 

Costs savings: This option could involve savings for parents, estimated at € 1,000 to 4,000 per case, as 
the return proceedings would be shorter and thereby less legal advice would be required. On the other 
hand,  the  custody  situation  would  not  be  resolved  and  the  proceedings  on  this  part  would  need  to 
continue without being supported by the Regulation's system. 

Stakeholders' views: Only few respondents suggested that the 1980 Hague Convention system would 
better address the inefficiency problem. 

3.6.5.   Option 5: Revoking the current system of Article 11 by concentrating the jurisdiction for return 
proceedings in the Member State of origin and enforcing the return order in the Member State 
of refuge 

This policy option was discarded. 

It implies a creation of a completely new system which may cause serious difficulties to practitioners 
who are used to the current "philosophy". This option would also lead to the creation of two different 
systems  of  handling  intra-  and  extra-EU  child  abduction  cases.  In  addition,  this  would  weaken  the 
position  of  the  MS  vis-à-vis  third  countries  in  the  framework  of  the  application  of  the  1980  Hague 
Convention. It would also create a disproportionate burden on Central Authorities which in all Member 
States  are  responsible  for  both  intra-  and  extra-EU  cases.  The  change  would  require  adaptation  of 
enforcement mechanisms which are currently a matter of national law: the current system requires and 
ensures close cooperation between the court of the Member State of refuge deciding on the return and 

45 

 
 
the enforcement authorities of that State. Such cooperation may be more difficult if the deciding court 
and  the  enforcement  authorities  are  in  different  Member  States.  In  particular,  the  Member  State  of 
origin  is  likely  to  be  unaware  of  the  particular  requirements  of  the  enforcement  law  of  the  State  of 
refuge so that the enforcement organs in that State might encounter problems when enforcing the order. 

Stakeholders’ views: None of the stakeholders suggested this solution. 

3.7 

Comparing the Options and preferred Policy Option 

Objectives/ 
Impacts 

Option 1 

Option 2 

Option 3 

Option 4 

Baseline 
scenario 

Clarification of the 
current system 

Introduction of new 
measures to the 
return mechanism 

Return to the 1980 
Hague Convention 
system 

To deter abductions 

0 

Same impact as Option 
2. 

This  option  would 
improve deterrence of 
by 
abduction 
clarifying 
the 
"overriding 
mechanism". 

impact  on 

This  option  would  have  a 
negative 
the 
deterrent  effect  compared 
to  the  status  quo  as  the 
mechanism 
overriding 
be 
longer 
would 
available and the last word 
would  remain  with 
the 
court of refuge. 

no 

0 

Simplification  by 
ensuring  swift  and 
safe  return  of  the 
child  to  his  or  her 
State  of  habitual 
residence 

Protection 
of 
fundamental rights 

0 

This  option  would 
simplify 
minimally 
the  procedures. 
It 
would  reduce  delays 
to  a  limited  extent. 
The  time  limit  would 
not 
overall 
be 
achievable. 

This 
option  would 
strongly  simplify  the 
return  procedure. 
It 
would  have  a  positive 
impact  by 
reducing 
delays  and  making  the 
time limit achievable. 

This option would 
simplify the procedure. It 
would have a positive 
impact on delays but less 
than Option 3 as the 
custody situation will 
remain untouched. 

Safe  return  could  not 
be  enhanced  as  the 
protective  measures 
would not have cross-
border effects. 

Safe  return  would  be 
ensured 
through 
measures 
protective 
with 
cross-border 
effect. 

Safe return could not be 
enhanced as the protective 
measures would not have 
cross-border effects.  

The  option  would  have  a 
mixed  impact.  Increased 
efficiency  leads  to  a  better 
protection  of  the  rights  of 
the  child.  If  the  overriding 
mechanism  would 
be 
this  would 
abolished, 
avoid  a  forced  return  in 
cases  where  the  child  has 
clearly  refused  to  return. 
a  more 
However,  on 
general  level,  the  removal 
"overriding 
of 
mechanism" 
might 
decrease  deterrence  and 
thereby increase likelihood 
of  abduction.  And 
the 
custody  situation  left  in 
limbo  is  likely  to  have  a 
the 
negative 
child  and  on  contact  with 
the left-behind parent. 

impact  on 

the 

This  option  would 
have  only  a  limited 
impact  on 
positive 
fundamental 
rights, 
since 
some  delays 
could be reduced, and 
would  therefore  not 
fully 
the 
protect 
rights of the child. 

strong 

This option would have 
a 
positive 
impact on fundamental 
rights,  since  it  would 
significantly 
enhance 
the right of the child to 
be  heard  and  the  best 
interests of the child. It 
would  also 
increase 
overall  effectiveness  of 
the system which in its 
turn  positively  impacts 
on  the  rights  of  the 
child. 

46 

 
 
 
Costs/costs savings 

0 

0 

0 

as 

For the Member States, 
this  Option  should  be 
a 
cost-neutral 
concentration 
of 
jurisdiction  will  not 
generate  more  cases 
but  only  allocate  them 
to other courts. 

In  the  long  term  there 
would  be  savings  in 
training  for  judges  as 
only a small number of 
judges would require it 
(for 
only 
example, 
judges  in  one  district 
court  in  each  of  the  45 
circuit  court  districts 
instead  of  all  judges  in 
all 321 district courts in 
case  of  Poland84).  In 
Germany,  this  type  of 
reduced 
concentration 
the 
of 
number 
competent  courts  from 
656  to  22,  producing 
extremely 
positive 
effects.  It  also  turned 
out that the handling by 
specialist  courts  and 
lawyers  is  quicker  and 
more  efficient, 
thus 
also  saving  court  and 
lawyers'  fees  for  the 
parties. 

The  preferred  option  is  Option  3.  Options  1  and  2  are  not  viable  as  they  both  would  not  address  the 
underlying problems leading to excessive and undue delays. Similarly, Option 4 would not address the 
issue of efficiency and in addition it would weaken the deterrent effect of the Regulation. 

While the present overall philosophy of the Regulation concerning child return is kept, Option 3 meets 
best  the  operational  objectives  to  clarify  and  strengthen  the  role  of  the  court  of  origin,  to  introduce  a 
clear and realistic time frame for issuing an enforceable return order, to concentrate the handling of the 
return  cases  upon  experienced  judges,  to  limit  the  number  of  appeals  and  ensure  the  provisional 
enforceability  of  judgments  even  if  national  law  does  not  provide  for  it,  to  ensure  that  protective 
provisional  measures  can  have  cross-border  effects  and  to  ensure  that  the  child's  right  to  be  heard  is 
respected, even if the child is not physically present before the court, in accordance with the UNCRC 
and the Charter. 

The  preferred  option  is  proportionate  as  it  proposes  only  what  is  strictly  necessary  to  achieve  the 
deterrent  objective  of  the  Regulation,  ensure  swift  handling  of  return  cases  and  thereby  positively 
impact on the rights of the child. 

84  For  the  organisation  and  number  of  courts  in  Poland,  see:  http://bip.ms.gov.pl/pl/rejestry-i-ewidencje/lista-sadow-
powszechnych/. 

47 

 
 
                                                            
4.  

PLACEMENT OF THE CHILD IN ANOTHER MEMBER STATE 

4.1.  Problem definition and scale of the problem 

Under the Regulation, a court or authority envisaging the placement of a child in a foster family or an 
institution  in  another  Member  State  has  to  consult  the  authorities  of  that  State  before  ordering  the 
placement.85 To define what kind of consultation is necessary, the Regulation refers to national law: If 
such a placement would require public authority intervention in the requested State if it were an internal 
case there, the consent of the authorities of the receiving State needs to be obtained for a comparable 
cross-border  placement  prior  to  ordering  the  placement.  If  no  public  authority  intervention  would  be 
required in a similar domestic case in the requested State, its authorities only have to be informed of the 
placement. 

Central  Authorities  have  an  obligation  to  assist  courts  and  authorities  in  arranging  cross-border 
placements but their involvement is not mandatory.86 

There are two types of placement falling under this provision. One is a long-term placement of a child 
which needs a new family (either because it is an orphan or because the parents appear unfit to care for 
the child).87 

Most cross-border placements, however, belong to the second type, namely measures of an educational 
character  which  are  meant  to  be  temporary,  although  they  can  last  for  several  years.  These  measures 
concern children who do still have parents, the parents do have custody, and in general they are fit to 
care for the child, but there are educational problems. The child welfare authorities then offer assistance, 
and in a number of Member States, after everything else has failed, the most intensive kind of assistance 
would be either secure care for the child (i.e. in a locked institution) or an educational placement abroad 
in  an  environment  providing  similar  isolation  through  the  circumstances  (foreign  language,  rural 
location).  These  children  then  follow  an  educational  programme,  and  their  carers  are  in  most  cases 
trained,  paid  and  supervised  by  the  child  protection  authorities  of  the  sending  Member  State.  Under 
national law, child welfare authorities are normally only allowed to use such placements abroad as a last 
resort when everything else has failed. In case of such failure, the child or juvenile often has to leave the 
current  domestic  placement  immediately  because  the  situation  has  escalated  and  become  unbearable, 
putting this child and/or others at risk. 

At their annual meetings held with the Commission since 2006, the Central Authorities of the Member 
States under the Regulation have regularly reported that sometimes it takes several months or even more 
than  a  year  until  it  is  even  established  whether  consent  is  required  in  a  particular  case.  If  consent  is 
required,  the  consultation  procedure  as  such  has  to  follow  and  is  reported  to  be  equally  lengthy. 
Moreover, requesting Central Authorities repeatedly reported that they did not receive any answer at all 
from requested States. 

In  a  statistical  survey  carried  out  by  the  European  Commission  during  the  first  quarter  of  2015,  the 
Central  Authorities  of  20  EU  Member  States  reported  that  for  the  years  2012  to  2014,  they  had 
registered a  total  of 314, 409 and 360 requests,88 respectively, originating  from courts  and authorities 
within their own Member State for cross-border placement in other Member States. For the same years, 
only  162,  251  and  171  requests,  respectively,  for  cross-border  placement  in  their  own  Member  State 
have  been  reported  by  requested  Central  Authorities.89  The  discrepancy  between  the  numbers  of 

85 Article 56 of the Regulation. 
86 Article 55 (d) of the Regulation. 
87 In this respect, these placements are similar to adoption which is outside the scope of the Regulation. 
88 Actual figures are even higher because the involvement of the Central Authorities is not mandatory, and in particular in 
areas  close  to  the  borders  many  cross-border  placements  are  made  through  direct  contact  between  the  national  authorities 
involved. In most Member States there are no centralised statistics for these placements. 
89 One Member State to which an important number of requests for placement in their State were sent did not respond to the 
statistical survey of the Commission so these requests have to be disregarded here. 

48 

 
 
                                                            
outgoing and incoming  placements is  often caused by the fact that requests  originating  in  the Central 
Authorities'  own  Member  State  for cross-border  placement  of  a  child  in  another Member  State  in  the 
years  2012,  2013  and  2014  were  still  being  processed  by  the  requesting  Central  Authorities  in  early 
2015  and  had  not  even  been  forwarded  to  the  requested  State.  The  likely  reason  is  the  uncertainty 
described above. 

Requested Central Authorities also reported problems with the application of the provision. Placement 
as  an  educational  measure  is  only  known  in  about  five  or  six  Member  States  which  generate  a 
considerable number of outgoing cross-border placements, e.g. Germany between 160 and 220 per year 
and  Luxembourg  around  100  per  year  through  Central  Authorities,  plus  an  unknown  number  without 
Central Authority involvement. Most Member States not knowing these measures have not enacted any 
implementing provisions for such incoming placements. Consequently, the authorities of the requested 
State are unable to process incoming requests. 

If consent is required for a certain placement, the latter may only be ordered by the sending State after 
consent was obtained from the receiving State.90 Only then, the child may travel to the receiving State. 
In practice, however, many requesting authorities order placement and send the child to the receiving 
State while the consultation procedure is still pending or even at the moment it is initiated because they 
consider the placement as urgent and are aware of the length of proceedings. Receiving States therefore 
complained that children were often already placed before consent had been given. 

Non-compliance with the consultation procedure is a ground for refusal of recognition of the placement 
order.91  Therefore,  the  placement  of  the  child  abroad  lacks  a  legal  basis  in  these  cases,  and  the  legal 
situation  of  the  child  present  in  another  Member  State  without  his  or  her  parents  is  unclear.  The 
European Court  of Justice has  ruled that  irregularities  which give rise  to doubts whether consent  was 
validly  given  can  be  corrected,  and  some  receiving  States  conclude  from  this  judgment  that  no 
correction is possible if consent was not given at all prior to the placement of the child. Others do not 
grant consent for the period already passed but for the remaining future duration of the placement. In 
some cases receiving States insisted on the immediate repatriation of children placed without their prior 
consent, affecting children whose particularly vulnerable situation gave rise to the placement. 

The length of the proceedings, as voiced by the national experts interviewed to evaluate the operation of 
the  Regulation  and  by  stakeholders  contributing  to  the  public  consultation  (60%),  can  easily  be 
identified as the central problem. It leads to circumvention of the procedure, to illegal placements and to 
non-placement  of  children  in  need  of  placement.  This  delay  is  not  caused  by  a  lack  of  use  of 
information  technology  and  electronic  means  of  communication  as  the  Central  Authorities  normally 
communicate by e-mail and fax in these cases. The main cause of delay is the fact that the Regulation 
refers  to  the  national  law  of  the  requested  State  for  defining  whether  consent  is  required,  and  for 
determining what must be submitted to obtain it. 

The  Regulation  refers  to  national  law  for  determining  whether  consent  is  required  for  a  particular 
placement. This was intended to avoid creating new bureaucratic procedures for placements which did 
not require any procedure if occurring within a State. In reality, however, the additional step to find out 
whether consent is needed has generated far more bureaucracy and loss of time than a universal consent 
requirement. This has been widely recognised in the specific discussions among Central Authorities92 as 
well as by national experts. 

Moreover, the Regulation is silent on which authority is to give consent, the information to be provided 
in an application, the requirements for consent to be given, grounds for refusal and who is to bear the 
costs  for  the  placement.  All  this  is  determined  by  national  law  and  needs  to  be  found  out  by  the 
authority contemplating a cross-border placement. 

90 Article 56 (2) of the Regulation. 
91 Article 23 (g) of the Regulation. 
92 The issue was discussed annually at the Central Authorities' annual meetings from 2008 to 2015. 

49 

 
 
                                                            
In 2011, after several years of preparation a chart showing (1) whether consent for incoming educational 
placements was required in each Member State, (2) which authority was competent to give consent and 
(3) which documents should accompany the request was established in the framework of the European 
Judicial  Network  in  civil  and  commercial  matters.  This  initiative  was  taken  in  2008  by  the  German 
Central  Authority  which  asked  the  Central  Authorities  of  all  other  Member  States  to  provide 
information  on  these  three  aspects.  The  Commission  welcomed  and  supported  this  initiative  and 
annually circulated reminders to those Member States which had not yet responded. By 2011 responses 
had  been  received  from  about  half  of  the  Member  States,  and  it  was  possible  to  draw  up  a  table 
reflecting them. This chart was then circulated annually by the Commission with a request to Member 
States to insert updates where applicable. By 2013 the chart appeared nearly complete as almost all of 
the  Member  States  have  responded.  Only  one  country  (Poland)  generally  exempts  educational 
placements  from  the  consent  procedure  because  Poland  considers  those  placements  organised  upon 
request of, or in agreement with, the holders of parental responsibility as being outside the scope of the 
Regulation.  For  educational  placements  in  Poland,  it  is  therefore  clear  from  the  outset  that  no 
consultation  or  even  information  procedure  needs  to  be  started.  In  the  other  Member  States,  consent 
normally  needs  to  be  obtained,  but  there  are  varying  exceptions  (sometimes  mandatory,  sometimes 
discretionary) in many legal systems. 

In spite of the chart, at the annual meetings of Central Authorities it is still regularly reported that in the 
handling of individual cases, the chart does not solve the problem. Since the consent procedure does not 
apply  to  all  cases,  and  the  exceptions  are  determined  by  the  national  law  of  the  requested  State, 
normally the competent authorities of the latter State have to assess the full application first in order to 
determine whether consent is necessary or one of the exceptions applies. Moreover, States sometimes 
require different documents and apply different procedures. The major problem, however, remains that 
many  Member  States  do  neither  have  implementing  provisions  on  substance  nor  procedure  to  handle 
these  requests,  setting  out  requirements  for  the  request  and  conditions  as  well  as  competencies  for 
consent. Article 33 of the 1996 Hague Convention, which served as a model for the Regulation's rule, 
establishes  minimum  requirements  for  a  request  for  consent  which  were  not  taken  over  into  the 
Regulation:  A  report  on  the  child  and  the  reasons  for  the  envisaged  placement  must  be  transmitted 
under  the  1996  Hague  Convention.  Under  the  Regulation  which  is  silent  on  this  point,  requesting 
authorities  often  send  just  a  simple  letter  requesting  consent  without  transmitting  further  personal 
information  on  the  child  and  the  foster  family  in  order  to  avoid  data  protection  issues.  Only  after  the 
authorities of the receiving State have informed them about the documents needed, they will transmit 
them  because  at  that  stage  they  have  evidence  that  the  documents  are  necessary  for  processing  the 
request. This multi-step approach causes further delays. 

Equal treatment for all children in need of placement throughout the Union and the best interests of the 
children concerned are currently seriously undermined by the fact that many Member States have not 
enacted legislation to implement the Regulation’s consent procedure for cross-border placements. As a 
result,  it  is  practically  impossible  to  carry  out  a  lawful  placement  of  a  child  under  the  Regulation  in 
these Member States. A few Member States, on the other hand, have established clear procedures for 
incoming requests, and the decision on consent is normally given about two months after receipt of the 
request. This time is required because in the receiving State, a number of public authorities need to be 
consulted  before  consent  is  given  or  refused  to  the  requesting  State  (child  welfare  authorities,  aliens 
authority, sometimes a court). They are normally consulted in parallel. 

About half of the requests for consent to outgoing placements received in 2012-2014 have been reported 
to the Commission by the requesting Central Authority but not yet by the requested Central Authority. 
This means that they either have not yet been forwarded to the requested Central Authority or have not 
yet been registered by the latter. These requests still have to be processed. The current annual number of 
300-400 placement requests through Central Authority channels can be expected to rise because of the 
unreported  number  of  direct  placements  without  consultation  procedure  which  already  exists,  and 
because of growing awareness of the Regulation's rule on cross-border placement among child welfare 
authorities. As currently many Member States are unable to process incoming requests because there are 

50 

 
 
no implementing measures, the rise will lead to even more illegal placements  before consent is given, 
and  will  also  prevent  placements  of  vulnerable children in  need.  Notwithstanding  the  clear  obligation 
established by the Court of Justice, infringement proceedings would be unlikely to achieve the objective 
of equal treatment for all children in need of placement throughout the Union because these proceedings 
against single States would not lead to a uniform and coherent treatment of all applications for cross-
border placement in the EU. 

4.2. 

Subsidiarity 

The  Union  has  shared  competence  under  Article  81  para. 2  TFEU  for  measures  aimed  at  ensuring 
(d) cooperation  in  the  taking  of  evidence,  (e) effective  access  to  justice,  and  (f) the  elimination  of 
obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of 
the rules on civil procedure applicable in the Member States. Under the current text of the Regulation, 
the  issues  regarding  placement  identified  in  the  problem  description  are  left  to  self-regulation  of 
Member States. In 2012, the Court of Justice ruled that “Member States are (…) required to establish 
clear rules and procedures for the purposes of the consent referred to in Article 56 of the Regulation, in 
order to ensure legal certainty and expedition. The procedures must, inter alia, enable the court which 
contemplates  the  placement  easily  to  identify  the  competent  authority  and  the  competent  authority  to 
grant or refuse its consent promptly.” Moreover, most Member States lack general rules that could be 
used to implement this provision and did not enact specific implementing measures either. Even if they 
did now, these different national rules would be unlikely to implement Article 56 of the Regulation on 
cross-border  placements  in  a  coherent  and  uniform  manner.  It  is  therefore  maintained  that  only  the 
creation  of  autonomous  minimum  rules  in  the  Regulation,  applicable  to  all  cross-border  placements 
originating from a court or authority, can remedy this problem. 

4.3.  Objectives 

General objectives: 

(a)  to safeguard the best interests of the child by ensuring that children in need can be placed93 

Specific objectives: 

(a)  to  simplify  the  procedure  for  cross-border  placements  of  children  by  reducing  the  delays94 

associated with it 

4.4.  Description of Policy Options 
Option 1: Baseline scenario 

This  option  does  not  involve  any  legislative  intervention.  The  application  of  "soft  law  measures"  as 
already  developed  by  the  Commission  in  cooperation  with  the  Member  States  would  continue.  Such 
measures  include  the  elaboration  and  regular  update  of  the  chart  mentioned  above,  a  Practice  Guide 
drawn up by the Commission,95 and the organisation of annual meetings of the Central Authorities of all 
Member  States,  enabling  them  to  have  an  exchange  of  views  on  general  matters  relating  to  the 
application of the Regulation and bilateral meetings to discuss difficult individual cases. 

93 Recital 5 of the Regulation speaks about equality of children. This was reiterated by CJEU 27 November 2007, Case C-
435/06 – C, para. 47. 
94 Reducing the length of proceedings involving children is one of the recommendations of the Fundamental Rights Agency 
on child-friendly justice: see FRA, Child-friendly justice – perspectives and experiences of professsionals, Summary, 2015, 
p. 4. 
95 
the 
http://ec.europa.eu/justice/civil/files/brussels_ii_practice_guide_en.pdf. 

IIa  Regulation, 

Practice  Guide 

the  Brussels 

application 

edition 

2015, 

3rd 

for 

of 

51 

 
 
                                                            
Option 2: Creation of an autonomous consent procedure to be applied to all cross-border placements, 
flanked by a time limit of eight weeks for the requested Member State to respond to the request 

This  option  includes  the  continued  application  of  the  soft  law  measures  described  in  Option  1  plus 
introduction of the following new rules: 

-  Making  consent  of  the  receiving  State  mandatory  for  all  cross-border  placements  originating 

from a court or authority in a Member State 

- 

- 

Introducing minimum requirements for documents to be submitted with the request for consent: 
the  requesting  authority  has  to  submit  a  report  on  the  child  and  set  out  the  reasons  for  the 
contemplated cross-border placement 

Introducing  a  rule  on  translation  requirements:  the  request  has  to  be  accompanied  by  a 
translation into the language of the requested Member State 

-  Channelling all requests through Central Authorities 

- 

Introducing a time limit of eight weeks for the requested State to decide about the request 

Option 3: Creation of an autonomous consent procedure to be applied to all cross-border placements, 
flanked by a period for the requested Member State to object and harmonised grounds for refusal 

Option 3 corresponds to Option 2 but instead of a time limit for the requested State to decide about the 
application, a presumption of consent would be established if the requested State has not objected to the 
placement  within  a  time  to  be  fixed  in  the  Regulation.  This  solution  follows  Article  33  of  the  2000 
Hague Convention on the International Protection of Adults96. In addition, an exhaustive list of grounds 
for refusal would be added. 

4.5.  Analysis of impact of Policy Options 

4.5.1.  Option 1: Baseline scenario 

For the impacts please see the problem definition. There are no other legislative initiatives at global or 
Union  levels  forthcoming  on  these  issues.  The  disharmony  with  the  consultation  procedure  under  the 
1996 Hague Convention would remain, creating double standards for placements under the Convention 
and  the  Regulation  and  rendering  the  latter  less  effective  than  the  Convention.  Even  if  more  or  all 
Member States were to enact implementing provisions on the consultation procedure, strong differences 
will remain as to whether it applies at all, and under which conditions. 

4.5.2.  Option  2:  Creation  of  an  autonomous  consent  procedure  to  be  applied  to  all  cross-border 
placements, flanked by a time limit of eight weeks for the requested Member State to respond to 
the request 

Effectiveness  to  meet  objectives:  The  simplification  would  be  achieved  and  the  problem  of  delay 
would be best overcome by establishing autonomous rules in the Regulation which follow the example 
of the 1996 Hague Convention. 

If consent needs to be obtained for all cross-border placements the time-consuming first step of finding 
out  whether  consent  is  required  for  a  particular  placement  will  no  longer  be  necessary.  Likewise,  the 
establishment of autonomous minimum requirements for a request (a report on the child and the reasons 
for the placement) and the corresponding translation requirements will speed up proceedings because 
the requesting authority will know from the outset what is necessary and can attach it to the request. The 
requesting  Central  Authority  receiving  the  request  will  thus  be  able  to  forward  it  immediately  to  the 
requested  Central  Authority.  An  explicit  legal  basis  will  moreover  remedy  data  protection  concerns 
about sending information not required. 

96 This Convention entered into force on 1 January 2009. It currently applies only in seven Member States (Austria, Czech 
Republic, Estonia, Finland, France, Germany and the United Kingdom). 

52 

 
 
                                                            
Delays  will  be  further  reduced  by  channelling  all  applications  through  Central  Authorities  which 
would create a knowledge pool within the Central Authority and enable the latter to provide information 
on the situation in other Member States to a domestic authority contemplating a placement abroad. A 
further time saving will be achieved as the Central Authority of the requesting State does not need to 
find out which authority is competent to grant consent in the requested State; it simply needs to transmit 
the  request  to  the  Central  Authority  of  the  requested  State  which  will  then  handle  the  consultation 
procedure in its State. A fixed time limit complementing this procedure takes account of the urgency of 
most placements and the precarious situation of the children waiting to be placed. The length of eight 
weeks has been chosen in light of the steps that the requested Central Authority needs to perform. In all 
Member States, as the Commission has learned from the annual meetings of Central Authorities, several 
national authorities have to be consulted in parallel and give their input to the consent procedure (child 
welfare authorities examining the family or institution where the child is supposed to be placed, aliens 
authorities examining residence and possibly visa issues if the child is not an EU national, authorities 
dealing with the funding of placement measures and possibly others). Experience of Central Authorities 
reported  to  the  Commission  shows  that  in  Member  States  which  have  clear  rules  on  the  placement 
procedure, a decision can normally be reached after consultation within the Member State within eight 
weeks;  so  this  is  an  ambitious  but  nonetheless  realistic  time  limit  which  was  suggested  also  by  the 
Member States; in particular, the UK government advocates for it. As the consultation procedure is an 
internal  administrative  procedure  among  public  authorities,  considerations  like  the  right  to  a  fair  trial 
which requires additional time for the defendant  to  prepare their case in child  abduction cases do not 
apply here; hence the period can be shorter. 

As for possible interferences with other global, Union or Member State initiatives, see 4.5.1. 

Cost savings: The proposal will lead to cost savings because the first step (inquire whether consent is 
necessary) will be eliminated and the second step will become more streamlined because all necessary 
documents can be attached to the first mailing. Human resources can be redirected to new cases rather 
than to numerous inquiries aiming at the completion of pending requests. After sending a first question 
whether the  consultation  procedure  is  needed  for  a  particular  case, two  or  three reminders  have  to  be 
sent to some Member States receiving a large number of placements. So the abolition of this step would 
relieve the requesting Central authority from these three or four letters in each case, freeing resources at 
the level of the administrative assistants or archivists supervising deadlines, of the case workers dealing 
with the content, of the secretarial staff handling the letters and/or mailings, of translation services, and 
of any hierarchy having to approve any outgoing correspondence. These savings cannot be quantified 
for two reasons: because of the different training and remuneration level of Central Authority staff in 
different  Member  States97  and  –  intrinsically  linked  with  the  former  –  because  of  the  differences  in 
workflow.  In  some  Member  States  the  case  worker  directly  sends  out  most  of  the  correspondence 
(writing  an  e-mail  him-  or  herself  and  not  needing  approval  of  superiors)  while  in  others,  internal 
protocol requires a formal letter with letterhead on paper, to be drafted by the case worker and prepared 
by  administrative  assistants,  which  first  needs  to  be  approved  by  some  hierarchy  (sometimes  the 
director  general  or  even  the  deputy  minister)  in  the  local  language  before  it  may  be  translated,  then 
signed, scanned, e-mailed and posted as well. Obviously eliminating four of these letters would save far 
more human resources, time and costs than in Member States where one person sends out four e-mails. 

As the need for a placement is generated by the needs of the particular child, it is not expected that the 
improved rules will lead to more requests for placement but only to swifter handling. 

Stakeholders' views: 60% of respondents in general and 61% of those indicating practical experience 
in this field were of the view that the provision on cross-border placement does not function well. Only 
25% of private individuals found that it works well. The introduction of uniform information standards 
between Central Authorities was suggested as the difference of powers between authorities in Member 

97 See supra at 3.1., last paragraph. 

53 

 
 
                                                            
States leads to delays and confusion. 56% of respondents in general and 59% of those with experience 
in the area suggested this improvement. A time limit was also suggested by two Member States. 

4.5.3.  Option  3:  Creation  of  an  autonomous  consent  procedure  to  be  applied  to  all  cross-border 
placements  flanked  by  a  period  for  the  requested  Member  State  to  object  and  harmonised 
grounds for refusal 

Effectiveness to meet objectives: This option would have the same effect as Option 2 but goes further. 
Inactivity of the requested State would amount to consent under this Option. This rule would provide 
even more legal certainty. The harmonisation of the grounds for refusal would increase predictability. 

As  for  possible  interferences  with  other  global,  Union  or  Member  State  initiatives,  see  4.5.1.  This 
Option,  however,  would  continue  to  provide  for  a  different  treatment  of  placements  under  the 
Regulation and under the 1996 Hague Convention, this time by going beyond the 1996 Hague system 
and moving to an even stricter and possibly more efficient system of presumed consent. 

Cost-savings: This option would have the same effect as Option 2 as to costs. 

Stakeholders' views: See under Option 2. In addition, Member States' representatives commented on 
the additional element of Option 3 (presumption of consent in case of silence) during a hearing on 12 
October 2015. They voiced opposition because the consequences of a cross-border placement vary from 
one legal system to the other. In some Member States, consent is only granted if the requesting State 
offers to fund and supervise the placement whereas in others, consent means that the child will become 
integrated into the child welfare system of the receiving State which will then fund and supervise the 
placement carried out in its territory by a foreign court or authority. There is strong opposition among 
Member States to be committed to such funding and supervision obligations by mere silence. 

4.6.  Comparing the Options and preferred Policy Option 

Objectives/Impacts 

Option 1 

Option 2 

Option 3 

Baseline 
scenario 

Creation  of  an  autonomous 
to  be 
consent  procedure 
applied  to  all  cross-border 
placements, flanked by a time 
limit 
requested 
the 
Member  State  to  respond  to 
the request 

for 

Creation  of  an  autonomous 
consent procedure to be applied 
to  all  cross-border  placements, 
flanked  by  a  period  for  the 
requested  Member  State 
to 
object and harmonised grounds 
for refusal 

the 

Safeguard 
best 
interests  of  the  child  by 
ensuring  that  children  in 
need can be placed98 

This  option  would  improve  the 
protection  of  the  best  interests 
of  the  child  as  all  children 
would  be  subject  to  the  same 
cross-border 
for 
procedure 
placements 
the 
throughout 
Union. 

However,  the  outcome  of  the 
request 
the 
for  consent 
to 
still  differ, 
placement  may 
because  the  grounds  for  refusal 
are still defined by national law 
children  might 
and 
therefore  not  benefit 
from 
cross-border placement intended 
for 
the  requesting 
authorities. 

them  by 

some 

This option would improve the 
protection of the best interests of 
the child as all children would be 
subject to the same procedure for 
cross-border placements 
throughout the Union. 

Given that the outcome of the 
request for consent to the 
placement would also be the same 
in every Member State if grounds 
for refusal were made uniform, all 
children would benefit from it.  

98 Recital 5 of the Regulation. This was reiterated by CJEU 27 November 2007, Case C-435/06 – C, para. 47. 

54 

 
 
 
 
                                                            
Reduce  delays  associated 
with  cross-border  child 
placements 

Cost savings 

Proportionality 

0 

0 

This  option  would 
ensure 
swifter procedures for obtaining 
consent  to  cross-border  child 
placements. 

This option would save costs as 
fewer  human  resources  would 
be  needed  due  to  streamlined 
procedures. 

This  option  would  have  the  same 
impact. 

This  option  would  have  the  same 
impact. 

option 

respects 
This 
proportionality  as  it  requires 
explicit consent. 

This  option  would  not  respect 
the proportionality as it relies on 
a "silent" presumption of consent. 

Option  2  is  the  preferred  option.  It  respects  proportionality  and  it  is  less  intrusive  than  Option 3. 
Uniform  grounds  for  refusal  would  moreover  go  beyond  merely  "promoting  the  compatibility  of  the 
rules  on  civil  procedure  applicable  in  the  Member  States"  as  they  interfere  with  the  Member  States' 
substantive national law on child welfare. The preferred option meets also the operational objectives to 
introduce  minimum  requirements  for  applications  for  consent  and  to  set  time  limits  for  authorities  to 
respond to requests. 

5.  

RECOGNITION AND ENFORCEMENT OF JUDGMENTS 

5.1.  Problem definition 
The  evaluation  study  has  collected  feedback  from  a  wide  range  of  national  experts  (mostly  legal 
practitioners) who confirm that parents and, in particular, children suffer from the complex, lengthy and 
costly  procedures  they  have  to  go  through  in  order  to  obtain  enforcement  of  a  parental  responsibility 
judgment  abroad.  This  is  mainly  because  judgments  on  custody  and  placement  decisions  cannot  be 
automatically enforced in another Member State. Recognition of all judgments under the Regulation is 
by  operation  of  law  unless  and  until  it  is  successfully  challenged  by  the  other  party  before  a  court. 
Recognition is the indispensable precondition for any other steps that might follow. It was recalled by 
some Member States99 and confirmed by legal experts in the evaluation study as well as in the meeting 
with Member States' representatives that sometimes recognition is all that is needed, e.g. when a court 
only  orders  that  both  parents  have  joint  custody.  In  some  instances,  though,  the  order  explicitly  or 
implicitly imposes a duty on the defendant parent to do or not to do something, e.g. to hand over the 
child to someone  who  has  been granted sole custody. If the person obliged by the judgment does  not 
comply with it voluntarily, State organs will enforce it through coercive measures. 

In order to be enforced in another Member State, the Regulation requires a judgment to be enforceable 
in the State of origin. This is not the case in many legal systems if the judgment is still subject to appeal, 
but  in  several  legal  systems  provisional  enforceability  can  be  ordered.  In  other  legal  systems,  the 
judgment is provisionally enforceable but the appellate court can stay enforcement while the appeal is 
pending.  Given  the  different  time  limits  for  filing  an  appeal,  the  number  of  possible  appeals  and  the 
length  of  appeal  proceedings,  it  can  take  very  long  for  a  judgment  to  become  enforceable  even  in  its 
State of origin. 100 

Provided that the judgment is at least provisionally enforceable in the State of origin, for cross-border 
enforcement  a  court  in  the  Member  State  where  enforcement  is  sought  first  has  to  "validate"  the 
decision by declaring it to be enforceable also in that State. This is done in a special intermediate court 

99 This issue was signalled in the Commission's application report (2014) 226 final, p. 10. 
100 The time limits for filing an appeal vary significantly, namely between five days and three months, whereas most Member 
States’ time limits are set between 14 and 30 days. Cf. 2007 Comparative study on enforcement procedures of family rights, 
prepared 
at: 
available 
ASSER 
http://ec.europa.eu/civiljustice/publications/docs/family_rights/study_family_rights_synthesis_report_en.pdf, 
p. 41.  The 
number of appeals to courts of different level varies from one to three in most Member States. 

Institute, 

T.M.C. 

by 

55 

 
 
 
                                                            
procedure for obtaining "exequatur", which takes place after the judgment has been issued and become 
enforceable in one Member State and before concrete measures of enforcement can be taken in another 
Member  State101.  In  the  exequatur  proceedings, the  defendant  parent can  invoke  grounds  for  refusing 
recognition and the declaration of enforceability which are listed in the Regulation. However, even if a 
parent successfully completes the exequatur step, other proceedings, namely those related to the actual 
enforcement of a judgment, will need to be launched and thereby add to the overall time needed to see 
the judgment executed, and to the costs incurred. 

In  2005,  the  Regulation  abolished  the  need  for  exequatur  concerning  access  rights  and  some  return 
orders. If a judgment granting access rights is enforceable in the State of origin and the court of origin 
issues a certificate confirming the enforceability and that certain standards of procedure were met, the 
judgment  is  directly  enforceable  in  all  other  Member  States,  and  recognition  cannot  be  challenged 
anymore either (see also below on access rights; return orders were discussed in chapter 3). 
In this respect, a study of the European Parliament102 as well as petitions submitted to the Commission, 
highlight  contradictory  situations  where  a  Member  State  must  enforce  access  rights  under  the 
Regulation (and maintenance claims for the child under the Maintenance Regulation) while, at the same 
time,  the  recognition  and/or  enforcement  of  custody  rights103  granted  in  the  same  judgment  may  be 
challenged and perhaps refused in the same Member State. Parties have to bear court fees for processing 
the application. Often a lawyer is hired to prepare the documentation and handle the procedure abroad. 
Finally, costs for translation104 and service of documents add to the bill. 

The  delay  and  costs  involved  in  obtaining  cross-border  recognition  and  enforcement  of  judgments 
discourage  people  from  making  full  use  of  the  possibilities  offered  to  them  by  the  right  to  free 
movement in the EU. 

The time for obtaining exequatur varies between the Member States; it can take from a couple of days 
to several months, depending on the jurisdiction and the complexity of the case. The time indicated does 
not take into account the time required for collecting the documents necessary for the application and 
translations. These data are available only for civil and commercial matters but as the procedure is the 
same  in  family  matters,  one  may  assume  that  the  duration  would  be  similar.  If  an  appeal  is  lodged 
against the grant or refusal of exequatur, this delay increases considerably: appeal proceedings can take 
up  to  two  years  in  some  Member  States.  This  is  particularly  frustrating  for  parents  who  expect  that 
decisions concerning children take effect without unnecessary delay (see Annex 8 concerning delays for 
obtaining exequatur in the Member States). 

Above all, the delays in obtaining enforcement can have very negative consequences on children given 
that  time  is  of  the  essence  in  relation  to  decisions  on  parental  responsibility  matters  in  light  of  the 
irreversible consequences that may arise. 

The  costs  for  obtaining  exequatur  equally  vary  throughout  the  EU.  For  a  straightforward  case  of 
exequatur, identifiable costs (which include court and lawyers' fees, costs for service of documents and 
translations) range from € 1,100 (in Bulgaria) to almost € 4,000 (in the United Kingdom). On average, 

101 Enforcement measures are ordered under the national law of the requested State. In several Member States this is done in 
one step together with granting exequatur while in other Member States this is a separate step. 
102 2010 Study on the parental responsibility, child custody and visitation rights in cross-border separations, prepared by the 
Institut Suisse de droit comparé (ISDC), available at:  
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2010/425615/IPOL-PETI_ET(2010)425615_EN.pdf. 
103  In  some  Member  States,  a  judgment  attributing  custody  to  a  parent  is  considered  as  a  mere  status  decision  with  no 
enforceable content. In other Member States, the attribution of custody also implies that the person who was granted custody 
can claim the handover of the child from the other parent. Recognition of the judgment in other Member States implies that it 
must be given the same effect which it has in the State of origin. 
104 Translation of the judgment to be enforced and of the mandatory certificate accompanying it is not mandatory under the 
Regulation but may be required by the courts of the Member State of enforcement (Article 38(2)). Costs of translations have 
been calculated on a basis of a 10 page document x € 30 per page = € 300. 

56 

 
 
                                                            
€ 2,200  have  to  be  paid  for  processing  the  application.  This  amount  can  increase  exponentially  in  a 
more complex or contested case. 

The discussion with Member States' representatives, preceded by a request to inform about the number 
of refusals to recognise and declare enforceable a decision from another Member State, and anecdotal 
cases  collected in  the evaluation study revealed that  in  a vast  majority of cases  (more  than 90%), the 
exequatur procedure is a pure formality as there are no reasons to refuse recognition and the declaration 
of  enforceability  of  the  foreign  judgment.  Also  appeals  against  the  decisions  to  grant  exequatur  are 
rarely successful. Only in a very low number of cases does the procedure actually lead to a refusal of 
recognition and the declaration of enforceability.105 

The abolition of exequatur for decisions concerning rights of access 

The above-mentioned abolition of the need for exequatur concerning access rights is generally seen as a 
positive development. Nevertheless, it has been criticised to some extent by the national experts in the 
evaluation study as the system does not always leave sufficient leeway to protect the rights of the child 
which  is  the  "object"  of  the  enforcement  (and  of  the  judgment's  debtor/defendant  parent)  if 
exceptionally  the  situation  so  requires.  If  the  judgment  on  access  rights  is  enforceable  (albeit  only 
provisionally)  and  accompanied  by  the  certificate  issued  by  the  court  of  origin  (which  replaces 
exequatur by the State where enforcement is sought), it has to be enforced in all other Member States. 
According to the case law of the Court of Justice, even a stay of enforcement proper has to be requested 
from the court of origin of the judgment, and not in the State where enforcement is sought. However, 
the  defendant  parent  is  not  served  with  the  certificate  and  may  learn  about  its  existence  only  at  the 
moment when enforcement actually starts. As a result, it is de facto impossible for the judgment debtor 
to  challenge  the  validity  or  correctness  of  the  certificate  in  the  Member  State  of  origin  before 
enforcement takes place, and the Regulation as interpreted by the Court of Justice prohibits any such 
challenge in the Member State where recognition and enforcement are sought. 

Hearing of the child 

In addition, the case law of the Court of Justice106 and the evaluation study demonstrated that there are 
discrepancies in the interpretation of the grounds for non-recognition. The Regulation is based on the 
principle that children’s views must be taken into account in cases concerning them as long as this is 
appropriate in  light  of  their  age  and  maturity  and  in  line  with  their  best  interests.  A  frequently raised 
ground of non-recognition has been the fact that the judgment was given without the child having been 
given  an  opportunity  to  be  heard107.  The  national  rules  and  practices  on  hearing  children  vary 
significantly. For example, the age at which a child is considered sufficiently mature to present his/her 
views ranges from 10 to 15. In some Member States, judges also hear children that are much younger 
(for  example  2-3  years  old)  if  they  deem  this  appropriate  in  specific  cases.  Also,  the  term  "hearing" 
seems  to  have  different  meanings  in  the  various  legal  systems,  ranging  from  "having  been  given  an 
opportunity to express him- or herself" (which could take place outside court) to a formal hearing of the 
child before a court. 

In this connection, difficulties arise due to the fact that Member States have diverging rules governing 
the hearing of the child. In particular, Member States with stricter standards regarding the hearing of the 
child  than  the  Member  State  of  origin  are  encouraged  by  the  current  rules  to  refuse  recognition  and 

105 Representatives of the Member States in the meeting on 12 October 2015 confirmed that data concerning the number of 
cases  resulting  in  the  non-recognition  of  judgments  is  not  collected  at  the  national  level  in  most  Member  States.  Some 
Member States could provide a few exemplary judgments where non-recognition was decided. 
106 Case C-491/10 – Aguirre Zarraga, supra note 75. 
107  Other  grounds  for  the  non-recognition  of  judgments  reported  by  Member  States  were  the  faulty  service  of  documents 
where the judgment was given in default of appearance, the failure to comply with the procedure laid down in the Regulation 
for the placement of a child in another Member State and the fact that the judgment was given without the applicant parent 
having  been  given  an  opportunity  to  be  heard.  These  are  important  considerations  referring  to  the  right  to  an  effective 
remedy and to a fair trial guaranteed by Article 47 of the Charter. 

57 

 
 
                                                            
exequatur if  the  hearing  of  the  child  does  not  meet  their  own  standards.  Such  refusals  by  States  with 
high standards, in the opinion of the Commission's expert group, do not enhance compliance of States 
having lower standards for hearing the child with the UN Convention on the Rights of the Child and the 
Charter of Fundamental Rights of the EU; therefore a more forward-looking solution should be found. 

In addition, the importance of hearing children in all cases on matters of parental responsibility is not 
highlighted in the Regulation in general terms, but only in relation to return proceedings. If a judgment 
is  given  without  having  heard  the  child,  there  is  a  danger  that  the  judgment  may  not  take  the  best 
interest of the child into account to a sufficient extent. 78% of the respondents to the public consultation 
acknowledged  the  important  role  of  the  hearing  of  the  child  in  avoiding  problems  relating  to  the 
recognition and enforceability of judgments. 

Actual enforcement of judgments 

There is almost unanimous consensus between all stakeholders that the actual enforcement of parental 
responsibility  judgments  is  an  area  in  need  of  improvement  even  if,  at  the  same  time,  the  ideas  for 
improvement differ widely. 83% of the respondents to the public consultation point to delays and even 
non-enforcement and call for an amendment in this area. This is mainly due to the fact that, as reported 
in  the  evaluation  study,  in  the  majority  of  the  complaints  submitted  to  the  Commission108  and 
highlighted in the case law of the Court of Justice, even if the affected parent obtained an  exequatur, 
decisions on parental responsibility are often enforced late or not at all. Efficient enforcement depends 
on  the  national  structures  put  in  place  to  ensure  enforcement.  Once  an  order  has  been  made,  it  is 
important to have effective measures available for enforcing it109 while it has to be borne in mind that 
for  enforcement  against  children,  it  must  still  be  possible  to  react  quickly  to  any  temporary  or 
permanent  risks  to  the  child's  best  interest  which  might  be  caused  by  enforcement.  The  legal  and 
practical approach to the enforcement of family orders varies among Member States, in particular with 
regard  to  the  enforcement  measures  that  may  be  taken.  In  most  legal  systems  one  or  more  of  the 
following "coercive enforcement measures" exist: (1) fines,110 (2) imprisonment,111 and (3) the physical 
removal of the child from the parent by enforcement officers.112 These three types of measures not only 
come under different labels,113 but not all of them exist in every legal system. Furthermore, even where 
such measures do exist in the law, they are often not ordered due to considerations of the child's best 
interest. 
As  indicated  in  a  specific  study  dedicated  to  the  enforcement  of  family  rights114,  Member  States 
demonstrate  a  wide  variety  in  approaches  towards  the  enforcement  of  family  law  decisions.  In  most 
Member  States  a  change  of  circumstances  has  an  effect  on  the  enforceability.  The  legal  effect  of  a 
change  of  circumstances  is  not  the  same  in  all  Member  States;  however,  in  most  Member  States,  in 
domestic cases (where a family judgment given in the same State needs to be enforced), an amendment 

108 Citizens’ complaints refer mostly to burdensome enforcement procedures, lengthy proceedings and diverging practices of 
national authorities which in some instances lead to non-enforcement. 
109  Guide  to  Good  Practice  under  the  Hague  Convention  of  25  October  1980  on  the  Civil  Aspects  of  International  Child 
Abduction,  Part  IV  –  Enforcement,  available  at  http://www.hcch.net/upload/guide28enf-e.pdf.  All  information  in  this 
paragraph was taken from the Guide and the study carried out in its preparation (Enforcement of orders made under the 1980 
Convention  -  A  comparative  legal  study  -,  Prel.  Doc.  No 6  of  October  2006  for  the  attention  of  the  Fifth  meeting  of  the 
Special  Commission  to  review  the  operation  of  the  Hague  Convention  of  25 October  1980  on  the  Civil  Aspects  of 
International 
at 
https://assets.hcch.net/upload/wop/abd_pd06e2006.pdf. 
110  Available  in,  e.g.,  Austria,  Bulgaria,  Czech  Republic,  Finland,  France  (astreinte:  a  recurring  penalty  whereby  the 
contemnor is fined a fixed sum for each day that he/she does not comply with the court order), Germany, Greece, Latvia, 
Lithuania, Luxembourg (astreinte), Netherlands, Romania, Slovakia, Sweden, United Kingdom (Scotland). 
111 Available, e.g., in Austria, France, Germany, Greece, Malta, Netherlands, United Kingdom (Northern Ireland, Scotland). 
112 This is possible in Austria, Czech Republic, Finland, Germany, Luxembourg, Malta, Romania, Slovakia, and Sweden. 
113 Such as "contempt of court", "coercive enforcement measures", "fine", "astreinte" etc. 
114 2007 Comparative study on enforcement procedures of family rights, prepared by T.M.C. ASSER Instituut, available at: 
http://ec.europa.eu/justice_home/doc_centre/civil/studies/doc_civil_studies_en.htm. 

9 November 

30 October 

Abduction 

available 

Hague, 

2006), 

Child 

(The 

– 

58 

 
 
                                                            
or revision of the original judgment is possible. Consequently, courts hesitate where they are requested 
to  enforce  a  judgment  given  in  another  Member  State  and  the  circumstances  have  changed  since  the 
judgment was given.115 There is a great diversity between the Member States as to the effect of passing 
of time  on enforceability. In  some  Member States  family law decisions or  the law set a specific time 
frame for enforcement (Cyprus, Estonia, and Hungary). In other Member States enforcement of family 
law decisions should take place as soon as possible, while the lapse of time may hinder the enforcement 
(Finland,  France,  and  Germany).  Sometimes  practical  obstacles  lead  to  a  temporary  stay  of 
enforcement, e.g. if the child is sick at the envisaged moment of enforcement. In some States children 
of a more advanced age have the right to act as a party in court and may thus  raise objections to an 
enforcement that concerns them. 

In addition, the consequences of a child’s opposition to enforcement vary. For example, in France the 
aim to implement a judgment is pursued in all cases, even if a child opposes implementation. If a child 
opposes,  the  responsible  parent  has  to  ensure  that  the  judgment  is  respected.  If  the  parent  cannot 
convince the child, family mediators or child defenders may be asked to step in. Some Member States 
specifically allow for coercive measures against children under specific circumstances,116 as required by 
the case law of the European Court of Human Rights.117 

In  essence,  this  is  an  area  of  the  law  with  at  present  very  different  approaches  among  the  Member 
States. Often time is needed to first enquire about the specificity of the national procedure. The parents 
requesting enforcement cannot predict the outcome of such proceedings. 

As demonstrated in some cases submitted to the Commisison by the European Parliament, the concrete 
enforcement  measures  ordered  by  the  court  of  the  Member  State  of  enforcement  can  be  challenged 
under  the  national  law  of  that  State,  and  this  judicial  review  sometimes  amounts  to  a  review  on  the 
merits of the original judgment at the stage of enforcement.118 This is particularly problematic where the 
State of origin still has jurisdiction for the substance of the matter while the State of enforcement does 
not. The number of appeals against enforcement measures (which normally suspend enforcement of the 
judgment) often puts the expeditious enforcement of judgments at risk. 

In a dedicated meeting Member States representatives reported that some national systems do not have 
special rules for the enforcement of family law decisions and parties must resort to procedures available 
for enforcing judgments in civil or commercial matters, which do not take into account the fact that, in 
the area of parental responsibility, the passing of time has irreversible consequences. 

115 Also problematic, albeit in a different way, are judgments given after lengthy procedures lasting several years, where the 
child  lawfully  moved  to  another  Member  State  during  the  proceedings.  As  –  unlike  the  1996  Hague  Convention  -  the 
Regulation currently perpetuates the jurisdiction of the court of former habitual residence, the judgment and the jurisdiction 
it was based on are not in line with the proximity required by the child's best interests, thereby giving rise to problems of 
recognition and enforcement in the State of new habitual residence. 
116 For example, in Austria direct coercive measures may only be taken to enforce decisions on custody, but not on access 
rights. In Germany, direct coercive measures against the child are only permitted to enforce return, but not access, and only 
if  this  is  compatible  with  the  best  interest  of  the  child  and  there  is  no  other  possibility  to  enforce  the  obligation  of  the 
respondent  parent.  In  other  Member  States,  there  are  no  specific  rules  as  to  whether  or  not  coercive  measures  against 
children  are  allowed  (e.g.  BG,  SK,  SE)  or  coercive  measures  are  not  permitted  against  the  child  but  may  only  be  used 
against parents (e.g. GR, UK) (information from the Hague Conference study, supra note 109). 
When  it  comes  to  the  enforcement  of  access  rights,  it  is interesting  to  note  that  Member  States’  rules  on  whether  parents 
should be required to visit their children also differ. For example, in Germany, unlike Austria (see AußStrG, Section 108), 
the right of access is framed so as to entail an obligation on the parent’s part (BGB, Section 1684(1)). Thus, there may be 
different interpretations of whether or not a parent failed to comply with a decision on access rights by not visiting the child 
(see  European Parliament,  Directorate-General  for  Internal  Policies  Policy  Department  C,  2010  Study  on  the  cross-border 
exercise  of  visiting  rights,  prepared  by  Dr  Gabriela  Thoma-Twaroch,  President  of  Josefstadt  District  Court,  Vienna.  The 
entire study is available at: http://www.justicewatch.eu/IPOL-JURI_NT%282010%29432735_EN.pdf). 
117 See in particular Ignaccolo-Zenide v. Romania, ECtHR 25.01.2000, Application No 31679/96, paras 106, 108, and 112. 
118 For example, enforcement provisions in most Member States allow for appeals to be filed against enforcement orders. 

59 

 
 
                                                            
On the other hand, during the annual meetings of Central Authorities and judges in the framework of 
the  EJN  and  in  the  expert  group,  it  was  mentioned  that  the  "certificate  solution"  for  access119  can  in 
exceptional  cases  also  create  problems.  In  addition  to  the  problems  already  described  above  (the  fait 
accompli and lack of efficient legal challenges when enforcing judgments which are only provisionally 
enforceable),  problems  arise  in  particular  at  the  enforcement  stage  if  the  enforcement  officer  finds 
himself unable to enforce the judgment from another Member State just because the foreign judgment 
does not meet the requirements of the enforcement law of the State where enforcement is sought (e.g. 
because of insufficient specificity, lack of certain permissions in the judgment which the enforcement 
officer needs under his own law, such as to enter a private home, to enforce out of office hours, to draw 
upon police assistance etc.).120 

All these difficulties have a corrosive effect on mutual trust in the overall functioning of the Regulation. 

Subsidiarity 

5.2. 
Under Article 81 para. 2 TFEU, the Union has shared competence (which it has already exercised) to 
adopt  measures  aimed  at  (a)  the  mutual  recognition  and  enforcement  of  judgments  between  Member 
States  and  (c)  the  compatibility  of  the  rules  applicable  in  the  Member  States  concerning  jurisdiction. 
The abolition of exequatur is covered by the former. Experience has shown that Member States are not 
willing to go any further unilaterally in allowing judgments from other Member States to be enforced in 
their  legal  system  without  any  "entrance  control".  As  bilateral  agreements  are  no  longer  possible 
because the Union has already made use of its legislative competence in this area, only EU intervention 
can complete the system and eliminate the delays and costs that EU citizens incur to apply for exequatur 
in  the  Member  States  where  they  intend  to  rely  on  the  rights  stemming  from  a  judgment  given  in 
another Member State. 

Although  enforcement  as  such  is  a  matter  for  the  Member  States,  the  CJEU  has  stated  that  the 
application of national rules for enforcement should not prejudice the useful effect of the Regulation121. 
The legal basis of EU competence would be a combination of Article 81 para. 2 (a) (mutual recognition 
and enforcement of judgments between Member States) and (f) (elimination of obstacles to the proper 
functioning  of  civil  proceedings,  if  necessary  by  promoting  the  compatibility  of  the  rules  on  civil 
procedure  applicable  in  the  Member  States).  Where  there  are  negative  consequences  resulting  from 
inefficient enforcement procedures, these need to be addressed at EU level so that a successful outcome 
can  be  equally  guaranteed  in  all  Member  States.  Where  intervention  is  identified  as  necessary  in  this 
area, it should be limited to the minimum necessary to ensure the objective of the swift and effective 
enforcement of judgments in a cross-border setting. 
Bringing  jurisdiction  in  line  with  the  best  interests  of  the  child  by  nuancing  perpetuatio  fori122  and 
letting  jurisdiction  follow  the  child  in  case  of  a  lawful  relocation  is  based  on  Article 81  para. 2  (c). 
Finally, the rules on the hearing of the child can be based on a combination of Article 81 para. 2 (f), (a) 
(see above) and (d) (cooperation in the taking of evidence). Only EU intervention in these cross-border 
proceedings can reinforce the mutual trust needed to ensure recognition and enforcement of judgments 
in  line  with  the  Charter  of  Fundamental  Rights  and  the  UN  Convention  on  the  Rights  of  the  Child. 
Whilst  this  will  imply  an  intervention  in  the  Member  States'  procedural  law,  this  is  limited  to  the 
minimum necessary so as to respect the national procedural traditions, in particular, how the hearing is 
organised in each jurisdiction. 

119 And for some return cases following child abduction; see chapter 3. 
120 Enforcement as such is governed by the law of the State where enforcement is sought, see Article 47. 
121 Case C-195/08 PPU Rinau, (supra note 75), para. 82. 
122 A principle of procedural law that a court may continue to exercise jurisdiction until it has rendered a judgment that is 
final and no longer open to appeal, even if in the meantime there has been a change in the circumstance on which jurisdiction 
was originally based. 

60 

 
 
                                                            
5.3.  Objectives 
General objectives: 

(a)  to protect the best interests of the child and the relationship between children and their parents 

Specific objectives: 

(a)  to  simplify  the  procedure  by  reducing  delays  and  costs  in  relation  to  the  recognition  and 

enforceability of judgments as well as their enforcement 

(b) to consolidate mutual trust between the Member States overall and in particular relating to the 

hearing of the child and the child's best interests. 

5.4.  Description of Policy Options 
Option 1: Baseline scenario 

This  option  does  not  involve  any  legislative  intervention.  It  would  mean  that  the  current  system  of 
recognition and enforcement, with its deficiencies, would continue to exist. 

Option 2: Extension of the current system for access judgments (abolition of exequatur plus certificate 
on  enforceability  and  respect  of  procedural  standards)  to  all  types  of  judgments  on  parental 
responsibility matters 

This  option  implies  exempting  all  judgments  on  parental  responsibility  which  still  require  exequatur 
from the requirement of exequatur while maintaining the current system of the Regulation; which is to 
have  two  distinct  steps:  enforceability  (declaring  the  judgment  enforceable)  and  enforcement  proper. 
Unlike  under  the  system  requiring  exequatur,  under  this  option  judgments  on  parental  responsibility 
would  be  made  directly  enforceable  in  any  other  Member  State  on  the condition  that  the  judgment  is 
certified by the issuing court in the State of origin. Exequatur by the State where enforcement is sought 
would not be required any more, and recognition could no longer be challenged. A judgment could only 
be certified by the court of origin if certain procedural standards were met. 

The enforcement  measures (fine,  arrest, physical  force), though, would  still need  to be  defined  in  the 
State where enforcement is sought. 

Enforcement could only be stopped in a limited number of defined situations: the control would exist at 
the stage of delivering the certificate and then once delivered, there would be the possibility for control 
at the stage of enforcement either by a challenge of the original judgment on the merits123 or the request 
for a stay of enforcement in the State of origin, or by a challenge of certain enforcement measures in the 
Member  State  of  enforcement  under  the  national  law  of  that  State,  as  the  Regulation  provides  that 
enforcement  shall  take  place  under the  same  conditions  as  if  the  judgment  had  been  delivered in  that 
Member State. 

Option 3: Abolition of exequatur with appropriate safeguards to be invoked at the stage of enforcement, 
i.e. to challenge the recognition of the judgment issued by the State of origin or to challenge concrete 
enforcement  measures  ordered  by  the  State  where  enforcement  is  sought,  in  one  and  the  same 
procedure in the State where enforcement is sought 

This  option  would  imply  that  all  categories  of  parental  responsibility  judgments  would  be  directly 
enforceable in any other Member State. However, where there is a concern that any of the grounds of 
non-recognition  or  grounds  to  challenge  concrete  enforcement  measures  might  apply,  the  defendant 
could  make  an  application  to  challenge  recognition  as  well  concrete  enforcement  measures  in  the 
Member  State  of  enforcement  in  one  and  the  same  procedure  or  apply  for  a  temporary  stay  of 
enforcement there. 

This option would include uniform rules to define in which situations enforcement could be opposed. 
Such  rules  would  govern  for  example  the  situations  where  a  change  of  circumstances  occurred.  In 

123 Provided that the State of origin still has jurisdiction on the substance of the matter. 

61 

 
 
                                                            
addition, the rules would settle in a unified manner situations where the child opposes enforcement or 
enforcement cannot be carried out due to factual obstacles such as sickness of the child. 

This option would direct the parent seeking an adaptation of the judgment on the merits to the Member 
State having jurisdiction on the merits at that moment (see notes 123 and 115 above).124 

Sub-Options on the hearing of the child 

To  avoid  problems  with  the  application  of  the  non-recognition  ground  relating  to  the  hearing  of  the 
child, the option would also include one of the following sub-options: 

Sub-Option A - Inclusion in the Regulation of a reference to Article 12 UN Convention on the Rights of 
the Child 

Article  12  of  the  UN  Convention  on  the  Rights  of  the  Child,  which  all  Member  States  have  ratified, 
requires  that  children  capable  of  forming  views  have  the  right  to  express  those  views  freely  in  all 
matters affecting them and for this purpose requires them to be provided the opportunity to be heard in 
any  relevant  judicial  and  administrative  proceedings.  The  principle  that  children  should  be  able  to 
express their views is reinforced by Article 24 para. 1 of the EU Charter of Fundamental Rights. This 
option should act as a reminder to the authorities applying the Regulation. 

Sub-Option  B  -  Introduction  of  common  minimum  standards  regarding  the  question  from  what  age  a 
child must be given the opportunity to be heard 

Common  minimum  standards  regarding  the  hearing  of  the  child  would  ensure  that  there  is  a  core 
minimum which all Member States would have to respect when it comes to determining whether it is 
appropriate to hear a child in a specific case. 

This  option  would  introduce  clear  standards  regarding  from  what  age  a  child  should  be  given  the 
opportunity  to  be  heard.  In  the  case  of  a  14-year-old  child  involved  in  parental  responsibility 
proceedings, the sub-option provides that the child must always be given the opportunity to be heard, 
unless it is established that the child is not capable of forming his/her own views or it is considered that 
the hearing would be harmful for the child. In the case of a younger child, the sub-option provides that 
the  child  must  be  given  an  opportunity  to  be  heard  if  he  or  she  is  capable  of  forming  his  or  her  own 
views, unless it is considered that the hearing would be harmful for the child. 

Sub-Option  C  –  Introduction  of  an  obligation  to  give  the  child  an  opportunity  to  express  his  or  her 
views 

This  option  would  leave  Member  States'  rules  and  practices  on  how  to  hear  a  child  untouched,  but 
would require mutual recognition between the legal systems. This would mean that an obligation to give 
the child who is capable of forming his or her own views an opportunity to express these views would 
be  made  explicit  in  the  Regulation,  bearing  in  mind  that  all  Member  States  have  ratified  the  UN 
Convention  on  the  Rights  of  the  Child  which  already  obliges  them  to  hear  the  children  meeting  the 
condition mentioned above in any domestic and cross-border proceedings concerning them. Notably a 
distinction  would  be  made,  as  it  is  the  case  in  the  respective  Article  of  the  Charter  of  Fundamental 
Rights,  between  when  the  child  needs  to  be  given  the  opportunity  to  be  heard  on  the  one  hand  (i.e. 
when it is capable of forming/expressing his or her own views) and what weight the judge shall give to 
the  child's  views  on  the  other  hand  (which  depends  on  the  age  and  maturity  of  the  child).  This 
distinction would have to be recorded in the judgment and in a certificate annexed to it. Courts would 
thereby  be  obliged  to  motivate  in  the  judgment  itself  as  well  as  in  the  accompanying  certificate  why 
they have  either  not  heard  the child or,  if the child was heard, whether or  not  his  or  her wishes were 
taken into account when making the decision. 

124 Depending on the circumstances, this might still be the court of origin of the judgment, but if the child has relocated to the 
Member State where enforcement is now sought, it might also be that Member State which has jurisdiction from now on to 
rule on the merits of parental responsibility (and consequently also to amend orders made by courts which had jurisdiction 
prior to the relocation) and may be outdated by the circumstances. 

62 

 
 
                                                            
Option  4:  Option  3  plus  introduction  of  targeted  measures  to  improve  the  efficiency  of  actual 
enforcement 

To  tackle  the  problem  of  inefficient  enforcement,  in  addition  to  Option  3,  a  time  limit  would  be 
indicated for the actual enforcement of a judgment. This option would leave the means of enforcement 
and  their  requirements  up  to  the  Member  State  procedure,  e.g.  which  specific  enforcement  measure 
should be ordered under which circumstances. In case the enforcement has not occurred after the lapse 
of  six  weeks  from  the  moment  the  enforcement  proceedings  were  initiated,  the  court  of  the  Member 
State  of  enforcement  would  have  to  inform  the  requesting  Central  Authority  in  the  Member  State  of 
origin (or the applicant, if the proceedings were conducted without Central Authority assistance), about 
this  fact  and  the  reasons  for  the  lack  of  timely  enforcement.  This  information  would  also  be  collated 
annually and given to the Commission. 

This  option  would  also  provide  that  the  court  of  origin  could  declare  a  decision  provisionally 
enforceable even if this possibility does not exist in its national law. This is useful in systems where the 
judgment is not yet enforceable while it is still subject to appeal. 

Option 5: Option 3 plus introduction of a uniform enforcement procedure 

This option would create a set of common rules for the enforcement of parental responsibility decisions. 
This uniform enforcement procedure would fully replace the enforcement provisions under national law 
for the cases falling within their scope. 

5.5.  Analysis of impact of Policy Options 

5.5.1.  Option 1: Baseline scenario 

For the assessment of this option please see the problem definition. There are no forthcoming legislative 
initiatives  at  global  or  EU  levels  to  deal  with  these  cross-border  issues  –  which  individual  Member 
States’  initiatives  alone  cannot  tackle.  Infringement  proceedings  would  be  unlikely  to  bring  about 
significant  improvement  in  obtaining  cross-border  enforcement  of  parental  responsibility  matters 
because the various different steps required – some to be taken directly under the Regulation like the 
granting of exequatur, others under national law like ordering actual enforcement measures and possible 
challenges  against  them  –  are  currently  enshrined  in  the  Regulation  itself.  Moreover,  proceedings 
against  single  States  would  not  lead  to  a  uniform  and  coherent  treatment  of  all  applications  for 
exequatur and enforcement in the EU. 

5.5.2.  Option  2:  Extension  of  the  current  system  for  access  judgments  (abolition  of  exequatur  plus 
certificate on enforceability and respect of procedural standards) to all types of judgments on 
parental responsibility matters 

Effectiveness  to  meet  objectives:  There  would  be  some  positive  impacts  on  simplification  as  any 
judgment  on  parental  responsibility  would  be  directly  enforceable  in  any  other  Member  State  on  the 
condition  that  the  judgment  is  certified.  In  addition,  situations  in  which  a  judgment  contains  some 
elements that are directly enforceable and some element that require a declaration of enforceability (e.g. 
custody  and  access  rights),  which  can  cause  confusion,  would  be  avoided  because  all  (certified) 
judgments would be covered by the same rules. As any judgment on parental responsibility would be 
directly  enforceable  in  any  other  Member  State,  citizens  would  not  need  to  provide  additional 
administrative  documents  and/or  pursue  exequatur  proceedings.  When  seeking  enforcement,  citizens 
would  only  need  to  provide  a  copy  of  the  judgment  and  the  certificate  issued  by  the  court  of  origin 
together with the required translations. 

Enforcement as such, and the ordering of, and possible challenges to, individual enforcement measures, 
would still be governed by the law of the State where enforcement is sought, and the challenges would 
have  to  be  brought  there.  A  stay  of  enforcement,  however,  needs  to  be  applied  for  exclusively  in  the 
State of origin of the judgment according to the case law of the Court of Justice. This gives rise to very 
complex legal situations and blockages which can also put the best interests of the child at risk because 

63 

 
 
the  legal  "jungle"  prevents  a  quick  reaction  to  problems  arising  in  the  actual  enforcement  against  a 
child. 

Likewise,  if  a  judgment  is  only  provisionally  enforceable  and  still  subject  to  appeal  in  the  State  of 
origin,  experience  with  the  current  abolition  of  exequatur  for  certain  judgments  has  shown  that  the 
twofold  procedure  in  two  different  Member  States  gives  rise  to  very  complex  legal  situations  and 
blockages. 

An enforceable judgment which is still subject to appeal needs to be challenged in the State of origin. 
Enforcement  measures,  however,  would  still  need  to  be  ordered  by  the  court  in  the  State  where 
enforcement  is  sought,  and  would  be  determined  by  the  national  law  of  that  State.  The  lack  of 
harmonised  grounds  for  challenging  concrete  enforcement  measures  undermines  the  efficiency  of  the 
Regulation and will not protect the best interest of the child as the enforcement as such could be still 
refused of various grounds. 

Cost savings: Costs related to exequatur proceedings could be fully eliminated; there would be no need 
to  go  through  additional  procedures  to  apply  for  enforceability.  For  exequatur  proceedings,  costs  of 
around  € 1,100  to  4,000  have  been  reported to  be  incurred  per  case.  In  cases  of  appeal,  however,  the 
associated costs are higher. 

Stakeholders'  views:  The  opinions  concerning  a  potential  abolition  of  exequatur  proceedings  are 
generally positive but cautious. Private individuals are the most prominent group seeking to expand the 
abolition of exequatur (82%), followed by judges and lawyers (71% collectively). Those with practical 
experience of the Regulation are mostly in favour of full abolition of exequatur, with 66% of positive 
votes. 
However,  in  light  of  the  problems  described  above,125  only  a  smaller  group  of  stakeholders  favoured 
abolishing  exequatur  proceedings  using  the  current  system.126  Instead,  many  stakeholders  demanded 
additional  measures.  Some  interviewees  underlined  that  parental  responsibility  cases  may  be  very 
sensitive  and  that  there  are  cases  in  which  the  enforcement  can  entail  severe  effects  for  the  parties 
involved and in particular for the best interests of the child. 

Finally,  five  of  the  eight  responding  Member  States  (BE,  DE,  FR,  PL,  UK)  indicate  that  exequatur 
should not be fully abolished. The UK and Germany, in particular, stated that it would be inappropriate 
to completely abolish exequatur and that safeguards should be maintained. 

5.5.3.  Option  3:  Abolition  of  exequatur  with  appropriate  safeguards  to  be  invoked  at  the  stage  of 

enforcement 

Effectiveness  to  meet  objectives:  This  option  would  simplify  the  procedure.  Thanks  to  it,  citizens 
would  not  need  to  provide  additional  administrative  documents  and/or  follow  additional  proceedings 
and thereby delays would be eliminated. Enforcement measures would still need to be ordered by the 
court  in  the  State  where  enforcement  is  sought,  and  would  be  determined  by  the  national  law  of  that 
State. Nonetheless, this option is likely to generate strong positive impacts on the best interests of the 
child.  In  addition  to  the  reduction  of  delays  connected  with  the  exequatur  proceedings,  this  option 
would ensure a possibility for the defendant to apply for a stay or refusal of enforcement in the Member 
State of enforcement where any of the grounds for non-recognition can be raised in the same procedure. 
Moreover,  this  option  would  ensure  predictability  of  the  enforcement  proceedings  as  a  specific 
enforcement measure could only be opposed on the grounds stipulated in the Regulation. It would also 
enhance  transparency  and  predictability  of  the  enforcement  proceedings  as  opposed  to  the  current 

125  The  fait  accompli-problem  and  lack  of  effective  legal  remedies  to  stay  enforcement  in  exceptional  situations,  and  the 
complications and delays caused if the clarifications needed by the enforcement officer depend solely on the court of origin 
rather than on an enforcement court in the State where enforcement is sought. 
126 I.e. the issuance of a certificate by the State of origin where any legal challenges against the judgment, and requests for a 
stay of  enforcement  have  to  be  brought while legal  challenges  against modalities  of  enforcement  are  to  be  brought  in  the 
State of enforcement. 

64 

 
 
                                                            
situation where parents requesting enforcement are facing a variety of obstacles vested in national laws. 
A change of circumstances could be taken into account through the nuancing of  perpetuatio fori; this 
would ensure that judgments giving rise to recognition and enforcement problems caused by a change 
of circumstances would significantly be reduced in numbers and thus greatly enhance mutual trust. 

Cost  savings:  This  option  would  significantly  reduce  costs,  because  there  would  be  no  need  to  go 
through  additional  procedures  to  apply  for  enforceability,  and  challenges  against  the  judgment  and 
against enforcement or enforcement measures could be brought in the same proceedings. For exequatur 
proceedings, costs of around € 1,100 to  4,000 have  been reported to  be incurred per  case. In cases of 
appeal, however, the associated costs are higher. 

Stakeholder's views: Member States indicated that the system of merged recognition and enforcement 
could be accepted under the condition that safeguards be put in place for the requested State and/or the 
defendant  to  challenge  recognition  and/or  concrete  enforcement  measures.  Such  a  system  would  be 
similar in some respects to the approach agreed in the case of the Brussels I recast and therefore more 
likely to be acceptable to Member States than Option 2. 

The impact of the sub-options for the hearing of the child: 

Sub-Option A - Include in the Regulation a reference to Article 12 UN Convention on the Rights of the 
Child (UNCRC) 

Effectiveness to meet objectives: This option would not create a new obligation. A disadvantage of it 
is,  however,  that  in  case  of  doubt,  national  courts  would  not  be  able  to  refer  questions  on  Article  12 
UNCRC  to  the  Court  of  Justice.  Moreover,  this option  would  not  fully ensure that  judgments  are  not 
refused on the basis of mere differences of Member States' standards concerning the hearing of the child 
as the UNCRC, which is in force for all Member States, leaves the modalites of the hearing up to the 
national  law  and  a  Member  States  can  still  refuse  the  recognition  of  a  judgment  which  violates 
fundamental  principles  of  procedure  in  that  Member  State.  However,  it  might  be  considered  to  have 
only marginal real impact in practice. 

Transposition and compliance: This option would not necessarily cause a need for additional training 
for  judges  because  it  will  continue  to  be  a  matter  for  national  procedure  who  hears  the  child  and  in 
what  setting  (judge  or  social  worker,  in-  or  outside  of  the  courtroom).  Moreover,  already  now  the 
hearing of children in court proceedings, which is given more and more attention, is a recurring topic on 
the agenda of national and international  judges' conferences and training events,  and the Commission 
will continue to give its support to such events. 

Sub-Option  B -  Introduction  of  common  minimum standards  regarding the question from what  age a 
child must be given the opportunity to be heard 

Effectiveness  to  meet  objectives:  This  option  would  have  a  positive  effect  as  it  would  oblige  the 
authorities in each Member State to give children above a certain age the opportunity to express their 
views  freely.  In  addition,  the  authorities  would  need  to  consider  the  child's  views  in  accordance  with 
their  age  and  maturity.  Both  aspects  would  be  confirmed  in  the  judgment  as  well  as  in  a  certificate 
accompanying it so that the authorities of the Member State in which the enforcement is sought could 
not  refuse  its  recognition.  If  the  court  states  that  it  did  not  hear  the  child,  or  that  it  did  not  give  due 
weight to his or her views, reasons must be given. 

An age limit, however, (be it 14 years or lower) for the right to be heard would run contrary to UNCRC 
principles because under Article 12 UNCRC, any child capable of forming his or her own views shall 
enjoy the right to express those views freely in all matters affecting the child, regardless of his or her 
age. Children below the defined age limit would therefore not be sufficiently protected by this option. 

Transposition and compliance: See Option 1. 

65 

 
 
Sub-Option C - Introduction of an obligation to give the child an opportunity to express his or her views 
and obligation of mutual recognition 

Effectiveness to meet objectives: As the obligation to hear children who are capable of forming their 
views is already established by the UN Convention on the Rights of the Child, its addition to the text of 
the  Regulation  would  not  create  a  new  obligation.  It  would  therefore  have  a  positive  impact  on  the 
national  legal  system  in  the  Member  States  where  the  common  practice  of  hearing  children  in  all 
proceedings concerning them is not yet sufficiently practiced despite the legal obligation embadded in 
the  UN  Convention  on  the  Rights  of  the  Child.  The  general  obligation  to  give  the  children  the 
possibility  to  express  their  views,  as  proposed  in  this  option,  would  also  avoid  creation  of  possibly 
different regimes for domestic and cross-border cases. This option would ensure that a judgment could 
circulate without being hindered by divergent rules in the Member State of origin and the Member State 
of  enforcement.  Problems  would  be  avoided  for  example  in  Member  States  with  stricter  standards 
regarding  the  hearing  of  the  child  (such  as  Germany  were  very  young  children  are  heard)  as  these 
Member States would not be encouraged to refuse recognition and exequatur if the hearing of the child 
which  does  not  meet  their  own  standards.  In  addition,  enhanced  protection  could  be  ensured  for  the 
child, permitting the court to decide, in a specific case, not to hear the child if there is a risk of harm to 
the  child.  The  key  new  element  is  that  the  obligation  for  courts  to  give  active  consideration  to  this 
matter and motivate this accordingly. Member States would be obliged to recognise the decisions from 
other Member States on this point. Overall, this would strengthen the best interests of the child which is 
the overriding principle of the Regulation. 

Transposition  and  compliance:  Making  the  obligation  to  hear  the  child  explicit  in  the  Regulation 
would enable courts in case of doubt to refer questions on this provision to the Court of Justice, and if 
complaints are brought before the Commission, the Commission could examine whether Member States 
complied  with  this  obligation  in  the  particular  case.  Like  Options  1  and  2,  the  obligation  would  not 
necessarily  cause  a  need  for  additional training  for  judges  because it  will  continue  to  be  a matter  for 
national procedure who hears the child and in what setting (judge or social worker, in- or outside of the 
courtroom). Moreover, already now the hearing of children in court proceedings, which is given more 
and more attention, is a recurring topic on the agenda of national and international judges' conferences 
and training events, and the Commission will continue to give its support to such events. 

66 

 
 
Comparison of sub-options: 

Sub-Option A: 

Sub-Option B: 

Sub-Option C: 

Reference to the UN 
Convention on the 
Rights of the Child 

Standards on from 
what age the child 
needs to be heard 

To consolidate 
mutual trust between 
MS in relation to the 
hearing of the child 

This option would only 
marginally improve 
mutual trust as it would 
only remind of the 
existing obligation. 

To protect the best 
interests of the child 

It only marginally 
improves the best 
interests of the child. 

This option would 
improve significantly 
mutual trust and 
eliminate non-
recognition of 
judgments. 

It would improve the 
best interests of children 
above a certain age but 
not of the children 
below the age limit.  

Introduction of an 
obligation to give the 
child an opportunity to 
express his or her views 

This option would 
improve mutual trust to a 
reasonable extent and 
significantly reduce the 
non-recognition of 
judgments. 

It would improve the best 
interests of the child 
irrespective of age. 

Impact on legal 
systems 

0 

This option would avoid 
creating different 
standards for domestic 
and cross-border cases. 

This option would avoid 
creating different 
standards for domestic and 
cross-border cases. 

Coherence with 
international 
instruments 

Transposition and 
compliance 

Yes 

Not in line with 
UNCRC and the 
Charter 

Yes 

No new obligation 

No new obligation 

No new obligation 

No  need  for  Member 
States to oblige judges in 
person  to  hear  the  child 
(thus  existing procedures 
can be kept) 

No need for Member 
States to oblige judges in 
person to hear the child 
(thus existing procedures 
can be kept) 

No need for Member 
States to oblige judges in 
person to hear the child 
(thus existing procedures 
can be kept) 

Training  at  national  and 
international 
is 
already available 

levels 

Training  at  national  and 
international 
is 
already available 

levels 

Training  at  national  and 
international 
is 
already available 

levels 

would 
Commission 
continue  to  support  such 
training. 

would 
Commission 
continue  to  support  such 
training. 

would 
Commission 
continue  to  support  such 
training. 

References  to  the  CJEU 
for  preliminary  rulings 
and 
implementation 
action  on  the  side  of  the 
Commission not possible 
based on UNCRC 

Transposition 
and 
compliance  would  be 
ensured  by  guidelines 
the  CJEU 
issued  by 
preliminary 
through 
and 
rulings 
action 
implementation 
on 
the 
the 
European Commission. 

side  of 

by 

and 
Transposition 
be 
compliance  would 
guidelines 
ensured 
the  CJEU 
issued  by 
preliminary 
through 
and 
rulings 
implementation  action  on 
the  side  of  the  European 
Commission. 

Sub-Option  C  is  preferred  as  it  would  require  Member  States  to  mutually  respect  their  national  rules 
while obliging them to give the child the opportunity to express his or her views and take due account of 
them.  The  choice  of  this  sub-option  is  guided  by  the  principle  of  proportionality.  It  respects  national 
laws but avoids at the same time that mere differences between the Member States serve as a ground for 
non-recognition.  Introduction  of  common  European  standards,  Option  B,  for  the  hearing  of  the  child 
would have an even stronger impact but this option would not be in line with the UNCRC. 

67 

 
 
 
5.5.4.  Option 4: Option 3 plus introduction of targeted measures to improve the efficiency of actual 

enforcement 

Effectiveness to meet objectives: This option would strongly simplify the procedure for recognition 
and enforcement of judgments. In addition to what was said on Option 3, this addition would  reduce 
delays  through  the  indication  of  a  time  limit  (e.g.  six  weeks  from  the  moment  the  enforcement 
proceedings are initiated) when the actual enforcement of a judgment has to be completed at the latest. 
In  cases  where  enforcement  was  not  achieved  within  the  time  limit,  the  reporting  obligation  to  the 
requesting Central Authority (or applicant) would allow the parent to be informed about this fact. This 
extra  transparency  would  over time  have  an  overall  beneficial  impact  on  mutual  trust.  Moreover,  this 
addition would reduce delays by ensuring that the court of origin could declare a decision provisionally 
enforceable  notwithstanding  contrary  national  law  on  the  matter  and  therefore  the  cross-border 
enforcement could be carried out without delays if this is appropriate under the circumstances. 

Cost  savings:  Parents  seeking  enforcement  would  save  money  as  the  work  of  a  highly  specialised 
lawyer would be needed for a shorter period of time. Even though it is not possible to estimate in how 
many  cases  such  savings  could  be  achieved,  it  should  be  noted  that  every  10  hours  of  work  of  a 
specialised lawyer generate costs between € 1,000 and 4,000. Similarly, there could be a small reduction 
of costs for Central Authorities if procedures are shorter at the enforcement stage; their assistance would 
be required for a shorter period. However, given the different organisation of work and remuneration of 
the Central Authorities' staff it is not possible to quantify such savings.127 

Stakeholders'  views:  The  differences  between  national  systems  were  generally  seen  as  the  most 
significant area for improvement by public consultation respondents. In particular, 92% of the lawyers 
who  responded  were  of  the  view  that  the  enforcement  of  decisions  concerning  parental  responsibility 
could  be  improved.  The  most  significant  problem  identified  was  the  variance  between  the  national 
systems,  and  many  respondents  were  of  the  opinion  that  the  lack  of  uniform  enforcement  procedures 
across the Member States poses challenges. In addition, several respondents indicated that enforcement 
is  not  sufficiently  speedy.  Parents  and  practitioners  clearly  advocated  for  the  adoption  of  common 
minimum standards or even suggested a uniform enforcement procedure. 

5.5.5.  Option 5: Option 3 plus introduction of a uniform enforcement procedure 

Effectiveness to meet objectives: In addition to what was said on Option 3, this option would have a 
strong  positive  impact  on  the  effectiveness  and  predictability  of  the  enforcement  proceedings  in  all 
Member  States.  It  would  provide  for  a  uniform  procedure  for  the  enforcement  of  family  decisions, 
containing  rules  concerning  the  refusal  of  enforcement  as  such  and  the  challenge  of  specific 
enforcement measures. Parents seeking enforcement would know in advance the procedure to follow in 
all Member States. 

Cost  savings:  Parents  seeking  enforcement  would  save  money  as  they  would  not  necessarily  need  to 
look for a highly specialised lawyer with knowledge of the foreign enforcement system. Even though it 
is not possible to estimate in how many cases such savings could be achieved, it should be noted that 
every 10 hours of work of a specialised lawyer generate costs between € 1,000 and 4,000. In addition, 
there could be a small reduction of costs for Central Authorities; if procedures are more harmonised and 
shorter  at  the  enforcement  stage,  there  should  be  fewer  requests  for  assistance  and/or  their  assistance 
would  be  required  for  a  shorter  period.  However,  given  the  different  organisation  of  work  and 
remuneration of the Central Authorities' staff it is not possible to quantify such savings.128 

Stakeholders'  views:  In  the  public  consultation,  Member  States  signalled  enforcement  as  being  a 
highly sensitive matter. Some (BE, NL, PL) agreed that there is an issue with enforcement and that the 
national  law  does  not  always  guarantee  efficient  procedures  for  implementing  decisions  on  parental 
responsibility. However, the views on the ways for improvement varied. While France and the UK were 

127 See supra at 3.1., last paragraph. 
128 See supra at 3.1., last paragraph. 

68 

 
 
                                                            
not supportive of common minimum standards at the European level they noted that an appropriate way 
to address enforcement issues is to improve the operation of existing provisions of the Regulation. The 
Czech Republic and Germany answered negatively to this question. 

In the meeting organised with Member States, most representatives (SK, UK, SE, LV, LT, ES and FI) 
recognised  the  complexity  of  national  procedures  but  spoke  against  any  intrusive  EU  action  in  this 
regard. 

5.6.  Comparing the Options and preferred Policy Option 

Objectives/Impacts 

Simplify/Reduce delays 
and costs for recognition 
and enforceability as 
well as for enforcement 

Ensure  best  interests 
of the child 

Consolidate 
mutual trust 

Impact  on  legal 
systems 

0 

0 

Option  1:  Baseline 
scenario 

0 

0 

0 

Option  2:  Abolition 
exequatur  plus 
of 
on 
certificate 
enforceability 
and 
respect  of  procedural 
standards 

This  option  would  have 
some positive impact on 
reducing delays and costs 
as  the  judgments  would 
not 
require  exequatur 
and  there  would  be  no 
need 
for 
exequatur.  Enforcement 
delays  would  however 
remain as they are. 

pay 

to 

Non-recognition 
be 
could 
reduced to some 
extent. 
The 
existing 
difficulties 
the 
stage 
enforcement 
would remain. 

at 
of 

be 

It would have limited 
impact  on 
positive 
best  interests  of  the 
child as delays would 
remain  including  at 
of 
stage 
the 
enforcement. 
Moreover, 
there 
would 
no 
consistent 
refusal 
for 
grounds 
enforcement  proper. 
The  system  provides 
no  flexibility  to  deal 
a 
quickly 
request  for  a  stay  of 
enforcement 
in 
exceptional  cases  if 
seems 
enforcement 
harmful  to  the  child's 
best interests.  

with 

Option  3:  Abolition 
exequatur  with 
of 
appropriate 
safeguards 
be 
invoked  at  the  stage 
of enforcement 

to 

This option would have a 
very  positive  impact  as 
for 
the 
procedure 
challenging 
recognition 
and  enforceability  would 
into  one  with 
merge 
challenging 
specific 
enforcement  measures 
and  thereby  significantly 
reducing delays. 

Non-recognition 
be 
could 
to 
reduced 
a 
extent. 
greater 
Refusal 
of 
enforcement 
could equally be 
avoided 
a 
greater extent. 

to 

This 
option 
would  have  to 
some  extent  an 
impact 
on 
Member  States' 
national 
procedures  as  it 
would 
harmonise  some 
of 
aspects 
enforcement 
law. 

a 

The  option  would 
positive 
have 
impact  on  the  best 
interests  of  the  child 
as  there  would  be  an 
list  of 
exhaustive 
refusal  grounds.  The 
system would provide 
flexibility 
to  deal 
quickly  and  under 
conditions 
uniform 
exceptional 
with 
where 
situations 
enforcement 
seems 
harmful  to  the  child's 
best interests. 

69 

 
 
Option  4:  Option  3 
plus  introduction  of 
targeted  measures  to 
improve 
the 
efficiency  of  actual 
enforcement 

Option  5:  Option  3 
plus introduction of a 
uniform  enforcement 
procedure 

Very  positive 
impact 
like  Option  3.  The 
additional indicative time 
for  enforcement 
limit 
weeks) 
(e.g. 
triggering 
reporting 
obligations  will  enhance 
the  timely  enforcement 
of judgments. 

six 

The  possibility  for  the 
court of origin to declare 
a  decision  provisionally 
enforceable  will  reduce 
delays even further. 

This 
would 
option 
provide  for  a  uniform 
and 
transparent 
enforcement  procedure; 
therefore  most  delays 
would be eliminated. 

Same  as  Option  3. 
Moreover,  it  would 
child 
the 
protect 
even  more 
than 
Option  3  due  to  the 
introduction  of  time 
limits. 

Same  impact  as 
Option  3  on 
non-recognition 
but  in  addition, 
actual 
enforcement 
would 
improved.  

be 

It  would  offer 
the 
strongest  protection 
of  the  child  as  most 
be 
delays  would 
eliminated. 

Same  impact  as 
Option  3  on 
non-recognition 
but  in  addition, 
actual 
enforcement 
would 
improved 
further 
compared 
Option 4. 

as 
to 

be 

This 
option 
would  have  to 
some  extent  an 
impact 
on 
Member  States' 
national 
procedures  as  it 
would 
harmonise  some 
aspects 
of 
enforcement 
law. 

This 
option 
would  have  an 
increased 
the 
impact  on 
Member  States' 
national 
procedures 
compared 
to 
Options  3  and  4 
above. 

The  preferred  policy  option  for  recognition  and enforcement  is  Option  4.  In  line  with  the  operational 
objectives,  it  would  abolish  the  exequatur  requirement  while  maintaining  appropriate  safeguards 
(grounds for non-recognition and for refusal of enforcement) to be invoked by the defendant at the stage 
of  enforcement  in  one  and  the  same  procedure  before  the  courts  of  the  State  where  enforcement  is 
sought. This will shorten the overall duration of the proceedings. To diminish problems relating to the 
differences  in  the  national  practices  for  the  hearing  of  the  child  and  the  resulting  refusals  of  the 
recognition of the judgment, the combination with the Sub-Option C on hearing the child would require 
Member  States  to  mutually  respect  their  national  rules  while  obliging  them  to  give  the  child  the 
opportunity to express his or her views and take due account of them. The choice of this sub-option is 
guided  by  the  principle  of  proportionality.  It  respects  national  laws  but  avoids  at  the  same  time  that 
mere differences between the Member States serve as a ground for non-recognition. The introduction of 
common European standards for the hearing of the child would have an even stronger impact but this is 
disproportionate and politically not feasible. 

Option 4 will guarantee that the enforceability or actual enforcement of judgments can only be refused 
on the basis of a limited list of fully uniform grounds. The additional introduction of a time limit and the 
possibility to declare a judgment provisionally enforceable even if the national law of the State of origin 
does not provide for this will clearly enhance the efficiency of the proceedings. This would be balanced 
by  some  flexibility  to  deal  quickly  and  under  harmonised  conditions  with  exceptional  cases  where 
enforcement  seems  harmful  to  the  child's  best  interests.  While  an  even  more  unified  enforcement 
procedure would enhance predictability to an even greater extent and avoid undue delays (Option 5), it 
would however be seen as an intrusive intervention into the Member States' national procedures. 

70 

 
 
6. 

COOPERATION BETWEEN NATIONAL AUTHORITIES 

6.1.  Problem definition 
The cooperation between Central Authorities in specific cases on parental responsibility129 is essential 
to  support  effectively  parents  and  children  involved  in  cross-border  proceedings  relating  to  child 
matters. Central Authorities shall, for example, collect and exchange information on the situation of the 
child (for instance in connection with proceedings regarding custody, access or the return of the child), 
assist holders of parental responsibility to have their judgments recognised and enforced (in particular 
concerning access rights and the return of the child) and facilitate mediation. Their quick and efficient 
handling  of  child  cases  is  an  indispensible  prerequisite  for  mutual  trust  which  is  the  core  of  good 
cooperation between the authorities of different Member States. 

The cooperation between Central Authorities was regularly discussed at their annual meetings organised 
by the Commission since 2006. Also the national experts in the framework of the evaluation study as 
well as judges and parents assessed its functioning via public consultation. The general opinion on the 
cooperation  differs  between  the  national  experts  interviewed  for  the  evaluation  study,  who  recognise 
some  deficiencies  on  one  hand,  and  parents,  on  the  other  hand,  who  generally  perceive  the  work  of 
Central Authorities as bureaucratic and slow. 

One  source  of  the  problem,  observed  by  all  stakeholders,  including  Member  States,  is  the  unclear 
drafting of the article130 setting out the assistance to be provided by Central Authorities in specific cases 
on parental responsibility. This has led to delays which were detrimental to children's best interest. In 
some cases the result was even the non-fulfilment of requests, which then put the welfare of the child 
concerned at risk. According to the results of the consultation, the article does not constitute a sufficient 
legal  basis  for  national  authorities  in  some  Member  States  to  take  action  because  their  national  law 
would require a more explicit autonomous legal basis in the Regulation. 

First, according to its chapeau, the Central Authorities shall provide their assistance only “upon request 
from a central authority of another Member State or  from a holder of parental responsibility”. Courts 
and child welfare authorities are not mentioned although the duties listed in the article also include the 
obligation  to  provide  assistance  to  courts  in  transferring  jurisdiction  to  another  Member  State  if  they 
think  that  the  courts  there  are  better  placed  to  hear  the  case,  and  to  provide  assistance  to  courts 
envisaging to place a child in a family or institution another Member State (on this aspect, see chapter 
2.4.). This has given rise to doubts, in particular by UK judges,whether courts may avail themselves of 
the assistance of the Central Authorities under this provision or not, and to ensuing delays in handling 
requests for assistance. 

A second area signalled by the Central Authorities and judges where problems arose is the collection of 
child-related information. Pursuant to Article 55 (a) Central Authorities shall – again upon request from 
a Central Authority of another Member State or from a holder of parental responsibility  – collect and 
exchange  information  on  the  situation  of  the  child,  any  procedures  under  way  and  decisions  taken 
concerning the child. To this end, the Regulation provides that they shall act directly or through public 
authorities or other bodies in accordance with the law of their Member State in matters of personal data 
protection. Requests for information under this article which are transmitted by the Central Authority of 
another Member State can inter alia originate from courts in that State or from public authorities, e.g. 
child welfare authorities. If they originate from a court, Member States sometimes refuse to apply this 
article and refer to the Regulation on the Taking of Evidence131 which provides for a more formal (and 
therefore  lengthier)  procedure.  Courts,  however,  often  prefer  to  use  the  more  recent  and  more 
specialised Brussels IIa Regulation for the following reasons: 

129 Article 55 of the Regulation. 
130 Article 55. 
131 Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the 
taking of evidence in civil or commercial matters, OJ L 174, 27.6.2001, p. 1. 

71 

 
 
                                                            
The  Evidence  Regulation  is  a  horizontal  instrument  from  2001  which  applies  to  all  civil  law 
proceedings – adversarial proceedings in civil and commercial matters (covering in particular financial 
matters) as well as proceedings (e.g. relating to parental responsibility ) which fall under the regime of 
so-called  voluntary  or  non-contentious  jurisdiction.  For  the  first  group  of  cases,  there  are  very  strict 
formal standards on what kind of evidence may be used and how it may be obtained by a court because 
the Regulation struck a general balance between the need for speed and the protection of the parties. In 
parental responsibility and child protection matters, however, there are not always two parties litigating 
between themselves, but there is always some public interest at stake (namely, the best interests of the 
child) which gives the court a stronger role (often with ex-officio-duties) and a greater discretion as to 
the evidence and the procedure for obtaining it. If a court in a child protection case is of the view, for 
example,  that  it  prefers  for  reasons  of  urgency  to  rely  on  information  obtained  through  a  less  formal 
procedure  than  under  the  Evidence  Regulation  because  this  can  be  obtained  more  quickly,  this  is 
normally  possible  under  the  national  procedural  law.  Therefore,  for  obtaining  social  reports  from 
abroad, courts often use even out-of-court channels like the International Social Service (ISS), a non-
governmental organisation which has correspondents in more than 120 countries because they consider 
this to be quicker than to proceed under the Evidence Regulation (the time limit under that Regulation is 
90  days  following  receipt,  and  transmission  is  normally  on  paper  by  post).  Since  2005,  when  the 
Brussels IIa Regulation with its network of Central Authorities entered into force, courts have started to 
use this specialised channel more and more in child-related cases because it is as quick as the informal 
ISS  channel,  using  transmission  by  e-mail  or  fax  and  ensuring  swift  handling  of  the  request,  and 
moreover  cost-free  (unlike  ISS;  under  the  Evidence  Regulation  costs  may  be  levied  under  certain 
conditions)  and  therefore  better  for  the  parties.  In  addition,  ISS  does  not  have  correspondents  in  all 
States. Gradually, more and more judges from the Member States have been participating in the annual 
meetings of Central Authorities under the Brussels IIa Regulation, and judges and Central Authorities 
repeatedly stated that it is unsatisfactory that in some cases, when the judge decides to proceed under 
Brussels  IIa  through  the  dedicated  Central  Authority  channels  to  obtain  a  social  report  quickly,  this 
works while in other Member States the request is not carried out because of the unclear wording of the 
relevant article, thus causing delay. They perceive the Central Authorities as their natural contact point 
for  support  in  cross-border  parental  responsibility  cases,  which  is  indeed  what  they  were  meant  to  be 
under the Brussels IIa Regulation for this specialised area of law.132 

Child welfare authorities requesting information on a child, on the other hand, are not entitled to make 
use  of  the  Evidence  Regulation.  Another  problem  is  that  the  requested  child  welfare  authorities  act 
under their own national law, and it often happens that their national law contains further conditions for 
the establishment of a social report on a child – e.g. that there are indications that the child’s welfare is 
at risk. If the conditions established by the national law of the requested State are not  met, the social 
report  is  not  provided  -  which  leads  to  delays  in  the  proceedings  in  the  requesting  Member  State  or 
renders them impossible. 

Thirdly, the article contains another important gap. Under the jurisdiction rules of the Regulation, child 
matters will normally be brought before a court in the Member State of habitual residence of the child. 
Therefore the child is present within the jurisdiction of the court seised, and there is no need for a social 
report on the child from another Member State. But the Regulation, as presented in a real case example 
in  the  evaluation  study,  does  not  provide  for  cross-border  social  reports  in  cases  where  the  Member 
State  of  habitual  residence  of  the  child  needs  information  about  an  adult  or  siblings  in  child-related 
proceedings pending before it. 

132 In this context it is worth mentioning that another horizontal instrument, the Legal Aid Directive, is hardly used either in 
cases  falling  within  the  parental  responsibility  chapter  of  the  Brussels  IIa  Regulation  because  either  legal  aid  is  granted 
automatically for those cases or Central Authorities provide the relevant assistance in obtaining it. Outside this specialised 
area, citizens often need assistance in obtaining legal aid for a case to be brought in another Member State and therefore turn 
to the Legal Aid Directive but under Brussels IIa it is quicker to channel all requests and information through one and the 
same  channel,  namely  the  Central  Authorities  which  were  created  to  assist  citizens,  courts  and  authorities  in  their  child-
related proceedings. 

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Example 1: Request for a social report on a potential temporary carer 

An eight-year old girl of Czech nationality, an orphan, is living in an institution in the Czech Republic 
and is placed under guardianship. A Czech aunt of the child who is living in France offers to host the 
child  in  France  during  the  summer  school  holidays.  The  Czech  child  care  authorities  ask  the  Czech 
court for permission, and the court wants to request a social report from France about the aunt, stating 
whether the environment there is suitable for the child and whether the aunt seems fit to care for the 
girl during holidays. The answer, which comes only after several months, is that the Regulation only 
provides for the establishment of a social report on the situation of the child, not on the situation of the 
aunt. By then it is too late for the court to use the Evidence Regulation because the summer holidays 
are about to begin. As a result, the child was not allowed by the Czech court to spend the holidays with 
her aunt. A year later, the Czech court allows the child to travel to France to stay with the aunt and 
asks  the  French  authorities  for  a  social  report  on  the  situation  of  the  child  as  soon  as  the  girl  has 
arrived at her aunt’s home. In this case, the report is established, but the Czech court had taken the risk 
of sending the child abroad without being sure that the conditions there would be in accordance with 
the child’s best interests. 

Please see Annex 9 for further examples of cooperation between the national authorities. 

In an informal meeting, Member States' representatives pointed to the fact that the Regulation provides 
that  the  requested  Central  Authority  shall  comply  with  the  law  of  its  Member  State  on  personal  data 
protection. As the Regulation does not explicitly mention information on persons other than the child at 
issue,  the  data  protection  rules  normally  prevent  the  transmission  of  such  information.  In  sum,  the 
provisions  on  cooperation  have  thus  been  considered  as  incomplete  and  not  sufficiently  specific. 
Problems  have  also  been  reported  by  the  national  experts  in  the  evaluation  study  and  the  public 
consultation  with  regard  to  the  translation  of  the  requests  and  the  information  exchanged  because  the 
Regulation is silent on this. This is another key factor in causing delays for parents and authorities in 
child-related proceedings. 

The Regulation is designed to apply as a self-contained system (one-stop shop) which provides all the 
tools necessary for proceedings on parental responsibility matters in a swift, informal way, based on the 
cost-free assistance of Central Authorities. But whenever a social report about an adult or siblings of the 
child  concerned  by  the  proceedings  is  required,  courts  must  have  recourse  to  the  Taking  of  Evidence 
Regulation  also  in  cases  where  other  aspects  of  the  case  are  dealt  with  through  Central  Authority 
channels. Moreover, this latter possibility does not exist for child welfare authorities which often have 
tasks  similar  to  courts  under  the  law  of  the  Member  States.  This  duplicates  procedures  and  causes 
delays as well. 

Lastly,  it  is  worth  mentioning  that  due  to  a  lack  of  financial  and/or  human  resources,  some  Central 
Authorities appear to be impeded in handling all requests with the appropriate swiftness and therefore 
need  to  prioritise.  In  practice  this  often  means  that  they  deal  with  child  abduction  cases  first,  and 
cooperation  requests  under  the  article  discussed  here  (or  under  the  placement  article  discussed  supra 
under  2.4.)  are  only  dealt  with  if  there  are  still  resources  left  –  which  is  often  not  the  case.133  This 
negative  optinion  was  in  particular  voiced  by  the  private  indivuals  who  replied  to  the  public 
consultation  but  it  was  also  confirmed  by  Central  Authorities  during  their  annual  meetings  in  the 
framework  of  the  European  Judicial  Network  in  civil  and  commercial  matters.  Such  delayed 
performance  or  non-performance  is  detrimental  to  mutual  trust  and  places  a  burden  on  future 
cooperation (see Annex 9 for the overview of human resources of Central Authorities). 

133  This  problem  can  be  compounded  in  cases  where  the  same  individuals  in  a  Central  Authority  also  have  to  respond  to 
requests under other EU instruments, for example, the Maintenance Regulation, the Taking of Evidence Regulation or the 
Legal Aid Directive. 

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6.2. 

Scale of the problem 

In the years 2012, 2013 and 2014 the Central Authorities of all EU Member States together registered a 
total  of  502,  775  and  769  incoming  requests  under  this  provision  on  the  exchange  of  information.134 
There are no figures about the outcome of these requests (information received or not) but during the 
annual  meetings  of  the  Central  Authorities  it  was  repeatedly  highlighted  that  requests  concerning 
information about the children often take very long to be answered and are sometimes not answered at 
all because the Regulation is considered too vague. 

6.3. 

Subsidiarity 

The shared Union competence (which has already been exercised through the Regulation) flows from 
Article 81  para. 2  (e)  (effective  access  to  justice)  and  (f)  (elimination  of  obstacles  to  the  proper 
functioning  of  civil  proceedings,  if  necessary  by  promoting  the  compatibility  of  the  rules  on  civil 
procedure  applicable  in  the  Member  States)  TFEU.  For  the  actions  to  be  performed  by  national 
authorities, the article at issue here was intended to provide an autonomous legal basis. Practice in the 
application  of  the  Regulation  has  shown,  however,  that  it  is  not  sufficiently  specific  to  fullfil  this 
purpose in all legal systems of the Member States. Even within the same Member State it often happens 
that one local authority accepts a request under this article while another local authority would reject a 
request  with  identical  wording.  These  drafting  deficiencies  of  Union  law  can  only  be  corrected  by 
Union law in order to ensure the uniform application of this article throughout the Union. 

6.4.  Objectives 

General objective: 

(a)  to  enhance cooperation between the national  authorities and thereby better protect parents and 

children in cross-border proceedings 

(b) to simplify the cross-border cooperation between the Central Authorities  

Specific objectives: 

(a)  to reduce delays associated with cross-border cases concerning children, thereby safeguarding 

the best interests of the child 

(b)  to increase mutual trust among national authorities,in particular Central Authorities, cooperating 

in child matters across borders 

6.5.  Description of Policy Options 
Option 1: Baseline scenario 

This  option  does  not  involve  any  legislative  intervention.  The  "soft  law  measures"  already  in  place 
should  continue.  They  include  a  Practice  Guide  on  the  Regulation  which  was  developed  by  the 
Commission and is updated as the need arises,135 regular meetings of the Central Authorities of Member 
States  organised  at  least  annually  by  the  Commission  in  the  framework  of  the  European  Judicial 
Network  in  civil  and  commercial  matters  to  discuss  structural  problems  and  (in  bilateral  meetings 
between Central Authorities) individual cases. A dedicated website with up-to-date information on the 
family mediation framework in each Member State was created, reaching out to disputing parents and 
promoting the use of international family mediation, in particular in cases of international parental child 
abduction, as a sustainable means of dispute resolution. 

134  Responses  received  from  the  Central  Authorities  of  the  Member  States  to  a  Questionnaire  developed  by  the  Working 
Group  on  Statistics  formed  by  Central  Authorities  within  the  framework  of  the  European  Judicial  Network  for  Civil  and 
Commercial Matters in 2015. 
135 http://ec.europa.eu/justice/civil/files/brussels_ii_practice_guide_en.pdf. 

74 

 
 
                                                            
Option 2: Clarification of the Central Authorities' and other requested authorities’ tasks 

Under  this  option,  in  addition  to  the  soft  law  measures  described  in  Option  1,  clarification  would  be 
provided on the following aspects: (1) Who can ask (2) which assistance or information (3) from whom 
and (4) under which conditions. It would be made clear that also courts and child welfare authorities can 
request  the  assistance  of  Central  Authorities.  Moreover,  with  respect  to  the  transmission  of  social 
reports,  the  provision  would  be  clarified  to  cover  also  reports  on  adults  or  siblings  which  are  of 
relevance  in  child-related  proceedings  under  the  Regulation.  It  would  be  made  clear  that  this  is  (for 
courts) a cost-free alternative (except for possible translation costs) to the Evidence Regulation and for 
child  welfare  authorities  an  alternative  to  obtaining  such  information  through  the  International  Social 
Service, an international Non-Governmental Organisation. As in other provisions of the Regulation, in 
the 1996 Hague Convention and the 1980 Hague Convention, it should be stated that the request is to be 
accompanied by a translation into the language of the requested State. Likewise, it seems advisable to 
establish  some  minimum  requirements  for  a  request  for  a  social  report,  namely  a  description  of  the 
proceedings  for  which  it  is  needed  and  the  factual  situation  that  gave  rise  to  those  proceedings.  A 
standard form could be developed for requests for assistance under the Article, thereby limiting the need 
for translation. The Regulation could also establish an autonomous time limit for the requested authority 
to  respond.  As  concerns  the  requested  national  authority,  e.g.  when  a  social  report  is  asked  for,  the 
Regulation could make clear that the requested authority is under an autonomous obligation created by 
the Regulation to provide such report, without any additional requirements existing under the national 
law of the requested State having to be met. 

Option 3: Clarification of the Central Authorities' and other requested authorities’ tasks plus addition 
of an article on adequate resources 

As  a  starting  point,  this  option  would  include  the  same  soft  law  measures  as  Option  1  and  the  same 
drafting changes as Option 2. In addition, an article stating that Member States shall ensure that Central 
Authorities  have  adequate  financial  and  human  resources  to  enable  them  to  carry  out  the  obligations 
assigned to them under this Regulation. Similar provisions have already been included in other Union 
instruments.136 

6.6.  Analysis of impact of Policy Options 

6.6.1.   Option 1: 

Baseline scenario 

The maintaining of the legislative ‘Status quo’ implies that no legislative changes would be made; for 
the impacts see problem definition. Figures for 2012-2014 show a significant rise of applications from 
2012  to  2013;  the  number  of  applications  under  this  provision  subsequently  remained  stable  at  about 
770 per year. As the number of international couples and cross-border mobility are generally increasing, 
it can be expected that also the number of requests for cross-border cooperation in child-related matters 
will  increase.  In  child-related  cases,  time  is  of  the  essence  as  children  have  a  different  perception  of 
time. The "soft law measures" would continue to be applied because they are important for the smooth 
operation of the Regulation and the efficient handling of cases by courts and authorities concerned, but 
these  measures  alone  cannot  overcome  neither  the  legislative  deficiencies  perceived  in  the  article  on 
cooperation nor the resource problems demonstrated in the problem definition. As for the operation of 
the  current  Article  on  cooperation,  infringement  proceedings,  which  need  to  be  based  on  a  perceived 
structural deficit in the implementation of the Regulation, would promise little success as the provisions 
are admittedly unclear. There are no other legislative project at global or Union levels forthcoming to 
deal with this cross-border issue – which Member States cannot tackle individually. 

136 See, e.g., Article 3a, subpara. 3 of Directive 2002/21/EC as amended by Directive 2009/140/EC of 25 November 2009, 
OJ  18.12.2009,  L  337,  p.37  (47)  and  Article 2(2a)  of  Council  Decision  2001/470/EC  as  amended  by  Decision  No 
568/2009/EC of the European Parliament and of the Council of 18 June 2009, OJ 30.6.2009, L 168, p. 35 (37). 

75 

 
 
                                                            
6.6.2.  Option 2: Clarification of the Central Authorities' and other requested authorities’ tasks 

Effectiveness  to  meet  objectives:  Including  courts  and  authorities  among  those  who  can  request  the 
assistance of Central Authorities will remove doubts as to whether courts and authorities are entitled to 
such assistance. Extending the Article to the transmission of social reports not only about the child, but 
also on adults and siblings if this is of relevance in proceedings concerning the child, together with the 
clarification in a Recital that this is in addition and without prejudice to using the Evidence Regulation, 
will allow the court or authority requiring the information to use the Central Authority as a one-stop-
shop for all information required, rather than resorting to different instruments with different conditions 
and  transmission  channels.  Standard  forms,  and  autonomous  rules  on  reasons/requirements  of  the 
request,  necessary  translations,  together  with  an  autonomous  obligation  of  the  requested  authority  to 
provide  the  information,  and  autonomous  data  protection  rules  setting  out  which  information  may  be 
revealed  to  Central  Authorities  will  remove  all  existing  doubts  about  who  can  request  which 
information from whom under this article which have given rise to questions, delays and non-fulfilment 
of requests.  An autonomous time limit  for the response will further contribute to  a  smooth  and  quick 
handling of requests for assistance under this Article. In addition, the soft law measures would need to 
be  continued  (see  baseline  scenario).  While  these  measures  will  enhance  the  cooperation  under  this 
article  and  lead  to  some  savings  of  human  resources,  it  is  not  to  be  expected,  however,  that  these 
savings  are  sufficiently  big  to  convert  Central  Authorities  which  are  currently  seriously  under-staffed 
and under-resourced to fully operational authorities. 

Cost savings: Those Central Authorities which have so far refused to assist courts and authorities upon 
their request, and to obtain or provide social reports about adults and siblings which are of relevance for 
child-related proceedings, will in the future have to carry out such requests, which may increase their 
workload. However, as the Central Authority is normally not the authority drawing up the social report 
but only passing on the request to the competent national authority and later transferring the report to 
the requesting Central Authority, the additional work is limited. Likewise, the assistance to courts with 
the  transfer  of  jurisdiction  and  the  forwarding  of  judgments  is  normally  limited  to  a  mere  letter-box 
function so that the workload of Central Authorities would only increase to a minimal extent (if at all) 
because the current correspondence discussing whether a request falls under the Regulation or not will 
no longer occur. In total, the reformulation of the Article therefore is likely to save costs. When the text 
of this Article spells out all the necessary details, allows for a one-stop-shop and contains a time limit, 
requests  for  assistance,  in  particular  for  social  reports,  can  be  fullfilled  more  quickly  in  a  single, 
streamlined  procedure  under  this  Regulation,  thereby  shortening  the  proceedings  for  which  they  are 
needed and reducing the amount of human resources necessary to process a request. However, given the 
different organisation of the work at Central Authorities, the number of staff and their remuneration it is 
not possible to make any precise estimates in this regard. 137 

Stakeholders’ views: Stakeholders’ views on cooperation were mixed during the public consultation. 
Of  the  Central  Authority  staff  members  who  responded,  83%  (i.e.  5  of  6)  believe  that  cooperation 
between Central Authorities functions well. Also 58% of the legal practitioners who responded (i.e. 31 
of  53)  are  of  this  view.  However,  the  majority  of  private  individuals  who  responded  (76%,  i.e.  26  of 
34), are of the view that cooperation does not function well. Lack of cooperation and communication 
was a main feature of most answers. Excessive procedural formalities and slow transfer of information 
were mentioned. 

6.6.3.  Option 3: Clarification of the Central Authorities' and other requested authorities’ tasks plus 

addition of an article on adequate resources 

For the clarification part see the preceding section on Option 2. For the additional article on adequate 
resources, the following needs to be added: 

137 See supra at 3.1., last paragraph, and at 4.5.1. 

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Effectiveness  to  meet  objectives:  An  explicit  obligation  in  the  Regulation  for  Member  States  to 
provide sufficient financial and human resources for their Central Authorities will give extra weight to 
the implementation of the Regulation and render explicit what should already be considered as implicit 
in  terms  of  effective  implementation  of  the  Regulation.  Indeed,  in  the  interests  of  mutual  trust,  it  is 
important that there is a "two-way street" in terms of cooperation. The proposed resource article will be 
important if priorities have to be set at national level and budget has to be allocated accordingly within a 
Member State. An explicit obligation spelled out in the Regulation should stress the political importance 
of duly equipped Central Authorities in order to ensure an efficient application of the Regulation. The 
indicator  for  sufficient  resources  would  be  the  performance  of  the  respective  Central  Authority. 
Monitoring  the  performance  of  Central  Authorities  by  the  Commission  could  take  place  more 
effectively, in particular upon complaints from other Central Authorities. 

Costs:  For  some  Member  States  the  obligation  to  provide  their  Central  Authority  with  adequate 
resources  is  likely  to  generate  additional  costs  (in  particular  for  human  resources)  if  their  Central 
Authorities currently are not sufficiently equipped. 

Stakeholders’  views:  See  Option  2.  The  additional  element  of  including  an  article  on  adequate 
resources was not addressed during the consultation of stakeholders 

6.7.  Comparing the Options and preferred Policy Option 

Objectives/Impacts 

Option 1 

Option 2 

Option 3 

Baseline 
scenario 

Reduce  delays  associated 
with  cross-border  cases 
concerning children 

0 

the 

Safeguard 
best 
interests  of  the  child  / 
Protection  of  fundamental 
rights 

0 

Addressing 
identified 
the 
shortcomings  by  clarifying  the 
Article  on  Central  Authority 
assistance,  setting  out  who  is 
entitled  to  assistance,  which 
assistance,  by  whom,  and  what 
are the requirements 

ensure 
option  would 
This 
somewhat  swifter  procedures  for 
obtaining  results  in  cross-border 
cases  concerning  children  as  the 
need  for  requests  for  clarification 
would  be  eliminated  as 
the 
obligations  of  Central  and  other 
national  authorities  under 
this 
provision would be unambiguous. 

This option would have a positive 
impact  on  fundamental  rights, 
since  it  would  enhance  overall 
effectiveness and therefore protect 
the best interests of the child. The 
effect  would  however  be  subject 
to  authorities  being  sufficiently 
resourced. 

Clarification of the Central 
Authorities' and other 
requested authorities’ tasks 
plus addition of an article on 
adequate resources 

This  option  would  ensure  much 
swifter procedures for obtaining 
consent  to  cross-border  cases 
concerning  children  as  the  need 
for  requests  for  clarification 
would 
In 
addition, the obligation imposed 
on Member States to equip their 
Central Authority with adequate 
resources  would  reduce  delays 
caused by a lack of resources. 

eliminated. 

be 

rights,  since 

enhance 
and 

This option would have an even 
impact  on 
greater  positive 
it 
fundamental 
overall 
would 
effectiveness 
therefore 
protect  the  best  interests  of  the 
child. In addition, the obligation 
imposed  on  Member  States  to 
equip  their  Central  Authority 
with  adequate  resources  would 
improve  speed  and  quality  of 
their  work,  thereby  enhancing 
the  best 
the  protection  of 
interests 
children 
the 
concerned. 

of 

On  the  basis  of  the analysis  set  out  above,  Option  3 is  the preferred  policy  option as  maintaining  the 
status quo would not address the existing problems which can be summarised by the words uncertainty, 

77 

 
 
 
unpredictability and ensuing delays and sometimes non-fulfilment of requests. It is to be expected that 
the described clarification of the parts of the article reported as insufficiently clear and the addition of 
explicit legal bases for the parts currently missing will solve the problems described to a large extent. In 
addition,  the  well-established  soft  law  measures  will  need  to  be  continued  to  provide  an  ongoing 
supporting  structure  for  those  handling  applications  under  the  Regulation.  Therefore,  the  preferred 
option  will  meet  the  operational  objectives  of  clarifying  the  obligations  of  Central  and  other  national 
authorities  under  the  cooperation  article  of  the  Regulation  and  establishing  time  limits  for  national 
authorities to respond to requests for information under the Regulation. For those Member States which 
have  already  equipped  their  Central  Authorities  with  sufficient  resources,  the  new  article  requiring 
adequate  resources  does  not  create  additional  obligations  or  burdens  going  beyond  what  they  already 
consider their obligation under the current text. Vis-à-vis those Member States who did not comply with 
the implicit obligation so far, the addition of an explicit obligation constitutes the necessary legislative 
minimum  intervention  which  will  strengthen  the  position  of  those  in  charge  of  implementing  the 
Regulation in domestic budget negotiations. 

IV.  CONCLUSION 

7. 

OVERALL EVALUATION OF IMPACT OF PREFERRED POLICY OPTIONS 

7.1. 

Summary of the preferred Policy Options 

The preferred policy options for the revision of the Regulation can be summarized as follows: 

For matrimonial matters, the preferred policy option is retaining the status quo. This means that spouses 
in an international marriage will continue to have a possibility to consolidate the different proceedings 
as foreseen in the Regulation and other family law instruments (such as the Maintenance Regulation). 
At the same time, the flexibility for the spouses to apply for a divorce in one of the fora indicated in the 
Regulation  will  be  maintained.  The  benefits  of  reducing  or  abolishing  this  flexibility  would  be 
outweighed by  the  disadvantages  of  the  options  considered  to  respond  to  the  "rush  to  court"  problem 
(transfer of jurisdiction or hierarchy of grounds) signalled by a few Member States. Also, spouses not 
having a common EU nationality who live in a third State but retain links with a certain Member State 
and want to get divorced will continue to rely on the national rules to access EU courts or to have their 
judgment (obtained in a third country) recognised in the EU. 

Retaining the status quo is mainly motivated by the following reasons. While possible problems were 
signalled in the evaluation, overall the current available information shows that the functioning of the 
Regulation  in  matrimonial  matters  has  proved  to  be  to  a  high  extent  satisfactory.  In  contrast  to  the 
parental  responsibility  issues,  only  limited  evidence  of  existing  problems  (including  statistics)  was 
available to allow a precise indication of the need to intervene and the scale of the problems, and a fully 
informed choice of any considered option. In order to possibly re-consider these matters at a later stage, 
it  seems  necessary  to  collect  further  relevant  data,  such  as  on  the  size  of  the  problems,  practices  and 
eventual impacts, for example through the European Judicial Network in civil and commercial matters.  

In addition, matrimonial matters seem currently a highly sensitive political issue on which it is difficult 
to  reach  a  unanimous  agreement.  Some  Member  States  have  signalled  their  difficulty  to  accept  any 
proposal which would relate, even indirectly, to the definition of marriage as embedded in the national 
laws. This has recently been demonstrated by the failure to reach unanimity on the proposal concerning 
matrimonial property regimes.  

In  this  context,  it  is  considered  that  a  review  of  the  matrimonial  matters  in  the  Regulation  is  not 
opportune at this stage, but may better be dealt with at a later moment, as needed. The Commission will 
therefore monitor the evolution of national laws and practices on these matters so as to appreciate when 
the time may be ripe for changes in this area. 

78 

 
 
With  regard  to  the  parental  responsibility  matters,  the  preferred  option  is  for  an  EU  intervention  as 
motivated  by  the  scale  and  urgency  of  the  problem.  More  specifically,  the  child  return  procedure 
should be improved through an option clarifying the current mechanism and introducing new measures 
such as concentration of jurisdiction and the possibility for the court of refuge to order urgent protective 
measures which can also "travel with the child" to the State of habitual residence if necessary. The new 
rules  would  make  the  time  limit  for  the  return  achievable  by  specifying  the  time  frame  for  the 
proceedings  before  the  courts  of  the  first  and  second  instance  separately.  Proceedings  would  be 
shortened  by  introducing  a  time  limit  also  for  the  requested  Central  Authority,  and  by  limiting  the 
number of appeals possible against an order on return or non-return to one. The preferred option would 
explicitly invite the judge to consider whether the judgment should be provisionally enforceable. 

For placement decisions an autonomous consent procedure should be established to be applied to all 
cross-border  placements,  flanked  by  a  time  limit  for  the  requested  Member  State  to  respond  to  the 
request. 

Exequatur would be abolished while maintaining appropriate safeguards (grounds for non-recognition 
and challenges against enforcement as such or of specific enforcement measures) to be invoked jointly 
by  the  defendant  parent  at  the  stage  of  enforcement  in  the  Member  State  of  enforcement,  thereby 
shortening  the  overall  duration  of  the  proceedings.  To  diminish  problems  resulting  from  different 
national practices for hearing children and from judgments issued by courts lacking a close connection 
with the child at the time of judgment, and the resulting refusals of the recognition of the judgment, the 
preferred  option  would  require  Member  States  to  mutually  respect  their  national  rules  while  obliging 
them to  give the child the opportunity to express  his  or  her views and take due account  of them, and 
bring  the  jurisdiction  in  line  with  the  guiding  principle  of  proximity  to  the  child  by  nuancing 
perpetuatio  fori.  As  far  as  enforcement  is  concerned,  the  preferred  option  would  guarantee  that 
enforcement  could  only  be  refused  on  the  basis  of  a  uniform  and  limited  list  of  grounds  for  refusal. 
There  would  also  be  a  time  limit  indicated  for  enforcement  with  a  reporting  obligation  where  this  is 
surpassed and the possibility for the court of origin to declare a judgment provisionally enforceable in 
case of an appeal against the judgment while leaving leeway to deal with urgent risks to the child's best 
interest at the enforcement stage, which would in turn clearly enhance the efficiency of the proceedings 
and the protection of the best interests of the child. 

With regard to cooperation, a clarification of the respective article should specify; (1) who can ask (2) 
which assistance or information (3) from whom and (4) under which conditions. A time limit would be 
indicated  for  the  requested  authority  to  respond.  It  would  be  made  clear  that  also  courts  and  child 
welfare  authorities  can  request  the  assistance  of  Central  Authorities.  In  addition,  the  well-established 
soft  law  measures  would  be  continued  to  provide  an  ongoing  supporting  structure  for  those  handling 
applications  under  the  Regulation.  The  addition  of  the  proposed  article  on  adequate  resources  would 
render  explicit  the  current  implicit  requirement  which  is  presently  met  in  the  case  of  certain  Central 
Authorities, but not all, and would thereby increase mutual trust. 

7.2.  The preferred options' effectiveness to achieve the policy objectives 

As  indicated  in  the  assessment  of  the  individual  policy  options,  the  preferred  options  address  the 
problems identified better than any of the other options (see Annex 11 for the summary of the general, 
specific and operational objectives) taking into account the current political framework. 

As regards matrimonial matters, the preferred policy option which is the status quo will continue to be 
applied.  Spouses  who  want  to  choose  a  court  to  settle  their  divorce  will  not  be  able  to  do  so.  They 
would,  however,  be  able  to  consolidate  the  different  family  proceedings  through  the  existing 
possibilities  given  in  other  instruments.  Spouses  not  having  a  common  EU  nationality  who  live  in  a 
non-EU country would access EU courts in accordance with the national law. The problem of rush to 
court,  perceived  by  a  limited  number  of  Member  States,  would  remain  as  long  as  Rome  III  does  not 
apply in all Member States (see problem definition in sections 1.1. and 2.1. on matrimonial matters).  

79 

 
 
The  preferred  package  of  policy  options  for  parental  responsibility  matters  would  meet  the 
simplification objectives by reducing delays relating to the return of the child, the placement decisions, 
and cooperation between the Central Authorities, and eliminate unnecessary delays and costs related to 
the  exequatur  requirement.  At  the  same  time  it  would  also  respond  to  the  urgency  of  remedying  the 
problems  currently  faced  in  this  area,  where  it  is  of  outmost  importance  to  act  and  set  the  scene  for 
changes on the ground keeping in mind the situation of children, families and their best interest. 

The  efficiency  of  the  proceedings  would  be  improved,  as  regards  the  child  return  procedure,  by 
reducing the number of appeal levels, providing for provisional enforceability of judgments, by defining 
the  role  and  duties  of  Central  Authorities  more  clearly  and  obliging  Member  States  to  concentrate 
jurisdiction  in  a  limited  number  of  courts  in  a  manner  coherent  with  the  structure  of  their  respective 
legal system. For placement decisions, the delays with obtaining consent will be reduced by establishing 
an  autonomous  consent  procedure  and  by  a  time  limit  (max.  eight  weeks  as  opposed  to  the  current  6 
months and more) for the requested Member State to respond to the request. As regards recognition and 
enforcement, delays relating to obtaining exequatur (taking up to several months) will be eliminated. As 
the safeguards (grounds for non-recognition and challenges against enforcement as such or of specific 
enforcement  measures)  would  be  invoked  jointly  by  the  defendant  at  the  stage  of  enforcement  the 
overall  duration  of  the  proceedings  would  be  shortened.  Similarly,  the  preferred  option  would  reduce 
delays  (in  some  instances  going  beyond  one  year)  for  the  actual  enforcement  by  establishing  a 
maximum  time  frame  of  six  weeks.  Finally,  the  clarification  of  the  role  of  Central  Authorities  will 
reduce delays in their mutual cooperation. 

Efficient procedures will ultimately enhance the protection of the best interests of the child and protect 
the relationship between parents and their children. 

The  preferred  policy  options  for  parental  responsibility  matters  would  be  coherent  with  other 
international  instruments  in  this  area,  namely  the  1980  and  the  1996  Hague  Conventions,  and  would 
align the Regulation even more with them. 

The preferred policy options would lead to cost savings for European citizens engaged in cross-border 
litigation. The abolition of exequatur would allow them to save the major part of the current costs of the 
procedure  (on  average  € 2,200  to  be  paid  for  processing  the  application).  In  addition,  the  preferred 
policy option for enforcement would contribute to saving costs by parents seeking enforcement as they 
would  not  necessarily  need  to  look  for  highly  specialised  lawyers  with  knowledge  of  the  foreign 
enforcement system. Even though it is not possible to estimate in how many cases such savings could 
be  achieved,  it  should  be  noted  that  every  10  hours  of  work  of  a  specialised  lawyer  generate  costs 
between  € 1,000  and  4,000.  There  could  be  a  small  reduction  of  costs  for  Central  Authorities;  if 
procedures contain unified rules or are shorter at the enforcement stage, there should be fewer requests 
for  assistance,  and/or  assistance  would  be  required  for  a  shorter  period.  However,  given  the  different 
organisation of work and remuneration of the Central Authorities' staff it is not possible to quantify such 
savings. Similarly, the reformulation of the cooperation rule is likely to save costs. Detailed description 
of the cooperation of the Central  Authorities allows for a one-stop-shop and contains a time  limit for 
responding  to  requests  for  assistance,  in  particular  for  social  reports.  The  obligations  can  thus  be 
fulfilled more quickly in a single, streamlined procedure under this Regulation, thereby shortening the 
proceedings for which the assistance is needed and reducing the amount of human resources necessary 
to process a request. 

7.3.   Compliance costs 

Taken as a whole, the preferred policy options would trigger relatively modest compliance costs. The 
abolition of exequatur and the concentration of jurisdiction would require Member States to incur costs 
for training to familiarize the legal profession with the new procedures envisaged. Training is however 
already necessary today, and without concentration of jurisdiction, far more judges need to be trained. 
Experience in Member States which have concentrated jurisdiction, on the other hand, has shown that 
judges hearing more abduction cases are more likely to participate in any training that is offered, and the 
judgments  by  those  specialised  and  experienced  first  instance  courts  are  appealed  less  frequently, 

80 

 
 
thereby generating cost savings in the individual case and for the administration of justice in general, as 
appellate  courts  are  less  congested.  For  some  Member  States  the  obligation  to  provide  their  Central 
Authority  with  adequate  resources  is  likely  to  generate  additional  costs  (in  particular  for  human 
resources)  if  their  Central  Authorities  currently  are  not  sufficiently  equipped,  but  this  obligation  is 
enshrined in the Regulation already now. 

The other changes envisaged constitute relatively straightforward changes to existing rules which would 
not require the creation of new procedures and should be able to be applied by the authorities without 
the need of special training. 

7.4.  

Impact on fundamental rights 

All  elements  of  the  preferred  policy  options  respect  and  enhance  the  rights  set  out  in  the  Charter  of 
Fundamental  Rights,  and  in  particular  the  right  to  an  effective  remedy  and  the  right  to  a  fair  trial 
guaranteed  in  its  Article  47.  Given  the  subject  matter  of  the  Regulation,  notably  the  relationship 
between parents and their children, the preferred policy options for parental responsibility matters will 
enhance  the  right  to  the  respect  for  private  and  family  life  (Article  7).  Finally,  the  preferred  policy 
options will strengthen the rights of the child (Article 24) through the proposed measures relating to the 
hearing  of  the  child  and  the  measures  proposed  to  enhance  the  efficiency  of  return  proceedings.  The 
proposed changes will bring the Regulation further in line with the United Nations Convention on the 
Rights of the Child by linking the provisions more closely to it. 

8.  

PROPORTIONALITY OF EU ACTION 

The proportionality principle requires measures taken to be proportionate to the size and extent of the 
problems. 

National substantive rules will to some extent be affected by the proposed action, insofar as common 
standards on enforcement are proposed. This is, however, justified by the aim of ensuring full efficiency 
of the Regulation and the fact that for individuals to be able to fully exercise their rights wherever they 
might  be  in  the  Union,  the  incompatibilities  between  judicial  and  administrative  systems  between 
Member States have to be removed.  

There is a large and growing number of EU citizens that are affected directly and indirectly by cross-
border child related proceedings. The costs of the proposed reforms are modest and the benefits are, in 
comparison,  very  large.  The  proposed  options  would  strengthen  legal  certainty,  increase  flexibility, 
ensure  access  to  court  and  efficient  proceedings  whilst  Member  States  retain  full  sovereignty  with 
regard to the substantive laws on parental responsibility. 

The problems that the preferred policy option would address stem from the cross-border nature of the 
matters  involved.  No  Member  State  acting  alone  would  be  able  to  address  and  solve  the  problems 
identified in the current situation as there is always more than one Member State concerned. 

In addition, the lack of EU action in this area would significantly damage the legitimate interests of EU 
citizens, who have expectations on the functioning of the common judicial area. In the current situation, 
parents  face  lengthy  proceedings  when  it  comes  to  proceedings  concerning  children.  The  preferred 
policy option of EU legislative action would be able to address such problems. 

9. 

LEGAL BASIS 

The  legal  basis  for  Union  action  in  family  matters  is  established  in  Articles  81(1),  (2)  and  (3)  of  the 
Treaty on the Functioning of the European Union. These provisions state that the Union is to ‘develop 
judicial cooperation in civil matters having cross-border implications, based on the principle of mutual 
recognition  of  judgments  and  of  decisions  in  extrajudicial  cases’.  The  Council  shall  act  unanimously 
after consulting the European Parliament. 

81 

 
 
10.  MONITORING AND EVALUATION 

Monitoring  and  evaluation  of  the  Regulation  are  important  elements  to  ensure  its  efficiency  and 
effectiveness in addressing the problems and meeting policy objectives. In order to monitor the effective 
application of the amended Regulation, regular evaluation and reporting by the Commission will take 
place. To fulfil these tasks, the Commission will prepare regular evaluation reports on the application of 
the  Regulation,  based  on  consultations  of  Member  States,  stakeholders  and  external  experts.  Regular 
expert  meetings  will  also  take  place  to  discuss  application  problems  and  exchange  best  practices 
between Member States in the framework of the European Judicial Network. 

In  most  Member  States,  there  is  no  systematic  collection  of  statistical  data  on  the  application  of  the 
Regulation  making  it  very  difficult  to  measure  how  the  Regulation  affects  cross-border  litigation.  A 
requirement  on  Member  States  to  provide  information  on  the  application  of  the  Regulation is  already 
included in the Regulation. Well in advance of the next review of the Regulation, a targeted request to 
Member  States  inviting  their  courts  to  keep  statistics  on  certain  legal  aspects  of  matrimonial  matters 
over a limited period of time and subsequently provide them to the Commission could be circulated. It 
may be assumed that such limited and targeted request, formulated with the assistance of experts from 
Member States within the EJN and circulated with a sufficient pre-warning before the period for which 
statistics are requested begins, should be acceptable to Member States as they also have an interest in 
underpinning possible proposals by statistical evidence and this would be a one-time effort rather than 
imposing ongoing administrative burdens on Member States (like keeping statistics on these matters on 
an  ongoing  and  regular  basis).  The  results  should  then  help  to  assess  more  precisely  the  scale  of  the 
problems and the need for a specific EU intervention and possible future solutions. 

In order to provide guidance in the monitoring process, some indicators are listed in the table in Annex 
12.  In  terms  of  timing,  an  evaluation  every  5  years  would  be  useful  in  order  to  closely  monitor  the 
evolution of the impacts and the context in which the Regulation operates. 

82 

 
 
 
 
ANNEX 1 - PROCEDURAL INFORMATION 

Lead DG: Directorate General Justice and Consumers 

Agenda Planning 

Reference AP N° 

 Short title 

Foreseen adoption 

2013/JUST/003 

Brussels IIa Regulation 

June 2016 

On 15 April 2014, the Commission adopted a report on the application of the Brussels IIa Regulation138. 
In  this  report,  the  Commission  announced  a  further  policy  evaluation  of  the  existing  rules  and  their 
impact on citizens and to take action as appropriate on the basis of this evaluation. 
The  Commission  in  its  2016  Work  Programme139  announced  that  the  existing  legislation  should  be 
reviewed to make sure that it is fit to make a real difference on the ground. The Brussels IIa Regulation 
is one of the initiatives mentioned in Annex II to the Work Programme, REFIT initiatives. 

Organisation and timing 

Pending the political validation, a first Inter-Service meeting took place on 10 June 2015 to discuss the 
outcomes  of  the  evaluation  of  the  Regulation.  A  formal  Inter-Service  Group  (ISG)  was  set  up  in 
September 2015. The Inter-Service Group is chaired by the Directorate General Justice and Consumer 
(JUST)  and  the  following  Directorates  General  have  been  invited  to  participate:  General  Secretariat 
(SG),  Legal  Service  (LS),  Migration  and  Home  Affairs  (Home),  Education  and  Culture  (EAC), 
Employment and Social Affairs (EMPL), and Budget (BUDG). 

The Inter-Service Group met 3 times until the submission of the Impact Assessment to the Regulatory 
Scrutiny Board in November 2015; the last meeting took place on 9 November 2015. The Inter-Service 
Group approved the Inception Impact Assessment that was published on 8 October 2015 and the Impact 
Assessment Report. 

Consultation of the Regulatory Scrutiny Board 

The Impact Assessment Report was examined by the Regulatory Scrutiny Board on 2 December 2015. 
Recommendations  from  the  Board  were  transmitted  on  4  December  2015  and  were  implemented  as 
follows: 

Board's Recommendations 

Implementation  of  the  recommendations  into  the 
revised IA Report 

1. The findings from the REFIT exercise 
should be presented at the beginning of 
the report. Such a section should include 
the 
a  presentation  of 
evaluation 
the 
study 
Commission  services'  conclusions  from 
the  REFIT exercise. It should  clarify  how 

the  results  of 
and  highlight 

1.  A  new  chapter  called  "REFIT"  was  added  in  the 
introductory  part  to  present  the  results  of  the 
evaluation  study  and  to  clarify  how  the  areas  for 
simplification  were  identified.  It  includes  information 
concerning 
reduction. 
Moreover,  in  the  analysis  of  impact  of  the  individual 

anticipated  burden 

the 

138 Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee 
on the application of Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of 
judgements  in  matrimonial  matters  and  the  matters  of  parental  responsibility,  repealing  Regulation  (EC)  No  1347/2000 
(COM (2014) 225 final). 
139 COM(2015) 610 final of 27.20.2015, p.4 and Annex II, p. 2, Item 27. 

83 

 
 
 
                                                            
the areas for simplification were identified 
and  how  the  proposed  solutions  will 
simplify  and/or  modernise  the  existing 
instrument  to  reflect  today's  context  (e.g. 
explaining  whether 
the  proposal  also 
covers  registered  partnerships).  Finally, 
the anticipated burden reduction should be 
quantified. If this is not possible, it should 
be clearly explained why not. 

family 

international 

III  Regulation,  Brussels 

2.  The  report  should  better  present  the 
evidence  base  that  led  to  the  proposed 
amendments.  After  clarifying  the  overall  EU 
(e.g.  Rome 
I 
law 
Regulation)  and 
context  (e.g.  the  Hague  Convention),  key 
findings  from  the  evaluation  of  the  existing 
Brussels  IIa  Regulation  should  be  presented. 
In  view  of  the  limited  amount  of  available 
hard evidence, the report should better trace 
back  problems  with  the  source  from  which 
they  were  identified  (case  law,  evaluation, 
stakeholder consultations). 

not 

3.  The  baseline  scenario,  as  a  dynamic 
static 
and 
should 
concept, 
incorporate 
likely  developments  and 
evolutions  in  the  context  of  EU  family 
law.  The  description  of  options  should 
also  take  into  account  this  diverse  and 
dynamic  context.  When  presenting  the 
options, the report should explain how the 
proposed  modifications  are  articulated 
coherently with other existing instruments 
and  practices  already  in  place  in  some 
Member  States  (e.g.  how  would 
the 
proposed  measures  to  prevent  a  "rush  to 
court"  coexist  with  the  provisions  of  the 
Rome III regulation in force in 16 Member 
States).  The  argumentation  for  specific 
options  should  also  be  strengthened  by 

options,  an  attempt  has  been  made  to  quantify  time 
and cost savings as far as possible. Where this was not 
possible, reasons are now given for this. 

it 

As  for  registered  partnerships, 
is  now  stated 
explicitly  that they  are  not covered  by  the  Regulation 
and/or  the  proposed  recast.  It  is  also  made  explicit 
that  no  substantive  changes  will  be  proposed  to  the 
sensitive part on matrimonial matters as a unanimous 
agreement  in  the  Council  in  this  area  seems  to  be 
unlikely  and  the  scarce  data  did  not  allow  for  a  fully 
informed choice of option. 

2.  The  report,  in  chapter  2  of  the  introduction, 
clarifies  the  background  and  the  interplay  with 
other EU and international family law instruments. 
It  also  explains  how  qualitative  and  quantitative 
data was collected. Each problem description now 
contains information about the source from which 
the problem was identified.  

intervention 

is  described 

3. The likely evolution of the situation without EU 
legislative 
in  each 
problem  description.  To  take  account  of  the 
dynamic  context,  in  the  analysis  of  impact  of  the 
baseline  scenario  for  each  issue,  a  discussion  of 
other  possible  (in  particular  legislative  –  EU  or 
Member State- ) developments was added, i.e. the 
consideration 
of 
the 
adoptions/amendments  of  other  instruments  such 
as  the  Rome  III  Regulation  or  Member  States' 
legislation. 
The  argumentation  for  specific  options  was 
strengthened  by  including  wherever  relevant  an 
explanation  of  the  effectiveness  of  some  of  the 
proposed  measures  that  are  already  in  place  in 
some Member States and their proven benefits. 

probability 

of 

84 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
4. The report marks clearer which of the proposed 
changes  are  substantial  in  nature  by  making 
explicit references in the text. The justification for 
such  measures  and  the  stakeholders'  opinion  was 
added. 
the 
modification  would  lead  to  differences  when 
dealing with domestic or cross-border cases. 

It  was  also  clarified  whether 

5.  To  fully  implement  the  Board's  comments,  it 
was  necessary  to  add  further  explanations  and 
therefore it was not possible to shorten the report. 
However,  the  language  was  improved  to  make  it 
better  readable  and  understandable  for  a  non-
expert.  This 
the 
options. 

the  description  of 

includes 

of 

an 

explanation 

including 
the 
effectiveness  of  some  of  the  proposed 
measures that are already in place in some 
Member  States  (e.g.  use  of  specialist 
courts)  and  how  they  could  benefit  other 
Member States. 

adjustments 

4.  The  report  should  better  distinguish 
between  minor 
and 
substantial  changes  proposed.  It  should 
summarise  the  concrete  implications  of 
such changes for different Member States. 
The  need  for  the  more  intrusive  measures 
should  be  further  substantiated,  together 
with  an  analysis  of  their  proportionality 
and  Member  States'  willingness  to  accept 
such  changes.  In  this  respect,  the  report 
should  also  clarify  the  possibility  and 
implications of having potentially different 
regimes  in  some  Member  States  when 
dealing  with  domestic  or  cross-border 
cases 
responsibility 
in  parental 
matters, as regards hearing of the child). 

(e.g. 

5. Procedure and presentation  
The report could be further shortened, with 
a  view  to  make  it  more  accessible.  In 
addition,  the  language  could  be  rendered 
less technical / legalistic in order to better 
bring  out  the  underlying  objectives  of  the 
initiative and the evidence base. Given the 
currently  limited  provision  of  quantified 
evidence,  the  basis  and  rationale  for  the 
proposed 
be 
summarised for each option. 

amendments 

should 

Evidence used 

The review of the Regulation was based upon comprehensive information from the following sources:  

Sources of the Commission  

The report adopted by the Commission in April 2014140 on the application of the Regulation constituted 
the  first  assessment  of  the  functioning  of  the  Regulation.  It  was  based  on  input  received  from  the 
members  of  the  European  Judicial  Network  in  civil  and  commercial  matters  (in  particular  Central 
Authorities  and  judges),  the  Commission's  Green  Paper  on  applicable  law  and  jurisdiction  in  divorce 
matters,  and  the  work  carried  out  within  the  framework  of  the  Hague  Conference  on  Private 
International Law, of which EU is a member, with regard to the monitoring of the 1980 and 1996 Hague 
Conventions  on  international  child  abduction  and  international  child  protection.  Finally,  it  took  into 

140 COM(2014) 225 final 

85 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                            
account  citizens'  letters,  complaints,  petitions  and  case  law  of  the  Court  of  Justice  of  the  European 
Union. 

Consultation 

Between 15 April and 18 July 2014 the Commission carried out a 3-month public consultation on the 
functioning of the Regulation and its possible amendments which was addressed to the broadest general 
public.  In  response  to  it,  there  were  193  replies  submitted  by  stakeholders:  Member  States,  legal 
practitioners, Central Authorities, academics, NGOs and citizens141. 

Moreover,  in  the  course  of  the  review  the  Commission  consulted  members  of  the  European  Judicial 
Network in civil and commercial matters three times (2013, 2014 and 2015). 

Furthermore,  the  Commission  held  an  informal  meeting  with  the  Member  States  in  October  2015  to 
discuss some key amendments to the Regulation which were under consideration. In the preparation of 
this  meeting  Member  States  were  asked  for  assistance  in  completing  the  data  gathered  so  far  on  the 
operation of the Regulation to feed the Impact Assessment. 

Studies 

An evaluation study on the functioning of the Regulation and the policy options for its amendment142 
was  finalised  in  June  2015.  It  examined  whether  the  core  objectives  of  the  Regulation,  i.e.  mutual 
recognition  and  mutual  enforcement  of  decisions  in  matrimonial  matters  and  in  matters  of  parental 
responsibility  based  on  common  rules  on  jurisdiction  and  mutual  trust,  minimising  cases  of  non-
recognition, and return without delay of children wrongfully removed to or retained in another Member 
State have been achieved effectively and efficiently. The Impact Assessment part of the study assessed 
different policy options for each of the legal issues identified. Based on this analysis, the comprehensive 
preferred option (consisting of a matrix of preferred policy options) was developed and assessed against 
the status quo of the application of the Regulation. 

In addition, the following studies were taken into account: 

2012  Study  on  the  European  framework  for  private  international  law:  Current  gaps  and  future 
perspectives,  prepared  by  Prof.  Dr.  Xandra  Kramer  (scientific  director),  Mr  Michiel  de  Rooij,  LL.M. 
(project leader), Dr. Vesna Lazić, Dr. Richard Blauwhoff and Ms Lisette Frohn, LL.M., available at: 

http://www.europarl.europa.eu/document/activities/cont/201212/20121219ATT58300/20121219ATT58
300EN.pdf 

2011 Statistical analysis of applications made in 2008 under the Hague Convention of 25 October 1980 
on the Civil Aspects of International Child Abduction — Part II ― Regional Report, Prel. Doc. No 8 B 
―  update  of  November  2011  for  the  attention  of  the  Special  Commission  of  June  2011,  available  at 
http://www.hcch.net, prepared by Prof. Nigel Lowe, Cardiff University Law School, available at: 

https://assets.hcch.net/upload/wop/abduct2011pd08be.pdf 

2010 Study on the parental responsibility, child custody and visitation rights in cross-border separations, 
prepared by Institut Suisse de droit comparé (ISDC), available at: 

http://www.europarl.europa.eu/RegData/etudes/etudes/join/2010/425615/IPOL-
PETI_ET(2010)425615_EN.pdf 

141 The results were published at: https://ec.europa.eu/eusurvey/publication/BXLIIA. 
142 Study on the assessment of Regulation (EC) No 2201/2003 and the policy options for its amendment, Evaluation, Final 
Report, May 2015, available at: http://ec.europa.eu/justice/civil/document/index_en.htm. 

86 

 
 
                                                            
2010  Study  on  the  cross-border  exercise  of  visiting  rights,  prepared  by  Dr  Gabriela  Thoma-Twaroch, 
President of Josefstadt District Court, Vienna, available at: 

http://www.europarl.europa.eu/RegData/etudes/note/join/2010/432735/IPOL-
JURI_NT(2010)432735_EN.pdf 

2010  Study  on  the  Interpretation  of  the  Public  Policy  Exception  as  referred  to  in  EU  Instruments  of 
Private International and Procedural Law, prepared by Prof. Burkhard Hess and Prof. Thomas Pfeiffer, 
Heidelberg University, available at: 

http://www.europarl.europa.eu/RegData/etudes/etudes/join/2011/453189/IPOL-
JURI_ET(2011)453189_EN.pdf 

2007 Report Study on Residual Jurisdiction prepared by Prof. A. Nuyts, available at: 

http://ec.europa.eu/justice_home/doc_centre/civil/studies/doc_civil_studies_en.htm  

2007  Comparative  study  on  enforcement  procedures  of  family  rights,  prepared  by  T.M.C.  ASSER 
Institut, available at: 

http://ec.europa.eu/justice_home/doc_centre/civil/studies/doc_civil_studies_en.htm 

2006 Study to inform a subsequent Impact Assessment on the Commission proposal on jurisdiction and 
applicable law in divorce matters, drawn up by the European  Policy Evaluation Consortium (EPEC) - 
Commission Staff Working Document - Impact assessment SEC(2006) 949 

2006 Study on Enforcement of orders made under the 1980 Convention - A comparative legal study -, 
Prel.  Doc.  No 6  of  October  2006  for  the  attention  of  the  Fifth  meeting  of  the  Special  Commission  to 
review the operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International 
Child  Abduction  (The  Hague,  30  October  –  9  November  2006),  prepared  by  Dr  Andrea  Schulz, 
available at: 

https://assets.hcch.net/upload/wop/abd_pd06e2006.pdf 

Surveys 

In  a  survey  with  the  Central  Authorities  carried  out  in  2015  specific  data  concerning  parental 
responsibility was collected. In particular, Member States were asked to identify the overall number of 
refusals  of  recognition  or  enforcement  of  judgments  from  another  Member  State  concerning 
matrimonial  or  parental  responsibility  matters,  the  specific  grounds  which  were  invoked  to  refuse  a 
judgment as listed in Articles 22 and 23 of the Regulation and the reasons for applying these grounds. In 
case no data was collected, examples of judgments given in the respective jurisdiction which concerned 
a refusal of recognition or enforcement of a judgment from another Member State were asked for. 

External expertise 

In 2015 an expert group consisting of independent experts specialised in private international law and in 
particular international family law was set up to discuss the problems encountered with the application 
of the Regulation and to suggest concrete solutions. The group met five times in the course of 2015. The 
work of the group, reports of its activity and its members have been made public on the Commission's 
Registry of Expert Groups143. 

Expert 

143 
http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=3294&NewSearch=1&NewSe
arch=1. 

information 

(E03294), 

available 

Brussels 

group 

IIa 

at: 

87 

 
 
 
 
                                                            
ANNEX 2 - STAKEHOLDER CONSULTATION 

Brief summary of the consultation strategy/process 

In line with the Commission’s minimum standards regarding participation and openness to stakeholders' 
views  presented  in  the Better  Regulation  Guidelines144,  a  consultation  strategy  has  been  developed  to 
ensure a  wide  participation  throughout  the  policy  cycle  of this initiative  starting  from  the  preparatory 
works to the report adopted on 15 April 2014 on the application of the Regulation and concluding with 
an  informal  meeting  with  Member  States  to  discuss  the  envisaged  amendments  (October  2015).  The 
Commission  has  sought  a  wide  and  balanced  range  of  views  on  issues  covered  by  the  Regulation  by 
giving  the  opportunity  to  all  relevant  parties  (interested  individuals,  legal  practitioners,  academics, 
organisations, courts, national authorities and Member States) to express their opinions. 

The Commission organised the following consultations throughout the Impact Assessment process: 

1.  Public Consultation 

An open 3-months web-based public consultation ran from 15 April to 18 July 2015. The consultation 
was  addressed  to  the  broadest  public  possible  in  order  to  obtain  views  and  input  from  all  interested 
individuals,  legal  practitioners,  academics,  organisations,  courts,  national  authorities  and  Member 
States. The aim of this public consultation was to collect these parties' views on the functioning of the 
Regulations. The public consultation resulted in 192 responses from all categories of stakeholders from 
across the EU. 
The detailed responses to the public consultation can be consulted on the Commission's website145. 

In line with the Better Regulation Guidelines, the Inception Impact assessment (IIA) for this initiative 
was  published  on  8  October  2015  on-line  for  stakeholder  comments.  As  of  28  October  2015  no 
comments had been received. 

Main trends 

Party autonomy and rush to court in matrimonial matters 

Those  Member  States  which  responded  to  this  question  (BE,  DE,  NL,  UK,  CZ,  PT,  PL)  support  the 
introduction  of  the  possibility  for  spouses  to  choose  the  competent  court.  Also,  the  majority  of  the 
respondents  share  this  view  of  the  Member  States  and  agree  with  the  Member  States  that  certain 
limitations should be set up for the choice of court. It should be possible to choose the courts of those 
Member States where the spouses have had their habitual residence for at least a certain period of time. 
A smaller share of the respondents support that the choice of court be limited to the courts of a Member 
States of which one of the spouses is a national. Other respondents think that it should be possible to 
choose one of the courts competent under the main jurisdiction provisions of the Regulation. Among the 
Member States there are different views on which criteria should apply to the choice of court. As to the 
question whether other EU instruments should be used as a source of inspiration for the choice of court, 
the  majority  of  the  respondents  refer  to  the  'Maintenance  Regulation'.  The  'Rome  III  Regulation'  is 
mentioned  as  another  source  of  inspiration.  The  Member  States  in  particular  are  divided  on  this 
question. They either mention the 'Maintenance Regulation' or the 'Rome III Regulation'. 

The  majority  of  the  respondents  to  the  public  consultation  believe  that  the  ways  of  identifying  the 
competent court in matrimonial matters should be revised in order to reduce the risk of a 'rush to court'. 
The  majority  thinks  that  this  risk  might  be  reduced  by establishing  an order  of  priority  of  the several 

144 SWD(2015) 111. 
145 https://ec.europa.eu/eusurvey/publication/BXLIIA. An analysis is included in the Study on the assessment of Regulation 
(EC)  No  2201/2003  and  the  policy  options  for  its  amendment,  Final  Report,  Analytical  Annexes,  2015,  Annex  4.  
http://ec.europa.eu/justice/civil/files/bxl_iia_final_report_evaluation.pdf. 

88 

 
 
 
                                                            
alternative  grounds  for  jurisdiction  for  matrimonial  matters,  whereas  a  minority  of  the  respondents 
favours  the  option  of  requiring  the  other  spouse's  agreement  when  the  responsible  court  has  been 
identified  based  on  the  habitual  residence  of  the  applicant.  The  majority  of  the  answering  Member 
States, however, do not support an amendment of the jurisdiction rules to tackle the problem of the 'rush 
to court'. 

The operation of the regulation in the international legal order 

In  some  cases  the  Regulation  leaves  the  identification  of  the  court  which  has  jurisdiction  to  national 
law. A significant majority of the respondents maintain that it would be useful to introduce a  uniform 
rule  for  the  determination  of  jurisdiction  for  all  cases.  The  support  for  such  a  harmonised  rule  on 
residual  jurisdiction  is  higher  amongst  legal  practitioners146  and  private  individuals  than  among 
academics.  Of  those  Member  States  that  responded,  three  (NL,  PL,  PT)  were  in  favour  of  creating  a 
uniform rule on residual jurisdiction if no court in a Member State has jurisdiction under the Regulation 
and three against: FR and BE both denied the need for it because their national law already provides for 
residual jurisdiction based on nationality, CZ gave no reasons, and DE stated that a redraft of Articles 6 
and 7 would be sufficient and could leave the national rules on residual jurisdiction intact. The UK also 
expressed hesitations. 

The  majority  of  the  respondents  agree  that  access  to  justice  should  be  ensured  in  cases  where  the 
competent  courts  outside  the  EU  cannot  exercise  their  jurisdiction.  The  introduction  of  a  forum 
necessitatis  rule  is  supported  by  the  majority  of  the  legal  practitioners.  Of  those  Member  States  that 
responded, five (CZ, DE, NL, PL, PT) were in favour of creating a forum necessitatis and two against 
(FR  and  BE  who  both  denied  the  need  for  it  because  their  national  law  already  provides  for  a  forum 
necessitatis  based  on  nationality).  The  support  among  private  individuals  and  academics  is  slightly 
smaller  than  among  legal  practitioners.  Respondents  reiterate  that  justice  and  human  rights  should  be 
ensured in all circumstances. Some respondents think that the rule on the forum necessitatis should only 
apply to parties with a sufficient connection with the Member State where they seek to bring their case. 

On  parallel  proceedings  in  a  non-Member  State,  the  majority  of  the  respondents  think  that  the 
Regulation should include a provision to prevent lis pendens before the courts of a Member State and 
the courts of a non-Member State. The Regulation should address its own relation with bilateral treaties 
adopted  with  third  States  and  provide  a  mechanism  for  the  courts  of  the  Member  States  to  take  into 
account proceedings pending before the courts of third States between the same parties and concerning 
the same issue. The Member States are divided on the introduction of a lis pendens rule for proceedings 
pending in non-EU-countries. 

The return procedure in cases of parental child abduction 

The majority of the respondents, including the Member States, think that the Regulation has not ensured 
the  immediate  return  of  the  child  within  the  EU.  The  responses  from  private  individuals  and  legal 
practitioners are quite different. Whereas private individuals argue that the Regulation has not ensured 
immediate  return,  legal  practitioners  were  divided  which  is  particularly  the  case  for  lawyers. 
Respondents  believe,  respectively,  that  the  best  way  to  improve  the  return  procedure  is  to  introduce 
"automatic enforcement  of  judgments"  (without  explaining,  though,  what  they  meant  by  this),  stricter 
time-frame  compliance  and  sanctions  for  non-compliance.  Some  respondents  consider  that  the  issue 
should  be  dealt  with  under  criminal  law  and  a  number  of  respondents  believe  that  the  police  should 
intervene  and  cooperate  in  the  proceedings.  Addressing  the  problem  of  delays  featured  in  the 
contributions from all Member States who responded to the public consultation. BE suggests that it may 
be  appropriate  to  regulate  the  return  procedures  more  strictly  by  limiting  the  number  of  hearings, 
opportunities for appeal, and by setting common minimum standards for enforcement procedures. The 
United  Kingdom  notes  the  difficulties,  in  practice,  with  adhering  to  the  six-week  time  limit,  but 

146  Legal  professionals  includes  the  following  categories:  ‘Judge’,  ‘Lawyer’,  ‘Notary’,  ‘Other  Legal  Practitioner’,  ‘Court 
Staff Member’. 

89 

 
 
                                                            
concludes that it is unlikely that a different period of time would make a significant difference to the 
operation of the procedure and that priority should be given to improving the operation of the existing 
provisions. 

Placement of the child in another Member State 

The majority of the respondents, including the Member States, believe that the rules on the placement of 
a  child  in  another  Member  State  do  not  function  well.  Among  the  practitioners  a  slightly  greater 
percentage  regards  the  rules  as  functioning  satisfactorily.  In  contrast,  a  large  majority  of  private 
individuals regard the rules as functioning unsatisfactorily. The respondents make different suggestions 
on how the rules could be improved. However, in these responses no clear trend can be observed. 

Recognition and enforcement of judgments 

The  majority  of  the  respondents  are  in  favour  of  a  free  circulation  of  all  judgments,  authentic 
instruments  and  agreements  concerning  parental  responsibility  between  the  Member  States  without 
exequatur.  In  case  of  a  complete  abolition  of  exequatur,  it  was  recommended  that  a  number  of 
safeguards  be  put  in  place.  Of  those  who  do  not  agree,  only  a  few  respondents  think  that  exequatur 
should just be abolished for judgments concerning the placement of a child in institutional care or with a 
foster family in another Member State. Private individuals are the most prominent group in favour of 
expanding the abolition of exequatur, followed by judges and lawyers. Academics have mixed views, 
with an equal share of responses for each position. A slight majority of the Member States are against a 
full abolition of exequatur. The respondents stress particularly the importance of safeguards concerning 
the right of the child to be heard, the right to be heard in general and the proper service of documents. 

The  hearing  of  the  child  is  a  particular  problem  in  the  context  of  recognition  and  enforcement.  The 
majority  of the respondents think that common minimum standards for the hearing  of the child could 
help to resolve these problems. The support for developing common minimum standards is the biggest 
among  legal  practitioners  followed  by  private  individuals.  Academics  and  Member  States  are  more 
divided. The main problem is that there are different standards across Member States for determining 
the  suitable  age  or  capacity  of  the  child  to  be  heard.  Divergences  are  also  observed  in  the  modes  of 
hearing the child, i.e. who hears the child and where and whether this occurs with the parents present or 
not. 

As  to  the  actual  enforcement  of  decisions  on  parental  responsibility,  the  majority  of  the  respondents 
agree  that  this  is  an  important  area  for  improvement.  The  majority  of  legal  practitioners  think  that 
enforcement  needs  to  be  improved.  In  particular  lawyers  hold  that  there  is  need  for  improvement 
whereas  judges  are  more  divided.  The  main  suggestion  concerns  the  adoption  of  common  minimum 
standards  including  uniform  enforcement  procedures.  Member  States  are  divided  on  the  adoption  of 
common  minimum  standards  for  the  enforcement  procedure.  Other  suggestions  of  the  respondents 
include  a  new  Regulation  on  enforcement,  harmonisation  of  national  laws,  increased  communication 
and specialised bodies and instruments to increase the efficiency of enforcing decisions. 

The majority of the respondents state that it is important to improve the  actual enforcement of return 
orders.  Among  the  practitioners,  judges  were  divided,  whereas  the  majority  of  lawyers  favour 
improvements.  Sanctions  for  non-compliance  are  suggested  for  improving  the  actual  enforcement  of 
return  orders.  Other  suggestions  include  increased  cooperation,  common  standards  and  procedures, 
improved  communication  methods  and  a  specialised  tool  or  instrument  for  enforcement  of  decisions. 
All  Member  States  agreed  on  the  importance  of  improving  the  actual  enforcement  of  return  orders. 
However, there are diverging opinions on the ways to improvement. 

Cooperation between Central Authorities 

A  small  majority  of  the  respondents  think  that  the  cooperation  between  Central  Authorities  does  not 
function well. However, the answers are mixed among the different categories of respondents. Of the 
few  Central  Authority  staff  members  who  responded  the  vast  majority  believes  that  the  cooperation 
between  Central  Authorities  functions  well,  whereas  the  majority  of  private  individuals  think  the 
opposite. 

90 

 
 
The  main  problem  identified  in  relation  to  the  cooperation  between  Central  Authorities  is  a  lack  of 
cooperation  and  communication.  Reasons  mentioned  for  the  missing  cooperation  are  excessive 
procedural formalities, distrust and slow transfer of information. However, there are diverging opinions 
regarding  the  measures  to  be  taken.  Another  problem  mentioned  is  that  the  Central  Authorities  are 
allegedly  not  always  be  aware  of  the  existence  of  the  Regulation  or  would  be  unfamiliar  with  its 
application. 

The majority of the respondents support the use of forms as a mean to improve the cooperation between 
the Member States. Also a slight majority of Member States favour the use of translated forms. 

A slight majority of the respondents indicate that it would be useful to add a provision encouraging the 
use of mediation. A large majority of private individuals share this view. In contrast, a slight majority of 
legal  practitioners  do  not  think  that  an  additional  provision  to  enhance  the  use  mediation  should  be 
introduced. 

In connection with the placement of a child in another Member State the Central Authorities have the 
obligation  to  provide  information  and  assistance  as  needed  by  the  courts.  The  majority  of  the 
respondents indicate that there is a need for improvement in this field. Legal practitioners are divided, 
contrary  to  the  private  individuals  who  largely  see  a  need  for  improvement.  As  methods  of 
improvement  more  efficient  use  of  IT  tools  and  improved  communication  between  authorities  are 
suggested. 

The majority of the respondents do not believe that the cooperation between Central Authorities and the 
local  child  welfare  system  works  as  well  as  it  should  in  order  to  ensure  the  smooth  operation  of  the 
regulation. Legal practitioners are relatively divided in this area, in contrast to private individuals who 
think largely that cooperation does not function as well as it should. From the few Central Authorities 
that  replied  a  small  majority  considers  that  the  cooperation  with  local  child  welfare  system  functions 
well.  The  respondents  mention  lack  of  knowledge  and  unclear  responsibilities  as  reasons  for 
unsatisfactory  cooperation  between  the  Central  Authorities  and  the  local  child  welfare  system.  The 
respondents  support  preponderantly  adaptions  to  the  cooperation  between  the  Central  Authorities  and 
the  local  child  welfare  authorities.  Although  legal  practitioners  are  relatively  divided  on  the  overall 
functioning of the cooperation between these authorities, it was indicated by a clear majority of them 
that there is a need to adapt the cooperation practices to take better account of cross border cases. Even 
more  private  individuals  believe  that  cooperation  between  the  Central  Authorities  and  the  local  child 
welfare  authorities  should  be  adapted  to  take  better  account  of  cross  border  cases.  Half  of  the  few 
responding Central Authorities consider that there is no need for such adaptations.  

2.  Special consultations targeting the Member States 

An informal meeting with the Member States was held on 12 October 2015. The discussion focused on 
jurisdiction  in  matrimonial  matters,  the  abolition  of  exequatur,  the  return  of  the  child  procedure, 
cooperation between the Central Authorities and the placement of the child in another Member State. 

Main trends  

Party autonomy in matrimonial matters 

The Member States considered as useful the possible introduction of a choice of court for the spouses. 

The operation of the Regulation in the international legal order 

Member  States  were  sceptical  towards  the  possible  introduction  of  a  uniform  rule  on  residual 
jurisdiction.  They  voiced  some  support  for  rules  on  forum  necessitatis  and  lis  pendens  concerning 
proceedings pending outside the EU. 

The return procedure in cases of parental child abduction 

There was agreement among the Member States (SK, DE, HU, AT, CZ, ES, FR) that the current system 
has to be improved. The Member States support different measures to improve the functioning of the 

91 

 
 
return  procedure.  There  is  a  large  consensus  that  mediation  should  be  facilitated  during  the  return 
procedure. 

Placement of the child in another Member State 

The discussion confirmed the findings of the public consultation that the rules on the placement of child 
in  another  Member  States  need  to  be  improved.  There  was  agreement  that  the  rules  needed  to  be 
clarified by adding requirements for the request for consent. The proposal to presume consent in case of 
silence  was  rejected  by  Member  States  while  the  proposal  to  introduce  a  time-limit  for  the  requested 
States was expressly supported by some whereas others remained silent. 

Recognition and enforcement of judgments 

In  accordance  with  the  replies  of  the  Member  States  in  the  public  consultation,  most  Member  States 
(AT, SK, HU, IE, UK, LI, ES, FI and FR) stressed the need for a safeguard mechanism if exequatur was 
abolished  in  all  cases.  Some  Member  States  (DE,  LV  and  IT)  spoke  against  the  introduction  of 
minimum  standards,  such  as  age  limits  for  the  hearing  of  the  child.  Some  Member  States  support  an 
alternative solution,  being the mutual recognition of the Member States' rules  and practices regarding 
the hearing of the child. 

On  the  enforcement  of  parental  responsibility  decisions,  in  particular  return  orders,  the  results  of  the 
public  consultation  as  regards  the  Member  States  were  confirmed  in  the  informal  meeting.  While 
Member States (UK, FR and IT) acknowledge that there is a need for improvement, many of them (SK, 
UK,  SE,  LV,  LT,  ES  and  FI)  are  reluctant  to  tackle  the  problem  by  a  harmonisation  of  the  actual 
enforcement rules. 

Cooperation between national authorities 

Several  Member  States  (FR,  SE,  DE,  HR,  SK,  ES)  supported  a  clarification  of  the  rules  on  the 
cooperation between Central Authorities and the introduction of rules on the cooperation between the 
Central Authorities and welfare authorities. 

92 

 
 
 
 
 
Annex 3 

Study on the assessment of 
Regulation (EC) No 2201/2003 and 
the policy options for its amendment 

May 2015 

FINAL REPORT 
Evaluation 
A study prepared for the  
European Commission DG Justice  
This study was carried out for the European Commission by: 
Deloitte and Coffey 

Acknowledgements 

This assignment was conducted by a team from Deloitte, headed by  
Luc Chalsège with the support of Éva Kamarás, Katarina Bartz, Anna Siede,  
Florian Linz, Charlotte Dekempeneer, Lionel Kapff, Nicolas Moalic and the external 
expert prof. Rainer Hausmann.  

93 

 
 
 
 
 
 
 Table of Contents 

INTRODUCTION TO THE REPORT 

96 

OBJECTIVES AND SCOPE OF THE EVALUATION AND THE IMPACT 

1 

2 

ASSESSMENT STUDY 

97 

2.1 

Objectives of the Evaluation and the Impact Assessment Study 

97 

2.2 

Scope of the Study 

97 

3 

EVALUATION OF THE BRUSSELS IIA REGULATION 

99 

3.1 

Relevance 

99 

3.1.1 

Evolution of the initial problem .................................................................................................... 100 

3.1.2 

The relevance of the scope of the Regulation in view of the current needs or problems faced by 

EU citizens 101 

3.2 

Coherence 

105 

3.2.1 

Delineation of scope with other EU instruments .......................................................................... 105 

3.2.2 

Interrelationships between the Regulation and relevant Conventions ........................................ 108 

3.2.3 

Interrelationship with the Nordic Convention .............................................................................. 113 

3.3 

Effectiveness 

114 

3.3.1 

Achievement of the specific objectives ......................................................................................... 116 

3.3.2 

Achievement of the general objectives ......................................................................................... 146 

3.3.3 

Challenges and additional measures affecting the application of the Brussels IIa Regulation in the 

Member States ............................................................................................................................................... 147 

3.4 

Efficiency 

151 

3.4.1 

Effects of the Brussels IIa Regulation on the additional costs of the cross-border cases covered by 

the Regulation compared to domestic proceedings ....................................................................................... 151 

3.4.2 

Costs of the Regulation ................................................................................................................. 151 

3.4.3 

Could the same effects have been achieved at lower costs?........................................................ 153 

3.4.4 

Possible simplification of the Regulation ...................................................................................... 154 

3.5 

EU added value and utility 

155 

3.5.1 

EU added value ............................................................................................................................. 155 

94 | P a g e  

 
 
3.5.2 

Utility ............................................................................................................................................. 155 

3.6 

Main conclusions of the evaluation 

156 

3.6.1 

Relevance ...................................................................................................................................... 156 

3.6.2 

Coherence ..................................................................................................................................... 156 

3.6.3 

Effectiveness ................................................................................................................................. 157 

3.6.4 

Efficiency ....................................................................................................................................... 160 

3.6.5 

EU added value and utility ............................................................................................................ 161 

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Table of Tables 

Table 1: Specific objectives and their shortened denominations ....................................................... 116 

Table 2: Links between specific objectives, operational objectives and identified high priority issues118 

Table  3:  High-priority  legal  issues  under  specific  objective  1  “Access  to  court  for  citizens  in 

international families with a close connection to the EU” .................................................................. 122 

Table 4: High-priority legal issues under specific objective 2 “Predictability, clarity, and reliability for 

citizens involved in cross-border cases”.............................................................................................. 125 

Table 5: High-priority legal issues under specific objective 3 “Smooth recognition and enforcement of 

judgments, authentic instruments and agreements” ......................................................................... 129 

Table 6: High-priority legal issues under specific objective 4 “Protection of the economically weaker 

spouse” ................................................................................................................................................ 132 

Table 7: High-priority legal issues under specific objective 5 “Well-being of the child and parent-child 

relationship” ........................................................................................................................................ 136 

Table of Figures 

Figure 1: Objectives tree – Matrimonial matters and parental responsibility .................................... 115 

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1 Introduction to the report 

The present report constitutes the Final Report of the “Study on the assessment of Regulation (EC) 
No 2201/2003 (‘Brussels IIa’ Regulation) and the policy options for its amendment”, carried out by 
Deloitte on behalf of the European Commission, Directorate-General for Justice.  

It presents the completed Evaluation of the Brussels IIa Regulation, which looks into the Relevance, 
Coherence, Effectiveness, Efficiency, as well as EU added value and utility of this instrument. The 
assessment of Effectiveness in the main body of the report is conducted at the level of the specific 
and general objectives. A more detailed analysis of this evaluation criterion, at the level of the 
operational objectives, is presented in the separate volume of Analytical annexes. 

The Impact Assessment on the Regulation, which was conducted within the framework of the same 
assignment, and was based on this Evaluation, is provided in another separate volume.  

The present Evaluation report’s structure is the following: 

  Chapter 2: Objectives and scope of the Evaluation and the Impact Assessment Study; 
  Chapter 3: Evaluation of the Brussels IIa Regulation. 

The following annexes are presented in a separate volume:  

Analytical annexes 

  Annex 1:  Analysis  of the  effectiveness of the Brussels IIa Regulation at the level of 

the operational objectives; 

  Annex 2: Context of the Brussels IIa Regulation; 
  Annex 3: Contextual factors and unsubstantiated issues; 
  Annex 4: Analysis of the public consultation; 
  Annex 5: Assessment of the impacts of options proposed for non-priority legal issues; 
  Annex 6: Quantitative analysis; 
  Annex 7: Compliance costs and stress. 

Methodological annexes 

  Annex  8:  Main  elements  of  the  methodology  for  the  Evaluation  and  Impact 

Assessment of the Brussels IIa Regulation; 

  Annex  9:  Potential  modifications  to  the  Regulation  to  address  non-prioritised  legal 

issues; 

  Annex 10: Assumptions and formulas used for the hypothetical cases; 
  Annex 11: Data concerning the application of the Brussels IIa Regulation. 

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2 Objectives and scope of the Evaluation 

and the Impact Assessment Study 

This  chapter  presents  the  objectives  and  scope  of  the  Evaluation  and  Impact  Assessment 
Study of the Brussels IIa Regulation. 

2.1  Objectives of the Evaluation and the Impact Assessment Study 

In line with the Terms of Reference (ToR), the objectives of the study were to carry out an evaluation 
and impact assessment study of the application of the Brussels IIa Regulation.  

The main objectives of the study were thus: 

  To evaluate the application of the Brussels IIa Regulation.  

The study evaluates the Brussels IIa Regulation as it is in force today. In particular, it 
examines the relevance, coherence, effectiveness, efficiency, EU added value and utility of 
the Regulation as it exists today. 

  To identify and assess practical problems encountered by citizens, courts and practitioners, as 

well as the impacts of identified policy options to address the problems.  
The study identifies and assesses the problems currently experienced by citizens, courts and 
practitioners. Based on the problem assessment and taking account of the findings of the 
evaluation of the Regulation, various policy options are developed with a view to addressing 
the problems identified. Legislative as well as non-legislative actions are considered. The 
impacts of the different policy options for the future of the Regulation is assessed relative to 
the status quo, based on a common set of assessment criteria, in compliance with the 
Commission’s Impact Assessment Guidelines. The preferred option is identified based on a 
comparison of the options. 

2.2  Scope of the Study 

The scope of the study was largely determined by the scope of the Brussels IIa Regulation. This said, 
certain aspects that are not covered by the Regulation, such as standards in relation to parental 
responsibility decisions, were relevant for examination. This was in line with the ToR. 

The Regulation establishes provisions concerning judicial cooperation in civil matters having cross-
border implications. Within this framework, the material scope of the study is: 

  Civil matters relating to the breaking of marriage links in terms of divorce, legal separation 

and marriage annulment (matrimonial matters); and 

  Civil  matters  relating  to  the  attribution,  exercise,  delegation,  restriction  or  termination  of 

parental responsibility.  

The term ‘parental responsibility’ is to be understood broadly, referring to all rights and duties 
relating to the child or the property of a child. It includes rights of custody and rights of access. In 
relation to the child’s property, the Regulation is limited to protective measures that need to be 
taken with regard to that property, such as the appointment of a person or a body to assist and 
represent the child with regard to the property. 

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In terms of the provisions established by the Regulation, the following broad areas are covered: 

  The general scope of the instrument; 
  Jurisdiction  in  matrimonial  matters  (relating  to  the  breaking  of  the  marriage  link)  and  in 

matters of parental responsibility; 

  Recognition  and  enforcement  of  judgments  in  matrimonial  matters  and  in  matters  of 

parental responsibility; and 

  Cooperation between central authorities. 

The rules in applicable law concerning matrimonial matters and matters of parental responsibility are 
not analysed.  

The relationship with other legal instruments has been taken into account. 

The geographical scope of the study is all EU Member States with the exception of Denmark.  

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3 Evaluation of the Brussels IIa Regulation 

This  chapter  contains  the  evaluation  of  the  Brussels  IIa  Regulation.  The  evaluation  is 
structured  according  to  its  five  evaluation  criteria:  relevance,  coherence,  effectiveness,  and 
efficiency,  as  well  as  EU  added  value  and  utility.  The  assessment  of  effectiveness  in  this 
chapter  is  conducted  at  the  level  of  the  specific  and  general  objectives.  A  more  detailed 
analysis  of  this  evaluation  criterion  at  the  level  of  the  operational  objectives  is  presented  in 
Annex 1. 

3.1  Relevance 

This section presents the findings on the relevance of the Brussels IIa Regulation. The following 
evaluation questions guided this work, and are dealt with in turn in the next sub-sections: 

In what way has the initial problem evolved? 

  To what extent does the scope of the legislation still match the current needs or 

problems faced by EU citizens? 

Our key finding is that the number of international couples and families affected by the Regulation 
remains significant and the Regulation remains relevant in light of both this statistical evolution 
and in view of the qualitative assessment of the evolution of the initial problem.  

The Brussels IIa Regulation was adopted to address challenges faced by ‘international’ married and 
unmarried couples, and families (i.e. couples with or without children). At the time the Regulation 
was adopted this was becoming more common as a result of the growing mobility of EU citizens. 

More specifically, it was recognised at the time that when international couples want to break their 
marriage link, the spouses could face a number of practical and legal difficulties due to the 
differences in legislation across the Member States. These issues were identified as hindering the 
free movement of persons and judgments, and thus to be at odds with the goal of setting up an area 
of freedom, security and justice: 

  It was unclear which courts had jurisdiction to handle the divorce, legal separation 
or  marriage  annulment  of  international  married  couples,  as  the  competent  court  is 
determined in different ways in the Member States.  

  It was unclear which national law was to be applied to these cases.147  
  The  differences  in  determining  the  competent  court  and  conflict-of-law  rules  led  to 
issues  over  recognition  and  enforcement  of  judgments,  authentic  instruments  and 
agreements.  

  When  the  spouses  or  unmarried  couples  had  children,  issues  arose  with  regard  to 
cross-border  rights  of  access  to  children.  Further  problems  were  also  faced  in 

147  This  was  determined  by  means  of  the  conflict-of-law  rules  of  the  Member  State  where  the  action  was  filed,  using,  for 
example,  factors  such  as  nationality  or  habitual residence.  As  the  conflict-of-laws  rules are legally  very  complex and  vary 
among the Member States, the applicable law can differ depending on where the action is filed and the outcome is difficult to 
foresee.  This  could  have  serious  repercussions  given  the  vast  differences  in  substantive  law.  For  example,  the  possible 
grounds for divorce vary, and some Member States have introduced a higher threshold than others. Furthermore, not every 
Member States recognises the concepts of legal separation and annulment. 

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relation to parental responsibility, with additional complications and sensitivities e.g. 
in cases of child abduction148. 

The Brussels IIa Regulation included provisions to address all but the second problem identified 
above. The Regulation set out common jurisdiction rules, as well as provisions on the mutual 
recognition and enforcement of judgments, authentic instruments and agreements for matrimonial 
matters and matters of parental responsibility149.  

It did not establish harmonised conflict-of-law rules. This was addressed in Council Regulation (EU) 
No. 1259/2010 implementing enhanced cooperation in the area of the law applicable to divorce and 
legal separation150 (“Rome III Regulation”), which was adopted in 2010. This instrument provides a 
uniform set of rules on the law applicable to divorce and legal separation and is applicable in 15 
Member States151.  

3.1.1  Evolution of the initial problem 
High levels of mobility of citizens across Europe152 coupled with international migration are believed 
to be leading to a constant increase in the number of international couples, as well as of 
international families153, and hence substantiate the relevance of the Brussels IIa Regulation. 

The number of international divorces and legal separations has increased over the last decade and 
has been stable (with slight fluctuations) between 2008 and 2012. 
Our analysis shows that every year from 2008 to 2012, approximately 200,000 citizens in 
international marriages divorced. 

148 Which was identified as being the cause of “appalling distress to the children and parents concerned”, c.f. Commission 
press release on the 2002 proposal: “Commission proposes EU-wide recognition of family law rulings to tackle child 
abduction”, IP/02/654, Brussels, 3 May 2002, http://europa.eu/rapid/press-release_IP-02-654_en.htm?locale=en.  
149 A previous Regulation (EC) No 1347/2000 of 29 May 2000 (the 'Brussels II Regulation'), which was first EU instrument 
adopted  in  the  area  of  judicial  cooperation  in  family  law  matters,  introduced  rules  on  jurisdiction,  recognition  and 
enforcement of judgments on divorce, separation and marriage annulment as well as judgments on parental responsibility for 
the children of both spouses. In terms of jurisdiction, the amendment of the scope of the convention in Regulation (EC) No 
2201/2003 resulted in a change in the structure of Chapter II. This is now divided into three sections: the first on jurisdiction 
in  matters  relating  to  divorce,  legal  separation  and  marriage  annulment,  the  second  on  jurisdiction  in  matters  of  parental 
responsibility, and the third on provisions common to both. In terms of the recognition and enforcement of judgments, the 
inclusion of provisions on parental responsibility made it necessary to include enforcement provisions in Regulation (EC) No 
1347/2000.  This  is  why  Regulation  (EC)  No  2201/2003  has  a  Section  1  on  recognition,  a  Section  2  on  declaration  of 
enforceability and a Section 3 on common provisions.  
150 OJ L 343, 29.12.2010, p. 10–16, available at:  
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:343:0010:0016:EN:PDF.  
151 Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain. The Rome III Regulation has been applied 
in Lithuania only since 22 May 2014 (OJ L 323, 22.11.2012, p. 18). It will apply in a sixteenth Member State, Greece, from 29 July 2015 (OJ L 23, 28.1.2014, p. 41).  
152  In  2011  there  were  33.3  million  foreign  citizens  resident  in  the  EU-27,  6.6%  of  the  total  population.  There  were  48.9 
million foreign-born residents in the Union in 2011, 9.7% of the total population (Statistics in Focus, 31/2012: "Nearly two-
thirds  of  the  foreigners  living  in  EU  Member  States  are  citizens  of  countries  outside  the  EU-27",  Eurostat) 
http://ec.europa.eu/eurostat/en/web/products-statistics-in-focus/-/KS-SF-12-031.  
153 According to a 2012 Eurostat study (“Merging populations. A look at marriages with foreign-born persons in European 
countries”, Giampaolo Lanzieri), across Europe, for the period 2008-10, on average one in 12 married persons was in a mixed 
marriage. The study shows wide differences in the prevalence of mixed marriages across Europe. The range is from about 
one mixed married couple out of five in Switzerland and Latvia, to almost none in Romania. However, for most countries, 
there  is  an  increase  over  time,  while  the  geographic  distribution  suggests  a  North-West/South-East  divide,  with  some 
exceptions such as the Baltic countries. In general, countries in which immigration is a more recent phenomenon or is less 
relevant show lower values. The study is available at: bookshop.europa.eu/en/merging-populations-pbKSSF12029/. 

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While the number of children affected by international divorces decreased steadily from 2008 to 
2012 (-4%), we observe that the number of children born outside marriage and thus affected by 
parental responsibility proceedings under the Regulation has increased by 10%. 

Finally we note that an estimated 175,000 to 240,000 international families are affected by the 
Regulation. 

The modern trend in of family law is to encourage the parties to reach mutual agreement and party 
autonomy is supported.154 The Regulation currently does not seem to take this trend into account. 
This can be demonstrated inter alia by the absence of choice of court for the parties in matrimonial 
matters.155 The problem has evolved therefore because of the lack of flexibility given to parties who 
issue proceedings under the Regulation. 

The objectives of the Regulation are still relevant to the problem as it has evolved. This is 
supported by comments made by the stakeholders consulted for this study. In short, the problem as 
it has evolved consists of a larger number of international couples and issues related to the 
application of the Regulation, such as ‘forum shopping’, delays, costs and threats to the well-being 
of the child and family relationships. While the objective of the Regulation to reduce the additional 
costs of cross-border cases as compared to the costs of domestic cases is therefore still relevant, the 
potential positive effects of the Regulation, are not always achieved.  

3.1.2  The relevance of the scope of the Regulation in view of the current needs or 

problems faced by EU citizens  

In accordance with Article 2, the Brussels IIa Regulation applies to “matrimonial matters” in terms of 
measures that are related to breaking the marriage link. This includes divorce, annulment and legal 
separation. The Regulation only deals with the breakig of the marriage link, and not the actual 
conclusion of the marriage contract. Hence ‘marriage’ is not defined by the Regulation. 

It does not include any matter relating to prior circumstance or consequences, such as the grounds 
for divorce or the property consequences.156 As indicated above, the Regulation does not establish 
substantive or applicable law rules. Its scope is limited to conflict of jurisdiction, and provisions on 
free movement of judgments, authentic instruments and agreements. 

154 “The trend in recent Union instruments in civil matters is to allow for some party autonomy (see, for instance, the 2008 
Maintenance Regulation or the 2012 Successions Regulation)”, page 5 of the Commission’s Application Report (Report from 
the  Commission  to  the  European  Parliament,  the  Council  and  the  European  Economic  and  Social  Committee  on  the 
application  of  Council  Regulation  (EC)  No  2201/2003  concerning  jurisdiction  and  the  recognition  and  enforcement  of 
judgements  in  matrimonial  matters  and  the  matters  of  parental  responsibility,  repealing  Regulation  (EC)  No  1347/2000 
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52014DC0225). 
155 Indeed, before the adoption of the Brussels IIa Regulation two possible starting points were taken into consideration for 
determining jurisdiction in matrimonial matters, (and neither of them included party autonomy): either to incorporate uniform 
rules of jurisdiction in matters of  divorce, providing a limited number of alternatives without any hierarchy, or, taking the 
opposite approach, to incorporate no rules of jurisdiction but simply establish permissible grounds of jurisdiction. Article 3 of 
the  Brussels  IIa  Regulation  (Article  2  of  the  previous  Brussels  II)  followed  the  first  approach.  The  decision  to  include  a 
number of specific grounds reflected their existence in the legal order of various Member States and their acceptance by the 
other Member States. 
156 More details on the contextual factors found important for the scope of the Regulation are spelt out in Annex 3. 

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Our interviewees and national experts generally perceived the scope as being rather clear and 
appropriate. Expert panel members also regarded the scope of the Regulation for matrimonial 
matters as functioning well overall.157  

Matrimonial matters – potential coverage of same sex-marriages, registered partnerships and 

declaratory judgments  

On the issue of the coverage of same-sex marriages, interviewees and expert panel members 
highlighted that the fact that the Regulation does not specify whether or not same-sex marriages are 
covered by its scope. This means that there is currently no legal basis for same-sex couples to divorce 
if they move to a Member State where same-sex marriages are not recognised.158 

This point was brought up in the expert panel. The panel participants agreed that leaving the 
coverage of same-sex marriages undefined in the Brussels IIa Regulation allows Member States to 
apply the Brussels IIa Regulation to same-sex marriages, while not forcing them to do so (e.g. if this is 
against their public policy). Expert panel participants felt that an explicit inclusion of same-sex 
marriages within the scope of the Brussels IIa Regulation would be too politically sensitive.  

The same is broadly true of registered partnerships. As discussed in further detail in Annex 3, very 
different rights and administrative procedures apply to the dissolution of the registered partnerships 
that exist in some Member States. Nevertheless, in some Member States registered partnerships 
actually provide a status very similar to marriage, and EU citizens are increasingly entering into 
registered partnerships. This has led to uncertainty in these Member States as to whether or not 
registered partnerships should be deemed to be covered by the Regulation. Despite not explicitly 
being covered by its scope, some Member States’ courts do apply the Regulation to registered 
partnerships. 

We note that it is disputed in legal literature whether declaratory judgments159 (on the existence or 
non-existence of a marriage) are covered by the Regulation,160 or whether the material scope of the 
Regulation is restricted to proceedings aiming at an alteration of the status of the spouses.  

Based on the national expert reports we note that the issue of whether or not declaratory judgments 
are covered by the Regulation does not seem to have come up in Member States’ case law. However, 
according to our national experts, the subject itself has generated debate in several Member States, 
albeit without reaching any conclusion. Consequently, only a few of the national experts believed 
there was a need for declaratory judgments to be interpreted as covered by the Regulation. Similarly, 

157 For information on the role these groups played in arriving at our findings, please see Annex 7. 
158 More details on the issue of same-sex marriages in the context of the Regulation is spelled out in Annex 3. 
159 I.e. legal determination by a court resolving legal uncertainty for the parties, e.g. regarding the existence of the marriage. 
160 Daphne-Ariane Simotta refers to German literature and concludes – after illustrating both points of view – that 
declaratory judgments are not covered by the Brussels IIa Regulation. In: Fasching/Koneceny, Kommentar zu den 
Zivilprozessgesetzen, 2nd edition, 2010, Article 1 Brussels IIa Regulation marg. No. 9 et seq.  Furthermore, some 
commentators maintain that the Regulation should not be limited by excluding declaratory judgments if accepted in 
another Member State. Siehr goes as far as saying that recognition of these types of declaration could lead to a “necessary 
liberalisation” of marriages: Kurt Siehr in Ulrich Magnus and Peter Mankowski (eds) Brussels II bis Regulation (2012) 
European Law Publishers. Cited Dornbluth (fn. 1) pp. 60-62; Hau, FamRZ 1999, 485; id., FamRZ 2000, 1333; Gruber, FamRZ 
2000, 1130; Schack (fn.1) p. 620; Vogel, MDR 2000, 1046; contra Helms (fn. 3) p. 259; Spellenberg, (fn. 1) pp. 125-126; ei., 
in: Festschrift Ekkehard Schumann (2001) p. 99. 

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most interviewees considered this issue to be of minor importance. (It was estimated that these 
judgments are seen in less than 1% of cases). 

Parental responsibility – Coverage of children in all civil matters, grandparents, definition of 

"child" and custody rights 

Under the Regulation, the term ‘parental responsibility’ is to be understood broadly, referring to all 
rights and duties relating to the child or the property of said child161. It includes rights of custody and 
rights of access.162 

Interviewees and expert panel participants generally considered the scope of the Regulation in 
matters of parental responsibility to be rather clear and appropriate.  There were comments, in 
particular, that the inclusion of children in relation to all civil matters and not only children of 
divorcing parents as previously was a “much needed” expansion of the law163. Overall the Regulation 
is perceived to be responding rather well to the needs of holders of parental responsibility. 164 
However, some issues were identified that are currently not covered or not clearly specified in the 
Brussels IIa Regulation.  

Two issues were identified relating to the scope of the concept of ‘parental responsibility’. First, a 
number of national experts (AT, BE, CZ, IE, IT, FI, LU, NL, PL, RO) pointed to cases where courts had 
difficulties in deciding whether specific situations would be covered by the term ‘parental 
responsibility’ (e.g. it was not clear, whether issues of grandparent’s contacts with grandchildren 
were covered).  

Second is the absence of definition of the term ‘child’ in the Regulation. Ambiguities arise across the 
Member States in identification of who is to be considered a “child” under the Regulation. Since the 
definition of the term ‘child’ differs across the Member States, as well as in third countries,165 this 
may result in legal uncertainty166 and may affect the well-being of the child. 

Finally, two members of the expert panel raised some issues in relation to two other concepts – 
custody rights and access rights, on the one hand, and parenthood recognition, on the other. One 

161 Concerning the child’s property, the Regulation is limited to protective measures that need to be taken with regard to the 
child’s property, such as the appointment of a person or a body to assist and represent the child with regard to the property. In 
contrast, other measures that relate to the child’s property, not concerning the protection of the child, are not covered by the 
Regulation, but by Council Regulation No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and 
enforcement of judgments in civil and commercial matters (“the Brussels I Regulation”). In this context, we draw attention to 
the Regulation on mutual recognition of protection measures in civil matters adopted in 2013 Regulation (EU) No 606/2013. 
162 In this regard, it is worth nothing that the repealed Brussels II Regulation only applied to matters of parental responsibility 
when they were raised in matrimonial proceedings. Under Brussels IIa, the scope was extended to all matters relating to 
parental responsibility, regardless of whether or not the parents are/were married and regardless of whether both are the 
biological parents. 
163 c.f. http://www.familylawweek.co.uk/site.aspx?i=ed347: Peter Stone perceived this as “the most important advance made 
by the Brussels IIa Regulation” in EU Private International Law: Harmonization of Laws (2006) Edward Elgar Publishing p. 
404. 
164  The  analysis  of  the  public  consultation  found  that  the  majority  of  respondents  (66%-78%)  regard  the  Regulation  as 
“helpful”  in  matters  concerning  parental  responsibility.  See  Q6-Q8  of  analysis  in  Annex  “Analysis  of  the  European 
Commission’s public consultation”. 
165 From a comparison of national laws, it was noted that not all Member States have a definition of “child”. Where this is not 
the case, usually the age eighteen is crucial in determining whether a person is to be considered a child (or a minor) or not. 
However,  there  are  differences  as  regards  the  possibility  of  being  considered  an  adult  earlier  than  that.  For  an  overall 
treatment of this issue, see: “Different interpretations of the term “child” across the Member States”, Annex 3. 
166 Peter Stone regards the omission of an indication as to the ages at which a person ceases to be a child “very regrettable” in 
EU Private International Law: Harmonization of Laws (2006) Edward Elgar Publishing p. 405. 

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expert stated that the terms custody rights and access rights in the Brussels IIa Regulation stem from 
the Hague Convention on the Civil Aspects of International Child Abduction, but are not clearly 
defined in the Brussels IIa Regulation. This has led to difficulties due to the fact that the 
understanding of these concepts varies across the Member States, causing legal uncertainty. Another 
expert noted that the issue of parenthood recognition is closely related to the Brussels IIa 
Regulation, but dealt with by the jurisdiction rules of other instruments. The expert stressed that 
while recognition of parenthood is already excluded from the scope of the Brussels IIa Regulation, 
the Regulation does not sufficiently highlight the fact of the exclusion, thus creating confusion.  

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3.2  Coherence 

This section presents the findings on the coherence of the Brussels IIa Regulation with other EU 
policy objectives in the area of judicial cooperation in civil matters.  

The following sub-sections present the findings related to the assessment of the coherence of the 
Brussels IIa Regulation with other EU policy objectives. The analysis was based on the following 
indicators: 

  Extent to which there are practical difficulties in relation to delineation of scope with 

other EU instruments;  

  Extent to which there are overlaps in scope in combination with conflicting provisions 
between  the  Regulation  and  the  1980  Hague  Convention  on  the  Civil  Aspects  of 
International  Child  Abduction  and  the  1996  Hague  Convention  on  the  International 
Protection of Children; and 

  Extent to which there are practical difficulties in relation to the interrelationship with 

the Nordic Convention of 6 February 1931 on private law. 

3.2.1  Delineation of scope with other EU instruments 

Our analysis shows that the multitude, complexity and interrelationship of Union instruments in 
family law (e.g. the Brussels IIa Regulation, the Maintenance Regulation (4/2009), the Brussels I 
Recast Regulation (1215/2012), the Rome III Regulation (1259/2010), etc.) have led to practical 
difficulties, such as the lack of understanding on the part of citizens and practitioners, or confusion 
on the extent of jurisdiction of the competent court pursuant to the Brussels IIa Regulation on the 
part of the parties.  

There are a number of EU instruments in the field of judicial cooperation in civil matters, which are 
closely related to the Brussels IIa Regulation (e.g. the Maintenance Regulation, the Rome III 
Regulation, Brussels I Recast Regulation). While most national experts did not identify any practical 
difficulties in relation to the delineation of the scope of the Brussels IIa Regulation with other Union 
instruments, our national experts for DE, FI, HR, IT, LU, LT and PL pointed to general problems related 
to the multitude and complexity of EU instruments in family law – in particular when combined 
with domestic law, bilateral agreements and multilateral conventions. Several interviewees also 
described the relationship with other regulations in the area of judicial cooperation in civil matters as 
problematic.  

In addition, most of our expert panel participants also agreed that the multitude and complexity is 
creating practical problems for citizens and legal practitioners – such as non-use due to a lack of 
knowledge, misinterpretations and additional costs for specialised legal advice. 

Furthermore, we note the absence of clear practical guidance for practitioners on the 
interrelationship of the Brussels IIa Regulation, the Maintenance Regulation, and the Rome III 
Regulation. This results in problems for practitioners and citizens in understanding these three 
instruments well and quickly. Overall, several of our interviewees and respondents to the public 
consultation concluded that as more and more Regulations enter into force, it becomes more and 
more difficult for practitioners and citizens to understand the system of EU civil procedure. This not 
only results in them incurring extra costs, but it causes frustration for the parties that (in absence of a 

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single procedure) divorce is not necessarily dealt with the same way (i.e. by the same court, within 
the same procedure) as the other procedures they regard as integral part or consequence of their 
divorce (i.e. parental responsibility, maintenance (of spouse and child), matrimonial property 
consequences).  

Similarly, expert panel members argued that citizens want family law issues to be solved in “one 
package” (approaching one single lawyer and one single court in one single proceeding), but that the 
multitude and non-harmonisation of Union instruments makes this impossible. In line with this 
argumentation, our national expert for Luxembourg indicated that the parties generally (wrongly) 
assume that the court with jurisdiction over matrimonial matters also has jurisdiction over 
maintenance obligations. Luxembourg courts have pointed out that there is a fragmentation of 
jurisdiction and that the court which has jurisdiction over matrimonial matters pursuant to the 
Brussels IIa Regulation does not necessarily have jurisdiction over maintenance obligations.167  

The delineation of scope also seems to be problematic in matters of recognition and enforcement.  

Case example: Interrelationship of Brussels IIa Regulation with other Union instruments (Luxembourg) 
In a case from 2009, a judgment on maintenance obligations was declared enforceable pursuant to the 1973 
Hague Convention on the Recognition and Enforcement of Decisions relating to Maintenance Obligations.168 
The respondent lodged an appeal against the decision and raised several grounds for non-recognition on the 
basis of multiple instruments, including the Brussels I Regulation (44/2001), the Brussels IIa Regulation and 
the 1973 Hague Convention on the Recognition and Enforcement of Decisions.  
The Luxembourg Court of Appeal stated that it was ‘inconceivable’ that the foreign decision had to fulfil the 
requirements of several instruments cumulatively in order to be recognised. Firstly, the court ruled that 
maintenance obligations were excluded from the scope of the Brussels IIa Regulation pursuant to Article 1 
para 3 lit. e). Therefore, the decision was not subject to the grounds of non-recognition established by the 
Brussels IIa Regulation. Secondly, the Court stated that the 1973 Hague Convention prevailed over the 
Brussels I Regulation. The national expert for Luxembourg concluded that this decision shows that the 
multiplicity of EU instruments in the field of family matters is causing difficulties for parties. 
The interplay between the Brussels IIa Regulation and the Maintenance Regulation is not fully 
understood by practitioners. In particular, uncertainties were reported relating to the application of 
the system of certificates contained in the Brussels IIa Regulation in relation to those in the 
Maintenance Regulation. The Maintenance Regulation refers to grounds of grounds of jurisdiction 
that are based on the Brussels IIa Regulation. Therefore, proceedings related to custody and to 
maintenance should generally be handled by the same court.169 However, in some cases, court 
officials were not sure which certificates to use in cases in which both the Maintenance Regulation 
and the Brussels IIa Regulation play a role. In Estonia, court officials are advised to use partial 
certificates. They use the Brussels IIa certificates for custody cases and the Maintenance Regulation 
certificates for maintenance obligations. This system works, but it needs clarification. 

The interplay with the Maintenance Regulation also seems to be problematic in relation to the 
residual jurisdictional basis of sole domicile or nationality (i.e. Article 3(1)b). Although residual 
jurisdiction may be used for a divorce, it is not available for maintenance and therefore is rarely used 
by an applicant for maintenance.  

167 Tribunal d’arrondissement de Luxembourg, 17 June 2008, case no 11341’ and 113949 
168 Cour d’appel, 30 April 2009, case no 32999; Cour d’appel, 11 March 2010, case no 34352 
169 In Estonia, divorce matters, custody matters, and maintenance matters can all be dealt with in one proceeding. 

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Case example: Interplay between the Brussels II and the Maintenance Regulations (Ireland) 

Our Irish national expert highlighted that in O’K v A [2008] 4 IR 801, the High Court observed that 
“[i]n our law judicial separation is inextricably linked to “proper provision” for dependant [sic] 
children and divorce under Article 41 of the Constitution is also inextricably linked to “proper 
provision”. It is difficult to envisage how these matters can be properly separated.” It is therefore 
notable that Buckley (2012) has observed that since the enactment of the Maintenance 
Regulation170, “[t]he fact that different aspects of the same relationship may be dealt with in 
different jurisdictions, or under the law of different Member States, increases rather than decreases 
confusion. The separation of marital status from marital property claims is not suited to a regime 
such as Ireland's, where divorce is dependent on a particular standard of provision. Furthermore, the 
separation of support and property issues appears highly artificial in the Irish context, given that Irish 
legislation makes no such distinction and seeks only an overall fair or “proper” outcome. Such an 
outcome will often depend on trading off various aspects of provision against one another171—for 
instance, claims for spousal support or a share in pension rights or in the family business might be 
exchanged for an additional share of the family home or other property. This type of trade-off may 
prove highly dangerous under the new jurisdictional rules, as the court ruling on one aspect of 
provision may have no overview or understanding of what has been determined elsewhere. Indeed, 
under the relevant applicable law, such intended exchanges may be entirely irrelevant to the case at 
issue. This in turn undermines the overall standard of provision.” 

A Slovakian interviewee highlighted the issue that the Maintenance Regulation grants the same court 
jurisdiction that has jurisdiction in matters of parental responsibility. It is possible that a court has 
jurisdiction under Article 12 of the Brussels IIa Regulation, but not under the Maintenance 
Regulation. This would arise in cases where Article 12(1) does not apply. Under the Brussels IIa 
Regulation, the court could in that case only decide on matters of divorce. Under Slovak law, matters 
relating to breaking the marriage link, maintenance and parental responsibility have to be decided in 
one proceeding. However, according to the Slovakian interviewee, as Article 12(1) prohibits 
jurisdiction in matters of parental responsibility, this is not possible. The interviewee stressed that in 
the Slovak judicial system, the concept of forum non conveniens does not exist, so as the courts have 
to exercise jurisdiction. This has led to confusion in the past.  

According to a German interviewee, there is a need to allow couples that are not married to decide 
on prorogation of jurisdiction in accordance with Article 12 in cases where maintenance proceedings 
are on-going.  

Our national expert for Germany pointed to difficulties in relation to the delineation of scope 
between the Brussels IIa Regulation and Regulation (EU) No. 606/2013 on the recognition of 
protective measures in civil matters in relation to provisional measures under Article 20 of Brussels 
IIa.. He stated that as Article 20 has priority over protection measures adopted under Regulation No. 
606/2013 (see Article 2 para 3 of that Regulation), there is a lack of clarification with regard to the 
type of measures that could be ordered provisionally under Article 20 in matrimonial matters. 

170 Emphasis added. 
171 Emphasis added.  

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Other procedures stemming from a divorce (maintenance, property consequences etc.) do not 
require a declaration of enforceability. Interviewees reported that maintaining this procedure for 
Brussels IIa does not make sense for citizens and hence creates frustration for them. A specialised 
French lawyer and some respondents to the public consultation172 highlighted the problem that the 
rules on jurisdiction are not harmonised across Union instruments in family law (Brussels IIa, Rome 
III, Maintenance Regulation, etc.) The current situation with different criteria for determining 
jurisdiction is creating unnecessary complexity and often requires ad hoc solutions in practice. 
Similarly, a Spanish judge noted that habitual residence is used as the main criterion for jurisdiction 
under Rome III and the Maintenance Regulation, while the Brussels IIa Regulation provides a number 
of specific alternative (rather than hierarchical) grounds to determine jurisdiction in matrimonial 
matters (Article 3), and a general jurisdiction rule based on the habitual residence of the child (Article 
8) for matters of parental responsibility.  

Some interviewees indicated that the fact that the choice of court is not possible under the Brussels 
IIa Regulation is inconsistent with other EU instruments. A Bulgarian interviewee indicated in 
particular the inconsistency of there being are possibilities for choosing the court in other situations, 
but not for divorce. Indeed, 85% of the respondents to the public consultation173 complained that the 
Regulation does not include the possibility for spouses to choose the court responsible by common 
agreement. 

The national expert for Croatia noted that many judges in Croatia are not sufficiently trained in 
differentiating the sectoral scope of application of the various Union instruments. He explained 
that all the judges finished law school at a time when EU law was not part of the curricula.  

3.2.2  Interrelationships between the Regulation and relevant Conventions 

Despite the rules laid down in Article 60 on relations with certain multilateral conventions, the 
interrelationship of the Brussels IIa Regulation with international conventions and bilateral 
agreements appears still to be very complex. In some cases it is not fully clear for practitioners 
which instrument applies and there are conflicting provisions/interpretations, which are 
hampering the practical operation of the Brussels IIa Regulation. 

While Article 59 provides for general guidance on the relationship with other instruments, Article 60 
specifies that the Brussels IIa Regulation shall take precedence in relation to the specific Conventions 
it lists. 

It has been argued that – despite the rules laid down in Article 60 – it is in some cases not fully clear 
which instrument to apply174. Indeed, the national experts of BG, DE, ES, HR, IE, IT, LU, LT and SE 
reported some lack of clarity, conflicting provisions or practical difficulties in relation to the 
interrelationship of the Brussels IIa Regulation and other instruments in their countries. 

172  This  point  is  referred  to  with  the  general  term  “some”  due  to  the  fact  that  it  cannot  be  accurately  quantified.  It  was 
repeated on a general level across the body of responses to different open questions of the public consultation. 
173 i.e. 139 of 163 respondents. 
174 Dieter Martinv notes that conflicts and difficult questions of competence have arisen with the Hague Conventions. See ‘Is 
Unification of Family Law Feasible or even Desirable?’ in: Towards a European civil code, (2011), p. 429-458 

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An  issue  relating  to  the  1961  Hague  Convention  on  the  protection  of  minors  was,  for  example, 
reported by the national expert for Germany. According to Article 60(a) the Regulation has priority 
over the Hague Convention on the protection of minors, but only “between the Member States”. The 
interpretation  of  this  rule  is  controversial  in  German  legal  literature  if  the  Contracting  State  of  the 
Hague Convention involved is not an EU Member State.175 The problem is particularly relevant in the 
relationship between Germany and Turkey.  
In  this  regard,  the  French  expert  pointed  out  that  the  Convention  might  be  applicable  under  a 
residual competence rule under Article 14 of the Brussels IIa Regulation if third states are involved. 
However, there was also one case where the courts used the Convention as a basis for jurisdiction 
although the habitual residence of the child was in France.  
Furthermore, the national expert for Luxembourg concluded that five cases from 2013176 
demonstrate that given the fragmentation of the private international law rules in different 
instruments, Luxembourg courts had to apply Portuguese law to the divorce and Luxembourg law to 
parental responsibility matters. This fragmentation and the lack of synchrony between the laws 
applicable make the proceedings more complex for the parties and the practitioners, as well as the 
courts. More precisely, the five cases reported dealt with the interrelationship between the Brussels 
IIa Regulation and the 1961 Hague Convention.  

In all the cases, Luxembourg courts had jurisdiction over parental responsibility issues pursuant to 
Article 12 of the Brussels IIa Regulation. In other words, the Luxembourg courts had jurisdiction over 
both matrimonial and parental responsibility matters. As for the law applicable to divorce, the 
Luxembourg courts ruled that pursuant to Luxembourg conflict-of-law rules, Portuguese law should 
apply (as the law of the nationality of both spouses).  

With regard to the law applicable to custody matters, the Luxembourg Courts expanded on the 
interrelationship between the 1961 Hague Convention and the Brussels IIa Regulation. Firstly, the 
Courts of First Instance referred to Article 60 of the Brussels IIa Regulation, which states that the 
Regulation should prevail over the 1961 Hague Convention. Secondly, the Luxembourg Court of First 
Instance mentioned the scope of each instrument and emphasised the fact that the Brussels IIa 
Regulation does not contain rules on the applicable law. Consequently, the Luxembourg court ruled 
that the prevalence of the Brussels IIa Regulation did not apply to the provisions on the law 
applicable established by the 1961 Hague Convention. As a result, Article 2 of the 1961 Hague 
Convention applied to determining the law applicable to parental responsibility, which was 
determined to be Luxembourg law.  

With regard to the 1980 Hague Convention, 51%177 of respondents to the public consultation were of 
the view that the rules governing its relationship with the Regulation do not work satisfactorily. 
Respondents pointed out that there is room for improvement in particular by simplifying the rules, 
that confusion arises with a parallel reading of the two instruments. A number of respondents 
mention that the rules in relation to return orders are particularly unclear between the two 
instruments. It was also pointed out that the Regulation suffers from the absence of up-to-date 

175 Hausmann, IntEuSchR B No. 255, 256 
176 Tribunal d’arrondissement de Luxembourg, 13 June 2013, case no 124754; Tribunal d’arrondissement; 13 June 2013, case 
no 130507; Tribunal d’arrondissement, 13 June 2013, case no 101915; Tribunal d’arrondissement de Luxembourg, 4 July  
2013, case no 122093; Tribunal d’arrondissement de Luxembourg, 11 July 2013, case no 142027 and 1142633; Tribunal 
d’arrondissement de Luxembourg. 
177 i.e. 76 of 148 valid responses. 

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practical guidance which takes into account the case law which has been established in this area. The 
national experts (BG, HR, LT, SK, UK) and stakeholders interviewed also identified issues relating to 
the application of the instruments (implying that mistakes have arisen in application due to a lack of 
knowledge on the part of practitioners. According to our Bulgarian national expert, there were 
cases178 where Bulgarian courts have disregarded Article 60 of the Brussels IIa Regulation and 
applied the 1980 Hague Convention without taking into consideration the fact that the case involved 
two EU Member States and the factual situation occurred in 2013, i.e. when the Republic of Bulgaria 
was already a EU Member State. Similar observations were made by the Slovakian and French179 
national expert. 

Case example: Interrelationship between Brussels IIa and the 1980 Hague Convention (Bulgaria) 
The national expert for Bulgaria reported that some Bulgarian courts disregard Article 60 lit. e of the Brussels 
IIa Regulation and apply the Hague Convention of 25 October 1980 on the Civil Aspects of International Child 
Abduction. 
In one case (Decision № 6011/02.08.2013, Case № 5581/2013, Sofia City Court), the court did not take into 
consideration the fact that the case was connected to two EU Member States (Bulgaria and Spain) and that 
the factual situation occurred after the accession of the Republic of Bulgaria to the EU. The case concerned a 
child abduction, where the mother – a Bulgarian national residing in Spain, moved her child from Spain to 
Bulgaria without the consent of his father, a Spanish national with habitual residence in Spain.  
The Bulgarian court not only disregarded the application of Brussels IIa, but also did not take into 
consideration the hierarchy and the ratio between national legislation, the EU acts and the general 
international treaties. As a result, instead of applying first the EU act (i.e. the Brussels IIa Regulation), the 
court applied the Child Protection Act of Bulgaria “in connection with” (quotation) the Hague Convention of 
25 October 1980 on the Civil Aspects of International Child Abduction. 
Obviously, the court should not have applied the Hague Convention but the Regulation in view of Article 60 
lit. e of the Brussels IIa Regulation. When referred to the Brussels IIa Regulation, the court again referred first 
to the Child Protection Act of Bulgaria “in connection with” the Brussels IIA Regulation. 
The same approach was taken in Decision № 6019 /02.08.2013, Case № 4848/2013, Sofia City Court, and a 
similar approach was taken in Decision № 6168/14.08.2013, Case № 3043/2013, Sofia City Court, with an 
almost identical factual situation involving a child abduction between Bulgaria and Belgium which took place 
after 2009. 
Similar observations were made by the Slovakian expert as well as a German judge interviewed.  

Related to these issues, the Lithuanian and the UK national experts noted that the precedence of the 
Regulation was not sufficiently clear for practitioners. This was supported by the expert for the UK. 
He indicated that Nigel Lowe, a legal scholar, had identified certain ambiguities. As Lowe 
comments180, the two fundamental questions of whether or not the Brussels IIa Regulation applies 
on the basis of Article 60(e) and, if so, how, are not always straightforward. In terms of jurisdiction, 
the Brussels IIa Regulation can apply to children who are habitually outside the EU.  

In terms of how the Brussels IIa Regulation might apply, questions arose whether it is even permitted 
to use the Hague Convention to enforce a return order. In contrast to this perception, other experts 
were of the opinion that the Regulation is clear on this matter (e.g. CY, HR).  

Our Irish national expert indicated that the Irish court faced difficulties in one case because the 
father did not have custody rights within the meaning of Article 3 of the Hague Convention, but did 

178 Decision № 6011/02.08.2013, Case № 5581/2013, Sofia City Court, Decision № 6019 /02.08.2013, Case № 4848/2013, 
Sofia City Court, Decision № 6168/14.08.2013, Case № 3043/2013, Sofia City Court. 
179 Civ 1, 29 February 2012 n°11-15613.  
180 International Family Law [2013] pp. 114-118. 

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have custody rights under the Brussels IIa Regulation, as the latter is to be interpreted in the light of 
Article 8 of the European Convention on Human Rights (ECHR).  

In 2010, the Austrian Supreme Court rendered a judgment on the impact of a provisional measure 
within the meaning of Article 20 of the Brussels IIa Regulation – taken in the Member State where 
the child is actually resident – on the enforcement according to the Hague Convention on child 
abduction of 1980.181 Generally, custody decisions are prohibited in the state of enforcement (Article 
16 Hague Convention on child abduction of 1980). If such a decision is rendered nonetheless, this 
decision does not constitute grounds for refusing enforcement (Article 17 Hague Convention on child 
abduction of 1980). According to the Supreme Court’s case law, this provision also applies if 
provisional measures within the meaning of Article 20 of the Brussels IIa Regulation are taken in the 
Member State of enforcement. Hence, such provisional measures do not hinder the enforcement of 
a decision according to the Hague Convention on child abduction of 1980. 

With regard to the 1980 Hague Convention on the Civil Aspects of International Child Abduction, a 
few respondents to the public consultation highlighted an issue relating to the coordination between 
Article 11(4) of the Brussels IIa Regulation and Article 13 of the Hague Convention. An academic from 
the UK highlighted the fact that, while according to the rules set out by Article 13(1)(b) of the Hague 
Convention the court is not obliged to order the return of the child if there is a grave risk that the 
return would expose the child to physical or psychological harm, or place the child in an intolerable 
situation, the rules set out by Article 11(4) of Brussels IIa Regulation on refusing a return application 
are not sufficiently clear. The respondent stated that the automatic return of the child set by Article 
11(4) should therefore be interpreted as a less rigid principle as the child’s welfare still has to be 
safeguarded. A judge from Austria stressed that, to prevent the return of the child from being 
ordered even though it could put the child at risk, the return cannot be ordered automatically.182 

In relation to the 1996 Hague Convention, 46%183 of respondents to the public consultation indicated 
that the rules governing its relationship with the Regulation do not work satisfactorily. Conflicts were 
also outlined by the national expert for Germany regarding cases in which the child moves from a 
participating state of the Brussels IIa Regulation to a state that does not apply the Brussels IIa 
Regulation, but the Hague Convention. If, for example, a Danish child whose habitual residence is in 
Germany moves to Denmark after one parent has initiated legal proceedings on parental 
responsibility before a German court, jurisdiction continues to lie with the German court under 
Article 61 lit. a and Article 8 para 1 of the Brussels IIa Regulation. Under Article 5 para 2 of the Hague 
Convention, on the other hand, the Danish courts have jurisdiction as soon as the child has 
established habitual residence in Denmark. Therefore, Germany by relying on Article 8 para 1 of the 
Regulation and the principle of perpetuatio fori, violated its international obligations to Denmark 
when ratifying the Hague Convention.184 The same issue was raised by the French national expert. 
Similarly, a representative of the Czech Ministry of Justice noted that the Brussels IIa principle of 

181 Judgment of 11.02.2010, Oberster Gerichtshof, 5 Ob 260/09k. 
182 To support his point, this respondent to the public consultation mentioned the case Neulinger and Shuruk vs. Switzerland 
of the ECtHR, stating that the return of the child cannot be ordered automatically, and that the effects of the time limit elapses 
since the child moved to another country. 
183 I.e. 65 out 142 valid responses. 
184 See Hausmann, IntEuSchR B No. 260 with further references to the German legal debate. 

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perpetuatio fori is not recognised in the 1996 Hague Convention – a situation that may lead to 
jurisdictional conflicts.  

The Swedish expert also identified difficulties. He raised the question as to which instrument should 
be used to transfer a case to a court of a third state better placed to hear the case when the child is 
habitually resident in a Member State. Article 15 of the Regulation only allows for a transfer to a 
court of another Member State. Article 10 of the 1996 Hague Convention would allow to transfer a 
case to third state that has ratified the Convention. However, according to Article 61 of the 
Regulation, the 1996 Hague Convention should not apply, as the Brussels IIa Regulation takes 
precedence. 

A Romanian expert stated that the non-ratification of the 1996 Hague Convention by Italy is 
creating many problems in practice when it comes to the establishment of the applicable law. In such 
cases, Romanian courts apply Romanian law, which may be less predictable for the parties.  

While a large majority of national experts did not identify any other issues relating to the 
relationship with other legal instruments, the national experts for BG, HR and SK pointed to 
practical difficulties linked to the application of bilateral agreements and the 1961 Hague Convention 
Abolishing the Requirement of Legalisation for Foreign Public Documents. 

More specifically, according to the national experts for Croatia and Slovakia, there is very often 
uncertainty as to whether bilateral conventions with third countries regulating jurisdiction in 
matrimonial and parental responsibility matters can be applied. For instance, Croatia has ratified 
numerous bilateral agreements with neighbouring non-EU States which do not clearly differentiate 
which one is applicable. In a case heard by the Court of First Instance of Rijeka185, the court first 
found its grounds in a bilateral agreement, and then shifted over to a multilateral agreement. 

In Bulgaria, some lack of clarity emerged about the interrelationship between the Brussels IIa 
Regulation and the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public 
Documents. 

Case example: Interrelationship between Brussels IIa and the Apostille Convention (Bulgaria) 
In Bulgaria, the Supreme Administrative Court (Decision № 15903/12.12.2012, Case No 4237/2012) held that 
the certificate attached to a foreign divorce decision of a court of a Member State in conformity with Article 
39 of the Brussels IIa Regulation (which is a standard form set out in Annex I) should bear an apostille (i.e. an 
international certification comparable to notarisation in domestic law). The Court correctly applied Article 21 
para 1 of the Regulation and did not adopt any special procedure for the recognition of the decision in 
question. Furthermore, it acknowledged that Article 21 should apply in conformity with Article 37. As Article 
52 of the Regulation does not include certificates (referred to in Article 39) in the list of documents that do 
not need legalisation or other similar formalities (documents referred to in Articles 37, 38 and 45), the Court 
inferred that in conformity with the Hague Convention Abolishing the Requirement of Legalisation for Foreign 
Public Documents (5th October 1961, The Hague, the “Apostille Convention”) this certificate needs to bear an 
apostille. The Court substantiated this by further underlining that the Brussels IIa Regulation does not exempt 
certificates under Article 39 of the Regulation from the requirement for an apostille and that all EU Member 
States are parties to the Apostille Convention. As a result, the divorced parties were forced to apply for an 
apostille in the Member State of origin of the certificate. 

185 No. P.-1278/13 of 10 October 2013. – final. 

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3.2.3  Interrelationship with the Nordic Convention 

No major practical difficulties were identified in interrelationship with the Nordic Convention have 
been identified. 

The Nordic Convention (referred to in Article 59 of the Brussels IIa Regulation) could potentially 
impact on national procedures in Sweden and Finland. 

While the national expert for Finland did not identify any practical difficulties, the national expert for 
Sweden noted that the rules of jurisdiction in the Nordic Convention, in accordance with the 
requirement in Article 59 (2)(c), are modelled on the previous Brussels II Regulation, i.e. Regulation 
1347/2000, and only cover decisions handed down in connection with a divorce decision. The 
Nordic Convention needs to be amended to reflect the present wording of the Brussels IIa 
Regulation. 

According to the experts interviewed and stakeholders in Sweden and Finland, no practical issues 
have, however, been identified in relation to the Nordic Convention. A Swedish judge pointed out, in 
particular, that Nordic decisions are generally enforced without a declaration of enforceability. 

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3.3  Effectiveness 

This section presents the findings on the effectiveness of the Brussels IIa Regulation at the level of 
the specific and general objectives. 

The following evaluation questions have guided this work, and are dealt with in the sub-sections 
below: 

  To what extent have the core objectives been achieved? 

Is the Regulation applied smoothly in the Member States? 

A systematic analysis of the Brussels IIa Regulation’s core objectives and its ability to achieve these 
guided the assessment of the instrument’s effectiveness. The core objectives of the Brussels IIa 
Regulation were identified at three levels: 

  General objectives are derived from Treaty-based goals (and therefore constitute a link 

with the existing policy-setting) at the level of impact indicators.  

  Specific objectives relate to the specific domain and nature of the intervention under 
consideration. The specific objectives correlate with result indicators. Defining these is 
also crucial as they set out in detail what the Commission wants to achieve with the 
intervention.  

  Operational objectives relate to deliverables or actions and have a close link with output 

indicators.  

The figure below outlines the objectives identified, illustrated by means of an ‘objectives tree’. The 
figure flows from bottom to top. 

The assessment of effectiveness in this chapter is conducted at the level of the specific and general 
objectives. A more detailed analysis of this evaluation criterion, at the level of the operational 
objectives, is presented in Annex 1. 

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Figure 1: Objectives tree – Matrimonial matters and parental responsibility 

Source: Deloitte 

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3.3.1  Achievement of the specific objectives 

This section presents the findings on the effectiveness of the Brussels IIa Regulation at the level of 
the specific objectives. The table below displays the five specific objectives as well as the shortened 
denominations, which have been used as headings in the sub-sections below. 

Table 1: Specific objectives and their shortened denominations 

Specific objective 
Specific objective 1: To ensure that citizens in 
international families with a close connection to the 
EU are guaranteed access to court in a suitable 
Member State 
Specific objective 2: To increase predictability, 
clarity, and reliability for citizens involved in cross-
border cases 
Specific objective 3: To ensure that citizens do not 
have to provide additional administrative 
documents and/or follow additional proceedings to 
have judgments recognised or enforced 
Specific objective 4: To ensure the protection of the 
economically weaker spouse 
Specific objective 5: To safeguard the well-being of 
the child and the parent-child relationship 

Shortened denominations 
Access to court for citizens in international families 
with a close connection to the EU 

Predictability, clarity, and reliability for citizens 
involved in cross-border cases 

Smooth recognition and enforcement of judgments, 
authentic instruments and agreements 

Protection of the economically weaker spouse 

Well-being of the child and parent-child relationship 

As depicted in the objectives tree in the previous section, the achievement – or potential barriers to 
the achievement – of these objectives in turn has an impact on the protection of fundamental rights, 
as well as the levels of stress and delays faced by citizens. Impacts on the other specific objectives 
related to the protection of fundamental rights, reduction in stress and delays, are dealt with in 
Annex 7. Impacts on the costs are dealt with in the section on efficiency (Section 3.4) and in Annex 7. 

The analysis of the achievement of the specific objectives presented in this chapter builds on the 
detailed analysis that was carried out at the level of the operational objectives (presented in Annex 
1). For each of the operational objectives, a number of legal issues were identified, which hamper the 
achievement of the operational objectives and, in turn, the specific objectives. The table below 
shows the link between the high-priority legal issues identified for each operational objective and the 
specific objectives of the Regulation. In addition, the table identifies whether the legal issues relate 
only to matrimonial matters, only to parental responsibility matters, if they are horizontal in 
character and thus refer to both, or if they refer to other specific issues (see the column ‘type of 
issue’). The legal issues listed below were identified to be particularly significant186 and given high 
priority status throughout the analysis. The full list of legal issues identified is provided in Annex 1 of 
the present report. 
For each of the high-priority legal issues in the table below, the specific objective which is most 
impacted has been identified and marked in dark green. Other specific objectives on which a legal 
issue has a clear, but lesser, impact are marked in light green. In the analysis of the achievement of 
the specific objectives that follows, a detailed discussion of each legal issue has been included only 

186 The criteria for defining the high priority issues were as follows: (1) The legal issue requires a substantial modification to 
the Regulation; (2) The legal issue refers to fundamental rights; and (3) A significant number of people are affected. The list 
of issues and their prioritisation were agreed with the European Commission. 
Please  refer  to  the  section  “What  are  the  legal  issues  under  the  Regulation?”  in  Annex  8  for  an  explanation  of  the 
methodological approach used for the identification and prioritisation of the issues affecting the application of the Brussels 
IIa Regulation. 

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under specific objective where the legal issue has been marked with dark green, in order to avoid 
repetition. Cross-references are provided within the sections to the other specific objectives. 

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Table 2: Links between specific objectives, operational objectives and identified high priority issues 

Barriers to achieving the objectives 

Specific Objective (SO) 

Access to court 
for citizens in 
international 
families with a 
close connection 
to the EU (SO1) 

Predictability, 
clarity, and 
reliability for 
citizens involved 
in cross-border 
cases (SO2) 

Smooth 
recognition and 
enforcement of 
judgments, 
authentic 
instruments and 
agreements (SO3) 

Protection of the 
economically 
weaker spouse 
(SO4) 

Well-being of the 
child and parent-
child relationship 
(SO5) 

Operational 
objectives (OO) 

Type of issue 

Description of issue 

Jurisdiction 
Rules (OO1) 

Hearing of the 
child and its 
representation 
in court (OO2) 

Matrimonial 
matters 

Parental 
responsibility 

Horizontal issues 

Hearing of the 
child 

Representation 
of the child in 
court 

Potential for ‘rush to court’/’forum shopping’ on the basis 
of the alternative grounds of jurisdiction 

The current jurisdiction rules do not sufficiently promote a 
common agreement between spouses 

Different interpretations of the term ‘habitual residence’  

Potential exclusion of certain people with a close 
connection to the EU from access to a suitable EU court 

Inconsistent practices across Member States related to 
the hearing of the child in parental responsibility 
proceedings and return procedures (leading to difficulties 
related to the recognition and enforcement of judgments) 

Different practices related to the representation of the 
child in court 

Recognition and 
enforcement 
(OO3) 

Parental 
responsibility  

Different interpretations of the term ‘recognition’ leading 
to differing practices as to which judgments require a 
declaration of enforceability 
Exequatur proceedings are still in place for some types of 
judgments 

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Barriers to achieving the objectives 

Specific Objective (SO) 

Access to court 
for citizens in 
international 
families with a 
close connection 
to the EU (SO1) 

Predictability, 
clarity, and 
reliability for 
citizens involved 
in cross-border 
cases (SO2) 

Smooth 
recognition and 
enforcement of 
judgments, 
authentic 
instruments and 
agreements (SO3) 

Protection of the 
economically 
weaker spouse 
(SO4) 

Well-being of the 
child and parent-
child relationship 
(SO5) 

Operational 
objectives (OO) 

Type of issue 

Description of issue 

Decisions on matters of parental responsibility are often 
enforced late or not at all due to the use of inefficient 
means for enforcement or because judgments are 
reviewed at the stage of enforcement 
Difficulties relating to the time limit for return (i.e. not 
clear and not effective) 
Questions on the practical application of Article 11(4) and 
ambiguity as regards the concept of ‘adequate 
arrangements’ under that provision 
The system stipulated in Article 11(6) to (8) may endanger 
the well-being of the child if a child is returned in spite of a 
risk that has been established in the return proceedings 
and possibly after a long time has passed   
Return orders are often enforced late or not at all due to 
the use of inefficient means for enforcement or because 
of misapplication of the Regulation and reservations 
against the content of decisions 
Rules relating to the obligation for Central Authorities to 
collect and exchange information on the situation of the 
child that are not specific enough, and thus cause practical 
problems 

Insufficiently specific provisions on the procedure for the 
placement of a child in another Member State 

Return 
procedure under 
Article 11(1) to 
(5) 

Provisions 
specific to child 
abduction cases 
(OO4) 

Hearings under 
Article 11(6) to 
(8) 

Enforcement of 
return orders 

Cooperation 
between Central 
Authorities 

Support to 
citizens in cross-
border 
proceedings by 
Central 
Authorities 
(OO5) 

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Barriers to achieving the objectives 

Specific Objective (SO) 

Access to court 
for citizens in 
international 
families with a 
close connection 
to the EU (SO1) 

Predictability, 
clarity, and 
reliability for 
citizens involved 
in cross-border 
cases (SO2) 

Smooth 
recognition and 
enforcement of 
judgments, 
authentic 
instruments and 
agreements (SO3) 

Protection of the 
economically 
weaker spouse 
(SO4) 

Well-being of the 
child and parent-
child relationship 
(SO5) 

Operational 
objectives (OO) 

Type of issue 

Description of issue 

Involvement of 
social authorities 

Unclear division of roles in the context of the cooperation 
between Central Authorities and local authorities/child 
welfare authorities in the proceedings concerning children 

Mediation 

The use of mediation is currently not promoted to a 
sufficient extent 

Information and 
awareness 
(OO6) 

Horizontal issues 

Practitioners are not sufficiently aware of the Regulation, 
leading to the misapplication of certain provisions of the 
Brussels IIa Regulation 
Citizens are not sufficiently aware of the content of the 
Regulation and its implication for international 
proceedings on matrimonial matters, matters of parental 
responsibility or child abduction 

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The following sub-sections provide an overview of how the high-priority legal issues impact on the 
achievement of the specific objectives by causing various problems for citizens. A detailed legal 
analysis of all legal issues (i.e. of all levels of priority) is provided in Annex 1 on the achievement of 
the operational objectives.  

The findings are based on the triangulation of data collected through various channels, including 
desk research, interviews, the expert panel, the 27 national reports produced by the network of 
national legal experts, a survey of Central Authorities, and the analysis of the responses to the 
European Commission’s public consultation187. The relevant evidence is provided in Annex 1, while 
the present section focuses on the main insights and conclusions based on these sources. 
Quantitative estimates are provided in the chapter “Quantitative analysis and hypothetical cases”. 
Additional analysis on costs, delays, stress and fundamental rights is also provided for each 
hypothetical case in the same section. 

For each specific objective, we present the following information: 

  A first box (with a blue frame) about the following elements: 
o  How the topic addressed is important for citizens; 
o  How the Regulation addresses this topic; 
  Then a summary of the main findings in a free text; and 
  Finally  a  table  analysing  for  each  high-priority  legal  issue  the  link  with  the  specific 
objective; we invite the reader to focus on the lines that are marked as “dark green”, 
inasmuch  as  the  “light  green”  ones  are  then  further  explained  in  another  specific 
objective  (following  the  logic  of  Table  2);  cross-references  for  the  light  green  ones 
are indicated in order to facilitate the search for information. 

Access to court for citizens in international families with a close connection to the EU 

How is the topic important for citizens? 
Citizens with a close connection to the EU who are in an international family conflict and want to obtain a 
divorce or a separation, or a ruling on parental responsibility expect to be granted access to a suitable court 
within the EU. In this regard, the Charter of Fundamental Rights of the European Union188, in its Article 47 (Right 
to an effective remedy and to a fair trial) guarantees the access to justice as well as legal aid where necessary. 
How does the Regulation address this topic? 
The Brussels IIa Regulation ensures access to court for citizens in international families with a close connection to 
the EU through clear rules on jurisdiction in international disputes on matrimonial matters and matters of 
parental responsibility.189 
In addition to ensuring the access to court through clear jurisdiction rules, the provisions of the Brussels IIa 
Regulation aim at providing access to the most suitable court for each specific case: 

  In  matrimonial  matters,  jurisdiction  can  be  established  based  on  different  alternative 
grounds, which are linked to the spouses’ current or former habitual residence or their 
nationality. The alternative grounds provide some flexibility to the spouses to file their 
case before the most suitable court. 

  In matters of parental responsibility, jurisdiction is based on the criterion of proximity 

187 A detailed description of the study’s methodology including the data collection activities is provided in the chapter “Main 
Elements of the Methodology for the Evaluation and Impact Assessment of the Brussels IIa Regulation”. 
188 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:en:PDF  
189 In this regard, please also refer to the analysis regarding the specific objective “Predictability, clarity, and reliability for 
citizens involved in cross-border cases” of the Brussels IIa Regulation. 

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(i.e.  the  habitual  residence  of  the  child),  subject  to  some  flexibility.  This  ensures  that 
the  child’s  view  can  be  taken  into  account  without  the  child  having  to  travel,  that 
procedures  relating  to  the  collection  of  evidence  (e.g.  situation  reports)  can  be 
completed  as  quickly  as  possible,  and  that  the  court  has  an  understanding  of  the 
situation in the Member State the child lives in. 

Furthermore, the Regulation provides possibilities for grouping or transferring cases to more suitable courts.190 
Finally, Article 50 of the Brussels IIa Regulation aims to ensure that Member States provide legal aid to those 
who need it, thereby securing effective access to justice for vulnerable groups.191 192 
While the existing provisions on jurisdiction and legal aid are ensuring effective access to (a suitable) 
court for citizens in international families with a close connection to the EU in a very large majority 
of cases193, three legal issues relating to jurisdiction rules are still leading to risks of citizens being 
excluded citizens from their fundamental right to access to a court within the EU or to situations, 
where the court that has been determined as having jurisdiction may not be the most suitable one 
to hear the case. The three legal issues are discussed in more detail in the table below.  

Table  3:  High-priority  legal  issues  under  specific  objective  1  “Access  to  court  for  citizens  in 

international families with a close connection to the EU” 

High-priority legal issues 

Specific objective 1: Access to court for citizens in international families with a close 
connection to the EU 

Jurisdiction rules 
The current jurisdiction 
rules do not sufficiently 
promote a common 
agreement between 
spouses 
Potential exclusion of 
certain people with a 
close connection to the 
EU from access to a 
suitable EU court 

As discussed further under specific objective 4 “Protection of the economically 
weaker spouse”, the failure to enable the choice of court may prevent couples from 
access to the most suitable/convenient court (from the parties’ perspective).194 

The jurisdiction rules of the Brussels IIa Regulation do not apply to families of 
different nationalities living in a third State. In these situations, national rules are 
used to establish jurisdiction.195 In other words, the courts of the Member States 
may avail themselves of national rules of jurisdiction (so-called “residual 
jurisdiction”).196 In matrimonial proceedings, residual jurisdiction rules may be 
applied if the spouses have nationalities of different EU Member States and their 
place of residence in a third country. For matters of parental responsibility, the rules 
on residual jurisdiction are relevant for children who are EU citizens and have their 
habitual residence in a third country. 
The national rules of jurisdiction are not harmonised, but based on different criteria, 
such as nationality, residence or domicile.197 Indeed, the national rules to determine 

190 A comprehensive analysis of these issues can be found in the sections “Ambiguities in the interpretation of the rules on 
prorogation of jurisdiction” and “Limited actual use of the possibility to transfer a case” in Annex 1. 
191 The provisions on legal aid are restricted to the main recognition and enforcement procedures: Article 21 (Recognition of 
a judgment), Article 28 (Enforceable judgments), Article 41 (Rights of access), Article 42 (Return of the child), Article 48 
(Practical arrangements for the exercise of rights of access). 
192 A comprehensive analysis of this issue can be found in the section Legal aid systems do not sufficiently take into account 
the specific needs and costs related to proceedings under the Brussels IIa Regulation in Annex 1. 
193 A comprehensive analysis can be found in the section “Jurisdiction rules” in Annex 1. 
194  A  comprehensive  analysis  of  this  issue  can  be  found  in  the  section  “Jurisdiction  rules  applicable  to  matrimonial 
matters”,  sub-section  The current  set-up  of jurisdiction  rules  does  not  sufficiently  promote  a common  agreement  between 
spouses in Annex 1. 
195 Article 7 for matrimonial matters and Article 14 for parental responsibility 
196 A comprehensive analysis of this issue can be found in the section  Potential exclusion of certain people with a close 
connection to the EU from access to a suitable EU court in Annex 1. 
197 For an overview of the national rules on residual jurisdiction, please refer to the sub-section Potential exclusion of certain 
people with a close connection to the EU from access to a suitable EU court of section “Horizontal issues” in the Chapter 
“Jurisdiction Rules” in Annex 1. 

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jurisdiction seem to vary widely. In about half the Member States the nationality of 
either a spouse or the child concerned is sufficient to bring proceedings in the EU 
irrespective of residence. In the other half, it is not possible for residents of third 
countries to bring proceedings in the Member States’ jurisdiction.198 The issue is 
thus very sensitive, as in those countries where the latter situation applies, the 
groups referred to above (couples and children with nationality of an EU Member 
State but residence in a third country) may potentially be excluded from access to a 
court in the EU, although they might have a close connection to a Member State by 
means of their nationality. 
It appears that the non-harmonisation of rules on residual jurisdiction has not led to 
any major practical problems related to the exclusion of certain groups of people. 
While a theoretical risk of exclusion of EU citizens who have their residence outside 
the EU from access to court – mainly based on nationality – exists, it was not possible 
to identify any evidence on actual cases of this nature. Nonetheless, the respect of 
the fundamental right of access to justice (Article 47 of Charter of Fundamental 
Rights of the European Union) might be considered as jeopardised by the potential 
(i.e. theoretically possible) exclusion of certain groups of citizens to access to a court 
in the EU due to the non-harmonisation of rules on residual jurisdiction. 
It is important to note that – unlike recent legislative instruments, such as the 
Maintenance Regulation or the Succession Regulation (650/2012) – the Brussels IIa 
Regulation does not provide for a forum necessitatis199 – i.e. a forum which is 
provided to individuals to whom no other forum is available and where the dispute 
has a sufficient connection with the Member State concerned.200 The absence of a 
forum necessitatis in the Brussels IIa Regulation in combination with the reliance on 
(non-harmonised) national rules to establish residual jurisdiction may lead to 
situations where EU citizens are excluded from any jurisdiction on matrimonial 
matters and parental responsibility, i.e. do not have access to court in the EU.201 
Different interpretations  As discussed further under specific objective 5 “Well-being of the child and parent-

An overview of national rules on divorce prepared by the European Judicial Network in Civil and Commercial Matters is 
available at: http://ec.europa.eu/civiljustice/divorce/divorce_ec_en.htm 
198 The national rules on residual jurisdiction were reviewed in a study commissioned by the European Commission in 2007: 
Nuyts et al. (2007): Review of the Member States’ Rules concerning the ‘Residual Jurisdiction’ of their courts in Civil and 
Commercial Matters pursuant to the Brussels I and II Regulations, study commissioned by the European Commission, pp. 
94-97. For matrimonial matters, the study found that the citizenship of one spouse is not a valid ground of jurisdiction in 
the following Member States: BE, CY, DE, ES, FI, GR, LV, MT, NL, Scotland. In Croatia, which became a Member State 
in 2013, the citizenship of one spouse is not a valid ground of jurisdiction, except if the plaintiff is a citizen of the Republic 
of Croatia and the law of the state whose courts would have jurisdiction does not provide for the institution of dissolution of 
marriage (Articles 61-63 of the Croatian Private International Law Act). For matters of parental responsibility, the study 
found that citizenship of the child or of one parent is not a ground of jurisdiction in the following Member States: CY, DE, 
DK, FI, LV, MT, NL, PT, RO, Scotland, SE, SK, SI (however, the citizenship of both parents is a ground of jurisdiction). 
This information is subject to any legislative changes that may have occurred since 2007. An overview of national rules on 
divorce  prepared  by 
is  available  at: 
http://ec.europa.eu/civiljustice/divorce/divorce_ec_en.htm.  
199 Grounds of jurisdiction that allows, on an exceptional basis, a court of a Member State to have jurisdiction over a case 
which is connected with a third State, in order to remedy, in particular, situations of denial of justice, for instance where the 
proceedings  prove  impossible  in  the  third  State  in  question  (for  example,  because  of  civil  war);  see  Recital  16  of  the 
Maintenance  Regulation.  It  is traditionally considered,  and  has  even  been  pointed out  during  parliamentary  discussions  in 
some Member States, that this jurisdiction “of necessity” is based on, or is even imposed by, the right to a fair trial under 
Article 6(1) of the European Convention on Human Rights –Study on Residual Jurisdiction, p. 64. 
Such grounds of jurisdiction were demanded by the European Parliament in its legislative resolution of 15 December 2010 
on the proposal for the Rome III Regulation; Resolution P7_TA(2010)0477, point 3. 
200  A  comprehensive  analysis  of  this  issue  can  be  found  in  the  section  Potential  exclusion  of  certain  people  with  a  close 
connection to the EU from access to a suitable EU court in Annex 1. 
201 Numerous stakeholders and experts as well as a large majority of the respondents to the European Commission’s public 
consultation (77%) noted that the absence of a “forum necessitatis” hampers legal certainty and the assurance of EU citizens’ 
fundamental right of access to court. Please refer to the section “Quantitative analysis” for an estimation of the number of 
citizens affected by this issue. 

in  Civil  and  Commercial  Matters 

the  European  Judicial  Network 

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of the term ‘habitual 
residence’ 

child relationship”, there are difficulties in applying the concept of habitual residence 
of the child.202 Based on the vagueness of the concept, there can be situations in 
which proceedings are held in a Member State that is not the best placed to hear the 
case. This is detrimental to the objective of ensuring effective access to the most 
suitable court. 

Predictability, clarity, and reliability for citizens involved in cross-border cases 

How is the topic important for citizens? 
When international married couples want to divorce or separate, or decisions must be made on the exercise 
of parental responsibility in international families, citizens expect predictable, clear and reliable rules as part 
of an internal market that is functioning effectively and a common judicial area. Disputes on international 
family law issues are already very stressful for citizens and it is imperative that legal obstacles and ambiguity of 
applicable rules not cause further issues and stress. 
How does the Regulation address this topic? 

One of the core aims of the Brussels IIa Regulation is to offer EU citizens legal certainty and 
predictability  in  cross-border  disputes  through  clear  rules  concerning  jurisdiction  (i.e.  what 
court (in what country) is competent to handle the case), and the recognition and enforcement 
of  judgments.  The  Brussels  IIa  Regulation  provides  a  comprehensive  set  of  rules  on 
international jurisdiction as well as recognition and enforcement of foreign judgments in 
matrimonial  matters  and  matters  of  parental  responsibility.  National  substantive  rules  are  not 
affected by the Brussels IIa Regulation.  

Legal clarity, predictability and reliability are cross-cutting issues that concern all provisions of 
the instrument and are mainly ensured through detailed and unambiguous provisions, as well as 
coherent  implementation  in  practice  in  all  Member  States.  In  some  cases,  additional 
clarifications  have  been  provided  through  interpretations  of  the  European  Court  of  Justice 
(ECJ). In addition, to ensure support to citizens in cross-border proceedings relating to parental 
responsibility,  all  Member  States  have  established  Central  Authorities.  These  bodies  assist 
citizens in the understanding and use of the rules laid down in the Brussels IIa Regulation in 
specific  cases  of  parental  responsibility  matters.  Finally,  various  European  Commission  and 
Member  State  soft  measures  –  such  as  training,  information  portals203  or  the  publication  of 
guides204 and brochures – aim at improving the awareness and understanding of the functioning 
of the Brussels IIa Regulation among citizens and legal practitioners. 

There is broad agreement among experts and stakeholders that – compared to the situation before 
the enactment of the Brussels IIa Regulation – the Regulation has brought about increased 
predictability, clarity and reliability for citizens involved in international disputes in matrimonial 
matters and matters of parental responsibility. Establishing common rules on international 
jurisdiction and recognition and enforcement, has smoothed the resolution of such disputes. 

Nonetheless, a series of remaining legal issues are negatively affecting the predictability, clarity, and 
reliability for citizens involved in cross-border cases. These issues are discussed in the table below. 

202  See  Article  8  Brussels  IIa  Regulation.  A  comprehensive  analysis  of  this  issue  can  be  found  in  the  section  Different 
interpretations of the term ‘habitual residence’ in Annex 1.  
203 See for instance European e-justice portal: https://e-justice.europa.eu/content_family_matters-44-en.do  
204  See  for  instance  the  European  Commission’s  practical  guide  for  the  application  of  the  Brussels  IIa  Regulation, 
http://ec.europa.eu/civiljustice/publications/docs/guide_new_brussels_ii_en.pdf  

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Table 4: High-priority legal issues under specific objective 2 “Predictability, clarity, and reliability 

for citizens involved in cross-border cases” 

High-priority legal issues 

Specific objective 2: Predictability, clarity, and reliability for citizens involved in 
cross-border cases 

Jurisdiction rules 
Potential exclusion of 
certain people with a 
close connection to the 
EU from access to a 
suitable EU court 

Potential for ‘rush to 
court’/’forum shopping’ 
on the basis of the 
alternative grounds of 
jurisdiction 

The current jurisdiction 
rules do not sufficiently 
promote a common 
agreement between 
spouses 

Different interpretations 
of the term ‘habitual 
residence’ 

As discussed under specific objective 1 “Access to court for citizens in international 
families with a close connection to the EU”, the Brussels IIa Regulation does not apply 
to families of different nationalities living in a third State. In these situations, national 
rules are used to establish jurisdiction (so-called “residual jurisdiction”). The national 
rules on jurisdiction are not harmonised, and in some Member States it is not 
possible for residents of third countries to bring proceedings in the Member State’s 
jurisdiction. In addition, the Brussels IIa Regulation does not provide for a forum 
necessitatis – i.e. a forum which is provided to individuals to whom no other forum is 
available and where the dispute has a sufficient connection with the Member State 
concerned. The different treatment in different Member States of residents of third 
states may lead to situations where it is not clear to EU citizens whether they have 
access to a court in the EU.  The uncertainty on whether their fundamental right of 
access to court in the EU is guaranteed can be a significant source of stress for 
citizens. 
As discussed further under specific objective 4 “Protection of the economically 
weaker spouse”, the jurisdiction rules of the Brussels IIa Regulation205 leave room for 
‘rush to court’ or ‘forum shopping’ behaviour.206 This behaviour reduces 
predictability, as spouses may feel pressured to act fast and file applications in 
different courts shortly after each other. This can be a significant source of stress for 
citizens.  
As discussed further under specific objective 4 “Protection of the economically 
weaker spouse”, the jurisdiction rules of the Brussels IIa Regulation currently do not 
provide for a possibility for spouses to choose the competent court by common 
agreement (choice of court)207 preventing couples from predetermining the 
jurisdiction of potential divorce proceedings. This creates uncertainty on the 
applicable jurisdiction and the risk of a rush to court in case of divorce. 
As discussed further under specific objective 5 “Well-being of the child and parent-
child relationship”, the vagueness of the concept of the habitual residence of the 
child has in some cases led to challenges regarding the determination of jurisdiction 
in cases relating to parental responsibility matters.208 The vagueness of the concept 
leaves room for long debates about it in court with uncertain outcomes. This may be 
very stressful for the parties involved. 

Hearing of the child and its representation in court 
Inconsistent practices 
across Member States 
related to the hearing of 
the child in parental 
responsibility 
proceedings and return 
procedures (leading to 

As discussed further under specific objective 5 “Well-being of the child and parent-
child relationship”, the vagueness of provisions on the hearing of the child and the 
differences in national standards in this regard have led to reservations and refusals 
of the recognition and enforcement of certain judgments, thus standing in the way 
of the legal certainty and predictability for citizens. 

205 Notably Article 3 and 19 of the Brussels IIa Regulation. 
206  A  comprehensive  analysis  of  this  issue  can  be  found  in  the  section  Potential  for  rush  to  court/forum  shopping  on  the 
basis of the alternative grounds of jurisdiction in Annex 1. 
207 A comprehensive analysis of this issue can be found in the section Jurisdiction rules applicable to matrimonial matters, 
sub-section The current set-up of jurisdiction rules does not sufficiently promote a common agreement between spouses in 
Annex 1. 
208  See  Article  8  Brussels  IIa  Regulation.  A  comprehensive  analysis  of  this  issue  can  be  found  in  the  section  Different 
interpretations of the term ‘habitual residence’ in Annex 1.  

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difficulties related to the 
recognition and 
enforcement of 
judgments) 

Different practices 
relating to the 
representation of the 
child in court 

As discussed further under specific objective 5 “Well-being of the child and parent-
child relationship”, the difficulties concerning the legal representation of the child in 
court are a source of legal uncertainty for citizens due to different practices across 
the Member States and a lack of information on these practices. The uncertainty for 
parents about whether and how their child will be represented in another Member 
State and how this will impact the court proceedings may be a significant source of 
stress. 

Recognition and enforcement 
Different interpretations 
of the term ‘recognition’ 
leading to differing 
practices as to which 
judgments require a 
declaration of 
enforceability 

As discussed further under specific objective 3 “Smooth recognition and enforcement 
of judgments, authentic instruments and agreements”, there is currently no uniform 
interpretation of the term ‘enforcement’, leading to different practices in Member 
States on whether or not judgments require a declaration of enforceability.209 On this 
basis, it is in some cases difficult for citizens to predict whether or not they need go 
through exequatur proceedings.210 

As discussed further under specific objective 3 “Smooth recognition and enforcement 
of judgments, authentic instruments and agreements”, the so-called exequatur 
procedure for the enforcement of judgments on the exercise of parental 
responsibility has been abolished for some types of judgments but pertains for 
others. This may lead to contradictory and unclear situations where a judgment 
refers to different aspects relating to parental responsibility that are governed by 
different procedures (e.g. access rights and custody). 
As discussed further under specific objective 3 “Smooth recognition and enforcement 
of judgments, authentic instruments and agreements”, some decisions on parental 
responsibility are never enforced because of practical obstacles during enforcement 
procedures.211 For citizens involved in cross-border cases on parental responsibility, 
this is a considerable factor of uncertainty, as they cannot be sure whether a 
judgment will eventually be enforced. 

Exequatur proceedings 
are still in place for some 
types of judgments 

Decisions on matters of 
parental responsibility 
are often enforced late 
or not at all due to the 
use of inefficient means 
for enforcement or 
because judgments are 
reviewed at the stage of 
enforcement  
Provisions specific to child abduction cases 
Difficulties relating to 
the time limit for return 
(i.e. not clear and not 
effective) 

As discussed further under specific objective 5 “Well-being of the child and parent-
child relationship”, a lack of clarity exists on the application of the six weeks’ time 
limit. This may result in stress for citizens because they do not know when they can 
expect a wrongfully removed child to be returned. 

Questions on the 
practical application of 
Article 11(4) and 
ambiguity as regards the 
concept of ‘adequate 
arrangements’ under 

As discussed further under specific objective 5 “Well-being of the child and parent-
child relationship”, many experts and stakeholders reported that it is not clear how to 
interpret and apply the concept of “adequate arrangements” in Article 11(4). The 
lack of clarity on the concept of ‘adequate arrangements’ and what arrangements 
need to be made to fulfil this criterion lead to significant legal uncertainty for citizens. 
There is no guideline regarding the procedural and substantive requirements. This 

209 A comprehensive analysis of this issue can be found in the section  Decisions on matters of parental responsibility are 
often enforced late or not at all due to the use of inefficient means for enforcement or because judgments are reviewed at the 
stage of enforcement  in Annex 1. 
210 COM(2014) 225 final, p. 10.  
211 A comprehensive analysis of this issue can be found in the section  Decisions on matters of parental responsibility are 
often enforced late or not at all due to the use of inefficient means for enforcement or because judgments are reviewed at the 
stage of enforcement in Annex 1. 

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that provision 

Return orders are often 
enforced late or not at 
all due to the use of 
inefficient means for 
enforcement or because 
of misapplication of the 
Regulation and 
reservations against the 
content of decisions 

leads to a situation where it is difficult for the party to know whether the measures 
taken will be sufficient. In addition, it is currently not clear who has to implement the 
measures, both from a practical and financial perspective. Finally, the lack of 
precision of the Article leaves open the possibility of a refusal of return being 
legitimised. 
As discussed further under specific objective 5 “Well-being of the child and parent-
child relationship”, in practice, hurdles remain in connection with the actual 
enforcement of return orders.212 As enforcement procedures are subject to the law 
of the Member State of enforcement, the means of enforcement differ across 
Member States. In some Member States, enforcement procedures can last for over a 
year as enforcement courts re-examine the substance of the case, although return 
orders should be enforced immediately. In addition, the actual enforcement of 
return orders is often delayed or not finalised at all, leading to serious doubts on 
the part of citizens with regard to the legal certainty, predictability and reliability of 
the instruments provided by the Brussels IIa Regulation. 

As discussed further under specific objective 5 “Well-being of the child and parent-
child relationship”, practical difficulties have occurred regarding the cooperation 
between Central Authorities and local authorities. Given the practical roles of the 
latter authorities in cases on parental responsibility, it is possible that cases are not 
handled correctly and/or that parents are not well informed, e.g. on the possibilities 
for support offered by the Central Authorities. This can be a significant source of 
uncertainty, delays and stress for citizens. 

Support to citizens in cross-border proceedings by Central Authorities 
Unclear division of roles 
in the context of the 
cooperation between 
Central Authorities and 
local authorities/child 
welfare authorities in 
the proceedings 
concerning children 
Information and awareness 
Practitioners are not 
sufficiently aware of the 
Regulation, leading to 
the misapplication of 
certain provisions 
Citizens are not 
sufficiently aware of the 
content of the 
Regulation and its 
implication for 
international 
proceedings on 
matrimonial matters, 
matters of parental 
responsibility or child 
abduction 

Despite the measures taken by the European Commission and the Member States – 
such as training, information portals213 or the publication of guides214 and brochures – 
aiming at improving the awareness and understanding of the functioning of the 
Brussels IIa Regulation among citizens and legal practitioners, several interviewees 
noted that awareness levels among citizens and legal practitioners are low.215 Citizens 
are often not aware of their rights and obligations under the Brussels IIa Regulation. 
For instance, parents are very often not aware that they cannot bring their child to 
their country of nationality without the consent of the other parent. Insufficient 
information and awareness on the part of citizens can lead to unintended illegal 
behaviour (e.g. child abduction) and result in legal proceedings. Furthermore, it was 
reported that even many lawyers, judges and public child protection services are not 
aware of the basic provisions of the Brussels IIa Regulation, e.g. the automatic 
recognition of (most types of) judgments. Courts outside the capital are also generally 
in need of information. In some cases, this leads to non-application or misapplication 
of (certain provisions of) the Regulation and is thus detrimental to legal certainty and 
predictability for citizens. 

Smooth recognition and enforcement of judgments, authentic instruments and agreements 

212 A comprehensive analysis of this issue can be found in the section Problems regarding the actual enforcement of return 
orders in Annex 1. 
213 See for instance European e-justice portal: https://e-justice.europa.eu/content_family_matters-44-en.do 
214  See  for  instance  the  European  Commission’s  practical  guide  for  the  application  of  the  Brussels  IIa  Regulation, 
http://ec.europa.eu/civiljustice/publications/docs/guide_new_brussels_ii_en.pdf 
215  A comprehensive  analysis of issues related to  the  information  and  awareness of  citizens  and legal  practitioners can be 
found  in  the  section  “Challenges  and  additional  measures  affecting  the  application  of  the  Brussels  IIa  Regulation  in  the 
Member States”. 

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How is the topic important for citizens? 
Citizens involved in cross-border conflicts need to hold proceedings in a Member State other than the Member 
State where they live. If a judgment is taken relating to divorce or matters of parental responsibility, citizens 
need this judgment to be valid (‘recognised’) also in the Member State where they live. Otherwise, several 
practical consequences of a decision cannot be implemented. The change of status caused by a divorce will need 
to be registered by the competent authorities in the Member State and civil status records need to be updated. 
In addition, a divorce potentially has consequences, for example, in relation to property or to taxes. A judgment 
on parental responsibility may specify who will be the main holder of custody rights, where the child will live, 
and the modalities of visits by the other parent. In some cases relating to parental responsibility matters, 
judgments do not only need to be recognised, but also enforced in order to ensure that all parties comply with 
the decision. In addition, it is possible that decisions relating to parental responsibility are not specified in a 
judgment, but in a different form. For example, visiting rights and arrangements could also be agreed in written 
form as a result of mediation sessions. Such agreements are referred to as ‘authentic instruments and 
agreements’. Cross-border family conflicts are already very stressful and costly for the parties involved, and 
sometimes take several years. It is thus of great importance for citizens that the process of recognising, and 
possibly enforcing, a judgment be as smooth as possible and not entail any additional delays or additional costs.  
How does the Regulation address this topic? 

The  need  for  smooth  recognition  and  enforcement  across  the  EU  is  addressed  by  the 
Regulation in different ways. The Regulation states that, in line with the general priorities of 
the  EU216,  judgments,  authentic  instruments  and  agreements  should  as  far  as  possible  be 
intermediate  procedures.217  For  both 
recognisable  and  enforceable  without  extensive 
matrimonial matters and matters of parental responsibility, the following applies with regard to 
the recognition of judgments:  

  Judgments are automatically recognised and the effects, such as updating the civil status 
records, can be initiated without any additional procedure or request being necessary;218 
and 

  There are only a few grounds for which the recognition of judgments may be refused in 
order to ensure that the majority of judgments are recognised without any difficulties.219 
The rules on enforcement are only relevant for matters of parental responsibility, because the 
aspects  of  matrimonial  matters  that  are  covered  by  the  Regulation  do  not  need  to  be 
enforced.220  For  parental  responsibility  matters,  the  Regulation  aims  to  ensure  that  the 
enforcement of judgments, authentic instruments and agreements is as smooth as possible: 

  In  some  cases,  it  is  necessary  for  citizens  to  apply  to  a  court  that  can  ‘declare  a 
judgment enforceable’. With such a declaration, a judgment can then be implemented in 
practice.  The  Regulation  streamlines  this  procedure  to  ensure  that  it  is  as  fast  as 
possible and that most judgments will be enforced due to a limited number of grounds 
for refusing enforcement;221 and 

  For  specific types of decision,  including  on rights  of access and specific decisions on 
the return of the child, intermediate proceedings on enforcement have been abolished. 
These decisions are thus immediately enforceable on the basis of a certificate issued by 
the court that is responsible for the judgments.222 

216 The Tampere European Council, which took place before the adoption of the Regulation in 1999, underlined that certain 
judgments on family matters should be automatically recognised throughout the Union without any intermediate proceedings 
or grounds for refusal of enforcement’.(see http://www.europarl.europa.eu/summits/tam_en.htm) 
217 See Recitals (22) - (24).  
218 Article 21.  
219 Articles 22 and 23.  
220 Other aspects that might be related to a divorce or legal separation and that might need enforcement are, for example, 
decisions on the property of spouses or assets. These aspects are not covered by the Regulation. 
221 Chapter III, Section 2 of the Regulation.  
222 Chapter III, Section 4 of the Regulation. 

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The evidence collected as part of this study suggests that the Brussels IIa Regulation has made it 
easier for citizens to have judgments recognised and enforced across borders. Administrative costs 
related to procedures for recognition and enforcement of judgments (e.g. court fees, legal advice, 
costs for submission of documents) and delays related to lengthy procedure for the recognition and 
enforcement have been reduced. Most stakeholders consider that the automatic recognition of all 
judgments and the abolition of intermediate proceedings on enforcement (exequatur) for most 
judgments are very valuable improvements introduced by the Brussels IIa Regulation. In addition, 
the fact that there are only few grounds for refusing the recognition or enforcement of a judgment is 
welcomed. The national experts and practitioners consulted could identify no or few cases, where 
the recognition of a judgment was refused and indicated that the majority of judgments are 
recognised.  

However, some issues remain and lead to situations in which citizens still need to go through 
intermediate proceedings to have judgments recognised or enforced. This is associated with 
additional costs, delays and stress for citizens. While data on costs and delays in proceedings are 
scarce, it is estimated that the costs of exequatur proceedings that are not appealed is around EUR 
1,000. Where they are appealed, the associated costs are higher.223 As far as potential delays in the 
proceedings are concerned, data on the Brussels I Regulation shows that the average duration of 
exequatur proceedings ranges from one week in Austria to up to seven months in Greece. In general, 
however, the majority of delays in legal procedures occur where one of the parties appeals. The 
average length of such appeal procedures ranges from one to two months in England and Wales to 
up to three years in Malta.224 On this basis, citizens face stress because they need to put additional 
effort into having their judgments recognised or enforced, and cannot be certain of the outcome. In 
cases related to matters of parental responsibility, the delays can also negatively affect the well-
being of the child (cf. the introduction to the specific objective 5 “Well-being of the child and parent-
child relationship”).  

The main legal issues that affect this specific objective and the associated problems for citizens are 
discussed in the table below.  

Table 5: High-priority legal issues under specific objective 3 “Smooth recognition and enforcement 

of judgments, authentic instruments and agreements” 

High-priority legal issues 

Specific objective 3: Smooth recognition and enforcement of judgments, authentic 
instruments and agreements 

Hearing of the child and its representation in court 
Inconsistent practices 
across Member States 
related to the hearing of 
the child in parental 
responsibility 

As discussed further under specific objective 5 “Well-being of the child and parent-
child relationship”, the Regulation is based on the principle that in cases involving a 
child, that child’s views are to be taken into account.225  
In particular, it is possible for Member States to refuse to recognise or enforce a 
judgment226 on the grounds that the child was not given an opportunity to be 

223 These estimates are based on the 2007 Study on the Transparency of Costs of Civil Judicial Proceedings in the European 
Union (available at: https://e-justice.europa.eu/content_costs_of_proceedings-37-en.do) and on Expert judgment. 
224  This  is  based  on  European  Commission;  Commission  Staff  Working  Paper  SEC(2010)  1547  final  (http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2010:1547:FIN:EN:PDF).  
225 Recital (19), Brussels IIa Regulation.  

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proceedings and return 
procedures (leading to 
difficulties related to the 
recognition and 
enforcement of 
judgments)  
Recognition and enforcement 
Different interpretations 
of the term ‘recognition’ 
leading to differing 
practices as to which 
judgments require a 
declaration of 
enforceability 

heard.227 The fact that the assessment of whether a child should be heard in a specific 
case (and how) may differ from court to court228 has led to several cases where the 
recognition of a judgment was refused based on the fact that the child was not given 
an opportunity to be heard and make his/her views known in an effective way. This 
causes delays and stress.  

As outlined in the Commission’s application report on the Regulation and supported 
by the stakeholders we consulted, there is currently no uniform interpretation of the 
term ‘recognition’.229 Practitioners appear to have difficulties in distinguishing 
between the terms recognition, enforceability and enforcement. Although 
recognition should be automatic based on the Regulation, this is sometimes not 
understood with respect to cases on matters of parental responsibility. Therefore, 
certain Member States may require a declaration of enforceability of a decision 
before it can be enforced whilst others recognise decisions automatically.  
This has implications for the question whether citizens can benefit from the 
automatic recognition of the decision or if they need to initiate proceedings in order 
to have the decision recognised. For example, where a person is appointed as the 
guardian of a child by a Member State court and this guardian requests the delivery 
of a passport in another Member State, practices vary depending on the Member 
State. Some Member States only require the recognition of the judgment attributing 
the guardianship, whilst others consider that issuing the passport is an enforcement 
act and thus require citizens to go through intermediate proceedings (a declaration of 
enforceability of the guardianship decision) before the passport can be issued.230 
Additional proceedings may thus need to be initiated, depending on the Member 
State concerned. Citizens may face costs and delays associated with such procedures 
(cf. the introduction of this section).  

Exequatur proceedings 
are still in place for some 
types of judgments 

The fact that there are still intermediate procedures for declaring some kinds of 
judgments enforceable hinders the smooth enforcement of judgments. Several 
national experts and practitioners regretted this.231 Although such proceedings are a 
way of exercising control, e.g. on whether a judgment is indeed in line with the best 
interests of the child, this controlling function is applied only to a limited extent, 
because in some Member States the enforcement of judgments is not decided on by 
judges, but rather by administrative personnel at courts or authorities. However, such 
proceedings cause problems with smooth enforcement by creating significant costs 
and delays for citizens, because there are still administrative formalities and judicial 
procedures to go through. As explained in the introduction to this section, delays can 
be quite significant depending on the Member State and circumstances of the case. 
There are many factors that hinder the expeditious conduct of such proceedings in 
the Member States. Obtaining the documents and, in particular, translations can take 
a long time. 

226 A comprehensive analysis of this issue can be found in the section Inconsistent practices across Member States related to 
the hearing of the child in parental responsibility proceedings and return procedures (leading to difficulties related to the 
recognition and enforcement of judgments) in Annex 1. 
227 For example, if the judgment is considered to have been “given, except in case of urgency, without the child having been 
given  an  opportunity  to  be  heard,  in  violation  of  fundamental  principles  of  procedure  of  the  Member  State  in  which 
recognition is sought”, Article 23(b). See also Article 41(2)(c), Article 42(1)(a) Brussels IIa Regulation.  
228  Examples  of  points  where  the  assessment  of  two  courts  have  differed  as  to  if  and  how  a  child  should  be  heard  are 
provided under specific objective 5 “Well-being of the child and parent-child relationship”. 
229 A comprehensive analysis of this issue can be found in section Decisions on matters of parental responsibility are often 
enforced late or not at all due to the use of inefficient means for enforcement or because judgments are reviewed at the stage 
of enforcement in Annex 1. 
230 COM(2014) 225 final, p. 10.  
231 A comprehensive analysis of this issue can be found in the section Exequatur proceedings are still in place for some types 
of judgments in Annex 1. 

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Decisions on matters of 
parental responsibility 
are often enforced late 
or not at all due to the 
use of inefficient means 
for enforcement or 
because judgments are 
reviewed at the stage of 
enforcement 

Some decisions on parental responsibility are never enforced due to practical 
obstacles during enforcement procedures.232 First, delays can ensue at the stage of 
enforcement proceedings. In particular, it was reported that the substance of 
judgments is sometimes reviewed at this stage. This is not in line with the Regulation, 
as Article 31(3) states that under no circumstances may a judgment be reviewed as to 
its substance. In addition, appeals concerning a declaration of enforceability can 
cause significant delays if they suspend enforcement. Second, delays may ensue due 
to a lack of resources in the Member State or because the parties involved, which 
could be court bailiffs, public social or welfare authorities, law enforcement 
authorities or other parties such as psychologists or mediators, are not cooperating 
effectively. For citizens involved in cross-border cases on parental responsibility, this 
is a factor of uncertainty, as they cannot be sure whether a judgment will eventually 
be enforced. If a judgment is not enforced, the efforts put into the legal disputes will 
have been in vain. In addition, there are implications for the well-being of the child 
and the parent-child relationship, e.g. if the stressful status of uncertainty about the 
arrangements of parental responsibility is prolonged.  

As discussed further under specific objective 5 “Well-being of the child and parent-
child relationship”, particular obstacles hindering the actual enforcement of 
judgments233 were reported with regard to the return of the child in cases of child 
abductions (where one of the parents moves abroad with the child without the other 
parent’s consent).  

Provisions specific to child abduction cases 
Return orders are often 
enforced late or not at 
all due to the use of 
inefficient means for 
enforcement or because 
of misapplication of the 
Regulation and 
reservations against the 
content of decisions 
Information and awareness 
Practitioners are not 
sufficiently aware of the 
Regulation, leading to 
the misapplication of 
certain provisions of the 
Brussels IIa Regulation 

As discussed further under specific objective 2 “Predictability, clarity, and reliability 
for citizens involved in cross-border cases”, there is a lack of awareness about the 
Regulation among practitioners. While the (automatic) recognition of judgments in 
matrimonial matters and cases of parental responsibility functions well in practice, 
some practical issues, covering both matrimonial matters and matters of parental 
responsibility, were identified. These relate in particular to ambiguities that have led 
to the Regulation being applied wrongly in the past. For example, ambiguities exist 
with respect to the recognition of judgments: As noted above, the recognition of 
judgments and the updating of civil status documents should function automatically. 
However, in some Member States the provisions stipulating that recognition should 
be automatic234 are interpreted differently way or not understood properly by the 
judges or public authorities responsible. As a consequence, there have been cases 
where citizens had to produce additional documents to have a judgment recognised, 
although this was not in line with the Regulation. Sometimes, such documents, which 
stem from a different Member State, also need to be translated to be considered 
valid. Thus, additional costs were incurred and the citizens faced delays as well as 
additional stress.  

232 A comprehensive analysis of this issue can be found in section Decisions on matters of parental responsibility are often 
enforced late or not at all due to the use of inefficient means for enforcement or because judgments are reviewed at the stage 
of enforcement in Annex 1. 
233 A comprehensive analysis of this issue can be found in the section Problems regarding the actual enforcement of return 
orders in Annex 1. 
234 These include in particular Article 21.  

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Protection of the economically weaker spouse 

How is the topic important for citizens? 
In the particularly stressful times of divorce or separation, or becoming adversaries in a parental responsibility 
case, the economically weaker spouse could be especially affected (in addition to children, discussed under the 
separate specific objective 5). It is relevant in this regard that the Charter of Fundamental Rights of the European 
Union235, in its Article 47 (Right to an effective remedy and to a fair trial) stipulates that “legal aid shall be made 
available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to 
justice.” 
How does the Regulation address this topic? 
The Brussels IIa Regulation contributes to the protection of the economically weaker spouse through clear and 
fair rules on jurisdiction, and recognition and enforcement in international disputes on matrimonial matters 
and matters of parental responsibility.236 Such rules impede attempts to exploit the vulnerabilities of the 
economically weaker spouse, notably his/her relative difficulty in accessing professional legal advice. 
Furthermore, Article 50 of the Brussels IIa Regulation aims to ensure that Member States provide legal aid to 
those who need it in relation to some particularly important recognition and enforcement procedures237 
foreseen in the Regulation. 

While the existing provisions on legal aid and the improved legal certainty and clarity for citizens (as 
compared to the situation before the enactment of the Regulation)238 have contributed to the 
protection of the economically weaker spouse, a series of legal issues are still leading to situations 
where disadvantages persist. These legal issues are discussed in more detail in the table below.  

Table  6:  High-priority  legal  issues  under  specific  objective  4  “Protection  of  the  economically 

weaker spouse” 

High-priority legal issues 
Jurisdiction rules 
Potential for ‘rush to 
court’/’forum shopping’ 
on the basis of the 
alternative grounds of 
jurisdiction 

Specific objective 4: Protection of the economically weaker spouse 

The jurisdiction rules of the Brussels IIa Regulation239 that allow for alternative 
grounds of jurisdiction, i.e. alternative possibilities on which courts are competent, 
have led to instances in which the spouses tried to beat each other in filing a claim in 
the Member State in which they expect the outcome will be most favourable to them 
(i.e. the so-called “rush to court” or “forum shopping” phenomenon).240 Typically, 
specialised legal advice is needed to take full advantage of the alternative grounds 
of jurisdiction (and rush to court/forum shopping) – a situation that may put the 
economically weaker spouse at a disadvantage, given that they may not be able to 
afford such advice.241 Indeed, rush to court/forum shopping is mainly exploited by 

235 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:en:PDF   
236 In this regard, please also refer to the analysis regarding the specific objective “Predictability, clarity, and reliability for 
citizens involved in cross-border cases” of the Brussels IIa Regulation. 
237  Article  21  (Recognition  of  a  judgment),  Article  28  (Enforceable  judgments),  Article  41  (Rights  of  access),  Article  42 
(Return of the child), Article 48 (Practical arrangements for the exercise of rights of access). 
238  A  comprehensive  analysis  can  be  found  in  the  sections  “Jurisdiction  rules”  and  “Support  to  citizens  in  cross-border 
proceedings by Central Authorities” in Annex 1 
239 Notably Articles 3 and 19 of the Brussels IIa Regulation. 
240  A  comprehensive  analysis  of  this  issue  can  be  found  in  the  section  Potential  for  rush  to  court/forum  shopping  on  the 
basis of the alternative grounds of jurisdiction in Annex 1. 
241 N. A. Baarsma, The Europeanisation of International Family Law (Asser Press: 2011) 154 

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The current jurisdiction 
rules do not sufficiently 
promote a common 
agreement between 
spouses 

Different interpretations 
of the term ‘habitual 
residence’ 

wealthy spouses, who take advantage of legal advice to determine which court would 
entail the most advantageous outcome for them.242 
The jurisdiction rules of the Brussels IIa Regulation currently do not provide for a 
possibility for spouses to choose the competent court by common agreement (choice 
of court).243 This can prevent couples having their divorce proceedings in the Member 
State of their common choice. That makes it impossible to conclude agreements that 
could protect the economically weaker spouse from a rush to court/forum shopping 
in case of divorce (by predetermining the jurisdiction by common agreement). On the 
other hand, several stakeholders and respondents to the public consultation noted 
that choice of court agreements could be misused in a way that placed the 
economically weaker spouse at a disadvantage as they might not be able to assess 
the consequences of agreeing to choose a certain jurisdiction. However, the EU 
legislator has already concluded in other family law instruments (such as the Rome III 
Regulation and the Maintenance Regulation) that choice-of-court agreements are 
overall beneficial for parties in cross-border proceedings. The absence of the 
possibility of choosing a court in divorce proceedings is therefore not in line with 
more recent EU instruments. 
As discussed further under specific objective 5 “Well-being of the child and parent-
child relationship”, the vagueness of the concept of habitual residence of the child 
has in some cases led to prolonged disputes about jurisdiction for cases of parental 
responsibility matters.244 In such cases, the economically weaker spouse may be at a 
disadvantage by not being able to afford the necessary legal advice and 
representation to defend his/her interests adequately. 

Support to citizens in cross-border proceedings by Central Authorities 
The use of mediation is 
currently not promoted 
to a sufficient extent 

The Central Authorities are required to contribute to the facilitation of an agreement 
between the parents, for example, through mediation (this is specified in Article 55 
(e))245. While the effectiveness and efficiency of mediation as an alternative conflict 
resolution mechanism in international cases of matrimonial matters and parental 
responsibility is widely acknowledged246, its potential is currently not fully exploited, 
because it is not promoted to a sufficient extent.247 In general, it is regrettable that 
the recommendation for the use of mediation in the Brussels IIa Regulation is limited 
to a sub-item of Article, suggesting that the recommendation is of low importance. In 
addition, a number of specific weaknesses of the content of Article 55 (e) were 
identified that have led to an insufficient take-up and promotion of mediation in the 
Member States: 

  The connection to the Mediation Directive (Directive 2008/52/EC on certain 
aspects  of  mediation  in  civil  and  commercial  matters)  is  not  highlighted  in 
the Brussels IIa Regulation; 

  At EU level, there is no complete overview of certified mediators specialised 
in  international  cases  of  matrimonial  matters  and  parental  responsibility. 

242 Many interviewees and a majority of the respondents to the European Commission’s public consultation (70%) believed 
that Brussels IIa does not sufficiently prevent rush to court/forum shopping behaviour in matrimonial matters. 
243 A comprehensive analysis of this issue can be found in the section Jurisdiction rules applicable to matrimonial matters, 
sub-section The current set-up of jurisdiction rules does not sufficiently promote a common agreement between spouses in 
Annex 1. 
244  See  Article  8  Brussels  IIa  Regulation.  A  comprehensive  analysis  of  this  issue  can  be  found  in  the  section  Different 
interpretations of the term ‘habitual residence’ in Annex 1.  
245  A  comprehensive  analysis  of  this  issue  can  be  found  in  the  section  The  use  of  mediation  is  currently  not 
promoted to a sufficient extent in Annex 1. 
246 The potential effects of mediation were underlined by the majority of stakeholders consulted for this study 
and  were  recently  acknowledged  in  a  study  carried  out  by  the  European  Parliament  (available  under: 
http://www.europarl.europa.eu/studies  ).  We  note  here  that  the  effectiveness  of  mediation  depends  on  the 
willingness of the parents to agree on a compromise in an amicable setting.  
247  A  comprehensive  analysis  of  this  issue  can  be  found  in  the  section  The  use  of  mediation  is  currently  not 
promoted to a sufficient extent in Annex 1. 

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Such  a  list  has  already  been  prepared  by  some  Member  States,  such  as 
France,  and  is  a  recommended  practice  of  the  Hague  Conference  Good 
Practice Guide on Mediation248; 
Judges do not always inform the parties at the beginning of the proceedings 
about the possibility of mediation; and 

  There  are  ambiguities  about  the  mutual  recognition  rule  for  mediation 
agreements  across  all  Member  States,  as  this  is  not  explicitly  dealt  with  in 
the Regulation. 

Based on the input received from some stakeholders consulted, it also appears that 
European Commission support for the practical implementation of Article 55 (e) – e.g. 
through the funding of training, certifications and awareness raising campaigns – is 
currently insufficient in scale in order to effectively promote mediation in 
international case of matrimonial matters and parental responsibility. 
These insufficiencies affect citizens, who cannot benefit from the use of mediation. 
Mediation is generally less costly for the parties involved than traditional court 
proceedings. Moreover, a solution found under mutual agreement is often more 
acceptable and satisfying for the parties than a decision taken by a judge. Thus, 
citizens currently face additional costs and delays that could potentially be reduced 
through mediation. This can be considered of particular relevance for economically 
weaker spouses, who could benefit from the support of a mediator who tries to 
establish a solution that is acceptable for both parties. As regards parental 
responsibility proceedings, mediation can help to improve the well-being of the 
child and the parent-child relationship. If parents are striving to find an amicable 
solution, this is less stressful for the child, e.g. because he/she does not need to take 
sides. Furthermore, agreements that have been reached through mediation are often 
longer lasting and more sustainable compared to agreements reached before courts, 
because the mediator tries to ensure that all the arguments and perspectives are 
taken into account. Thus future conflicts may potentially be avoided.249  

Well-being of the child and parent-child relationship 

How is the topic important for citizens? 
Children can be considered as a particularly vulnerable group in the context of cross-border family disputes, 
including divorces that involve children as well as all cases on matters of parental responsibility. All (national and 
international) cases of separation or divorce of the parents are very stressful and emotional for children, who are 
often caught up in the conflict between the parents, have to cope with the absence of one of the parents, have 
to get used to new living arrangements and may face economic hardship.250 If such conflicts involve different 
countries, these factors can be magnified. It is possible that the child will need to move to a different country, 
and solutions on visiting rights will be more difficult to find and implement in practice. Children are often 
powerless in such situations. Children involved in international abduction cases (where one of the parents moves 
abroad with the child without the other parent’s consent) may face additional stress because the act of abruptly 
taking the child from his/her surroundings can have traumatising effects and the ensuing conflicts are usually 
very confusing for children.  
The importance of the well-being of the child is recognised in the Charter of Fundamental Rights of the European 
Union251. Article 24 of the Charter stipulates in general terms that the well-being of children is to be ensured by 

248 HCCH (2012): Mediation – Guide to Good Practice under the Hague Convention of 25 October 1980 on the 
Civil Aspects of International Child Abduction, http://www.hcch.net/upload/guide28mediation_en.pdf 
249 This was explained during an interview with a mediator. This point is supported, for example, by Robert E. 
Emery, ‘Renegotiating Family Relationships: Divorce, Child Custody, and Mediation’, 2012. 
250 Robert E. Emery, ‘Renegotiating Family Relationships: Divorce, Child Custody, and Mediation’, 2012;  
 By  Paul  R.  Amato,  Professor  for  Sociology  in  Journal  Children  and  Divorce  Volume  4  Number  1  Spring/Summer  1994, 
http://futureofchildren.org/publications/journals/article/index.xml?journalid=63&articleid=415&sectionid=2841  
251 http://www.europarl.europa.eu/charter/pdf/text_en.pdf  

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providing the protection and care they need. It stipulates in regard to legal actions that concern children, thus 
including proceedings on matters of parental responsibility, that the child’s view must be taken into 
consideration. Furthermore, any action by public or private institutions is to be based on the best interests of the 
child. Finally, it specifies that the parent-child relationship should be protected. In particular, children must have 
the right to maintain contact with both parents, unless this is not in line with their interest.252  
How does the Regulation address this topic? 

The  Brussels  IIa  Regulation  puts  particular  emphasis  on  ensuring  the  respect  for  the 
fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of 
the EU.253 On this basis, several principles and mechanisms were introduced to ensure the well-
being of the child:  

  The  Regulation’s  rules  on  jurisdiction,  i.e.  the  rules  that  decide  where  a  case  will  be 
handled, are based on the principle that a case should be handled in the Member State 
with  which  the  child  has  the  closest  connection.  This  means  that  the  court  in  the 
Member  State  where  the  child  lives  (or  is  ‘habitually  resident’)  will  by  default  be 
responsible, reflecting the criterion of proximity.254 In addition, the Regulation allows 
for  some  limited  flexibility  to  ensure  that  all  cases  can  be  handled  in  the  most 
appropriate  court,  even  if  this  might  not  be  in  the  Member  State  where  the  child 
habitually lives.255  

  Should  one  parent  take  the  child  to  another  Member  State  without  the  other  parent’s 
consent,  the  Regulation  aims  at  ensuring  that  the  child  is  returned  as  quickly  as 
possible.  

  The  Regulation  establishes  a  mechanism  for  the  cooperation  between  and  support  of 
Central Authorities, with the aim of improving the handling of cases related to parental 
responsibility.  

  The  Regulation  is  based  on  the  principle  of  requiring  that  the  child’s  views  be  taken 
into  account  in  cases  concerning  it.256  It  is  possible  for  Member  States  to  refuse  to 
recognise  or  enforce  a  judgment  on  the  grounds  that  the  child  was  not  given  an 
opportunity  to  be  heard.257  In  addition,  the  Regulation  explicitly  stipulates  the 
requirement for a child to be heard in child abduction cases.258 

In general terms, the evidence collected as part of this study suggests that the Brussels IIa Regulation 
has increased the extent to which the well-being of the child is safeguarded in cross-border cases. In 
particular, various stakeholders welcomed the provision in the Regulation of clear rules on 
jurisdiction that ensure that a case is handled in a Member State with which the child has a close 

252  It  can  be  noted  in  general  terms  that  the  interpretation  of  the  “best interest  of  the  child”  varies significantly across 
countries, as pointed out by several interviewees. In addition, where the child is heard, the interpretation of what actually is 
in  “best  interests  of  the  child”  also  depends  significantly  on  the  competence  of  the  psychologist,  social  worker  or  judge 
responsible.  Several  interviewees  highlighted  the  difficulty  of  assessing  what  is  best  for  the  child  or  for  the  parent-child 
relationship.  
253 See also Recital (33) Brussels IIa Regulation.  
254 Article 8. See also Brussels IIa Regulation, Recital (12).  
255 Article 12 provides holders of parental responsibility with the possibility of choosing a more suitable court under certain 
circumstances.  Furthermore,  the  Regulation  provides  for  a  possibility  of  transferring  a  case  or  part  of  a  case  to  another 
Member State if the latter is better placed to hear it and the transfer reflects the best interests of the child (Article 15).  
256 Recital (19), Brussels IIa Regulation.  
257 For example, if it considered that the judgment “was given, except in case of urgency, without the child having been given 
an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is 
sought”, Article 23(b). See also Article 41(2)(c), Article 42(1)(a) Brussels IIa Regulation.  
258  Article  11(2)  Brussels  IIa  Regulation:  „When  applying  Articles  12  and  13  of  the  1980  Hague  Convention,  it  shall  be 
ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having 
regard to his or her age or degree of maturity“. 

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connection. In addition, the involvement of the Central Authorities was considered to have 
contributed to a smoother handling of cases related to matters of parental responsibility.  

However, a number of difficulties were identified that have negative consequences on this specific 
objective. While the concrete effects depend on the legal issues, some general remarks deserve to 
be made with respect to the negative effects of delays. Delays during proceedings or at the stage of 
recognition/enforcement prolong the time for which the child is affected by the conflicts between 
the parents and finds itself in circumstances that are unstable. Indeed, the child may not know 
where he/she will eventually live and how often he/she will see the parent who lives elsewhere. 
Moreover, contact with one of the parents may be hindered, in particular in relation to child 
abduction cases.  

The main legal issues that affect this specific objective are discussed in the table below.  

Table  7:  High-priority  legal issues  under  specific  objective  5  “Well-being  of the  child  and  parent-

child relationship” 

High-priority legal issues 
Jurisdiction rules 
Different interpretations 
of the term ‘habitual 
residence’ 

Specific objective 5: Well-being of the child and parent-child relationship 

The jurisdiction rules of the Regulation for matters of parental responsibility are 
based on the criterion of proximity, which means that jurisdiction by default lies with 
the Member State of habitual residence of the child. In most cases, this is considered 
to be the Member State with the closest connection to the child.259 However, the 
criterion of proximity is undermined due to difficulties relating to the concept of 
‘habitual residence’. There are, firstly, difficulties in determining the court 
responsible and, secondly, situations in which a court is responsible that is not best 
placed to deal with a case. More specifically, while the place of habitual residence of 
the child is the main factor that determines where a case will be dealt with, it is in 
some cases very difficult to establish where the child has its habitual residence,260 it 
is in some cases very difficult to establish where the child has his/her ‘habitual 
residence’,261 because there is no definition of the concept. Based on existing case-
law262, the concept of ‘habitual residence’ is considered as often allowing for different 
conclusions. Particular challenges exist in complex cases, including in particular in the 
following situations:  

  The child moved back and forth between two or more Member States.263 It 
could be that the time between the countries is not equally divided or that 
the child spends an equal amount of time in two countries.  

  The  child’s  living  situation  changes  while  the  proceedings  are  already 

ongoing.264 

259 Recital (12) Brussels IIa.  
260  See  Article  8  Brussels  IIa  Regulation.  A  comprehensive  analysis  of  this  issue  can  be  found  in  the  section  Different 
interpretations of the term ‘habitual residence’ in Annex 1.  
261  See  Article  8  Brussels  IIa  Regulation.  A  comprehensive  analysis  of  this  issue  can  be  found  in  the  section 
Different interpretations of the term ‘habitual residence’ in Annex 1.  
262 Next to several national cases identified by our network of legal experts, this issue was also referred to the 
ECJ at different occasions, including in particular the cases  Mercredi v Chaffe (C-497/10 PPU) and Re A (C-
523/07). Further details relating to the relevant case-law can be found in in the section Different interpretations 
of the term ‘habitual residence’ in Annex 1. 
263  For  example,  in  one  case,  a  Belgian  court  was  faced  with  a  situation  where  a  one-year-old  child  born  in 
Belgium  had  been  moving  back  and  forth  between  England  and  Belgium  with  his  mother  as  the  two  parents 
divided  their  time  between various  residences.  According to  the  Belgian  national  expert,  this  case reveals  the 
delicate nature of the assessment to be carried out. 

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  Parents have concluded an amicable agreement about the residence of the 
child.  Such  agreements  are not  directly  covered  by  the  jurisdiction  rules  of 
the Regulation.  

Although the ECJ has provided guidelines on the application of the principle, these 
are not always applied properly by the courts in the Member States. All the different 
groups of stakeholders consulted reported difficulties in establishing the child's 
habitual residence. These were regarded by many as one of the most severe 
challenges related to the application of the Regulation. It was reported by 
practitioners that there are cases where the habitual residence of the child is debated 
at length in the proceedings, thus leading to undue delays in some cases. Sometimes, 
appeals were based solely on the (potentially incorrect) determination of habitual 
residence. The ensuing delays prolong the situation in which the arrangements 
relating to parental responsibility remain unresolved. This is detrimental to the 
objective of ensuring the well-being of the child, as it prolongs a situation that is 
very stressful for the child. In addition, in some cases the fact that the determination 
of custody and access rights is pending might prevent or complicate contact between 
the child and the parents. In such situations, the parent-child relationship may suffer 
as well.  
Additionally, in some cases, the lack of guidance on the concept of ‘habitual 
residence’ has in the end led courts to accept jurisdiction when they were in fact not 
best placed to hear a case.265 If proceedings are held in a Member State that is not 
the centre of the child’s life, the child may have to travel during proceedings, there 
may be delays in collecting evidence, and the court that has jurisdiction may not be 
able adequately to take the circumstances in the Member State where the child 
actually lives into account. 
As discussed further under specific objective 1 “Access to court for citizens in 
international families with a close connection to the EU”, the absence of a “forum 
necessitatis” in the Brussels IIa Regulation in combination with the reliance on (non-
harmonised) national rules for establishing residual jurisdiction may lead to 
situations where children who are EU citizens and have their habitual residence in a 
third country are not granted access to a court in the EU. Proceedings in a third 
country could be more difficult to hold and thus more stressful. For example, if the 
family does not speak the language of the relevant country fluently, it may be more 
difficult to take the views of the child into account, e.g. because an interpreter 
needs to be involved. Where one of the parents lives in the EU and the judgment 
would need to be recognised/enforced in the EU, there might be difficulties and 
delays, as the judgments taken in a third country would not be covered by the 
Regulation. Thus, there may be delays during the proceedings and until a judgment is 
recognised or enforced. During this time, the child may be in a stressful situation, in 
particular because the arrangements on parental responsibility are not resolved (cf. 
introduction to this section).  

Potential exclusion of 
certain people with a 
close connection to the 
EU from access to a 
suitable EU court 

Hearing of the child and its representation in court 
Inconsistent practices 
across Member States 

The provisions of the Regulation currently leave a considerable level of discretion to 

264  For  example,  the  Irish  expert  reported  that  there  were  a  number  of  Irish  cases  and  that  the  approaches 
adopted by the courts were not always consistent. One of these cases was referred to the ECJ (Case C -376/14 
PPU, C v M). Further details can be found in annex 1.  
265 In this regard it is interesting to note that the Regulation provides a possibility to remedy cases in which the responsible 
court is not or no longer considered the most suitable court. More specifically, there is an  option to transfer a case to a 
court that is better suited to deal with a case in light of the best interest of the child (Article 15). However, there was 
consensus among the stakeholders consulted that the current use of the article remains limited in the Member States. It was 
argued that the article is not sufficiently clear, which is why courts are currently hesitant to use it. Thus, there may be cases 
in which  proceedings  are  held  in  a  Member State  that  may not  be  the  most  suitable  in  light of  the  situation  of  the 
child and that the possibility to transfer the case is not made use of. A comprehensive analysis of this issue can be found 
in the section Limited use at present of the possibility to transfer a case and lack of detail as concerns the procedural rules 
in Annex 1. 

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related to the hearing of 
the child in parental 
responsibility 
proceedings and return 
procedures (leading to 
difficulties related to the 
recognition and 
enforcement of 
judgments) 

judges as regards the assessment of when it is considered appropriate to hear a child; 
this is left to the Member States. The national rules and practices on hearing a child 
vary significantly. For example, the age at which a child is considered sufficiently 
mature to represent his/her views ranges from 10 to 15. In some Member States, 
judges also hear children that are much younger (for example 2-3 years old) if they 
deem this appropriate in specific cases.  
Distrust by practitioners towards the rules in other Member States has led to 
reservations and refusals of the recognitions and enforcement of judgments.266 
Indeed, as pointed out above, the different practices and ideas on the hearing of the 
child can hinder the recognition and enforcement of judgments, leading to 
additional stress for children and parents.  
In addition, several interviewees and participants in the expert panel regretted that 
the importance of the hearing relating to all cases on matters of parental 
responsibility is not highlighted in the Regulation in general terms, but only in relation 
to return proceedings. If a judgment is taken without having conducted a hearing of 
the child, there is a danger that the judgment may not take the best interest of the 
child into account to a sufficient extent. 

266  The  national  experts  for  Germany,  Hungary  and  Italy  indicated  based  on  available  national  case  law  that 
doubts relating to the hearing of the child were the main reason why recognition of judgments was refused in the 
past. The Belgian national expert noted that courts in Belgium are quite reluctant to hear children and that this 
has led to recognition issues in Germany, where the standard is stricter (in Germany, courts are obliged to hear 
children who have reached the age of 14 years – subject to a limited number of exceptions – and children under 
the age of 14 have to be heard if the preferences, ties or intentions of the child are of relevance for the decision 
or if a hearing is deemed appropriate for other reasons). The German expert confirmed that German courts have 
refused to recognise judgments on this basis, but specified that the fact that the hearing did not take place before 
a judge but before a psychological expert is not considered a sufficient grounds for non-recognition. The French 
national expert noted that French decisions might not be recognised in a Member State where the hearing of the 
child is more strictly assessed, especially in cases where the child is heard ‘indirectly’ by the French court, i.e. if 
the child does not state his or her views personally but through a third party such as a lawyer. The Slovenian 
national expert referred to a ruling of the Supreme Court of the Republic of Slovenia, in which the Court stated 
that if there was no conversation with a child capable of understanding the meaning of the procedure and the 
consequences, this would be a basis for the refusal of the recognition of a foreign judgment, because  it would 
mean a violation of essential procedural principles of the Slovenian legal order. 

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Different practices 
related to the 
representation of the 
child in court 

The legislation and practices in the Member States with regard to the 
representation of the child in court vary and the provisions in the Regulation are 
not sufficiently clear.267 In particular, differences exist with respect to the situations 
in which a guardian ad litem must be appointed, the persons that can act as guardian 
ad litem, the procedure of appointment and the competences of the guardian ad 
litem.268 In addition, in some Member States269 a guardian ad litem is not appointed in 
parental responsibility proceedings, because children are not considered to be parties 
to parental responsibility proceedings.  The varying practices are a source of legal 
uncertainty for citizens due to a lack of information on these practices.  
In addition, decisions could be appealed based on the fact that appropriate 
representation has not been appointed. Appeal proceedings lead to delays and 
additional costs. The delays affect the well-being of the child and the parent-child 
relationship. As noted before, it will be stressful for the child to endure an uncertain 
situation, in which he/she might potentially be prevented from having contact with 
one parent.  

Recognition and enforcement 
Exequatur proceedings 
are still in place for some 
types of judgments 

As discussed further under specific objective 3 “Smooth recognition and enforcement 
of judgments, authentic instruments and agreements”, the requirement to undergo 
the exequatur procedure for certain types of judgments on parental responsibility 
leads to delays270. Delays can have severe consequences for the child, because of 
uncertainty about the arrangements for parental responsibility. In addition, the 
relationship with the parent who does not live with the child during the period 
during which a decision is not enforced may suffer. 

As discussed further under specific objective 3 “Smooth recognition and enforcement 
of judgments, authentic instruments and agreements”, some decisions on parental 
responsibility are never enforced and thus not implemented due to obstacles at the 
stage of enforcement. For the child, delays or the impossibility to enforce or 
implement decisions can have serious consequences. If a decision is taken formally, 
but not implemented this may be a confusing and stressful situation for the child, as 
he/she cannot be sure what will happen and where he/she will live. 

Decisions on matters of 
parental responsibility 
are often enforced late 
or not at all due to the 
use of inefficient means 
for enforcement or 
because judgments are 
reviewed at the stage of 
enforcement 
Provisions specific to child abduction cases 
Difficulties relating to 
the time limit for return 
(i.e. not clear and not 
effective) 

Cases on the return of the child are to be handled within six weeks. The application 
of this time limit has been identified as being problematic. Two main difficulties 
have been identified: 

  The time limit is not clear. The interpretation of the six-week 
time limit set out in Article 11(3) seems to vary across Member 
States. In particular, it is not clear whether the six weeks refers 
to the time between an application and the final decision, or to 

267 A comprehensive analysis of this issue can be found in the section Different practices related to the representation of the 
child in court in Annex 1. 
268  A  comprehensive  analysis  of  this  issue  can  be  found  in  the  section  Different  practices  related  to  the 
representation of the child in court in Annex 1. 
269  Some  national  experts  (FI,  GR,  IT,  NL,  PL,  UK)  noted  that  the  child  is  not  usually  involved  in  parental 
responsibility  proceedings  and  therefore  does  not  need  representation  (although  there  may  be  a  possibility  to 
appoint a guardian ad litem). In Finland, this is the case for custody and rights of access proceedings. There are 
possibilities for the child to participate in care proceedings.  
270 It is not necessary to go through intermediate procedures for decisions on access rights and certain decisions implying the 
return  of  a  child,  as  outlined  under  specific  objective  3  Smooth  recognition  and  enforcement  of  judgments,  authentic 
instruments and agreements 

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each instance. 

  The  time  limit  is  not  effective.  Only  15%  of  the  applications 
between  Member  States  are  actually  resolved  within  the  six-
week  time  limit.271  Delays  occur,  for  example,  because  not  all 
Member States have introduced suitable structures to ensure that 
the  judges  dealing  with  cross-border  child  abductions  have  the 
necessary  expertise  and  that  cases  can  be  handled  smoothly. 
There  are  indications  that  concentration  of  jurisdiction  (i.e. 
limiting the number of courts that deal with return applications) 
is  a good method for ensuring  that return  applications are  dealt 
with  in  a  more  efficient  manner.272  However,  according  to  the 
Working  Group,  several  Member  States  appear  not  to  have 
implemented concentration of jurisdiction. As a result, judges in 
these  Member  States  are  not  able  to  build  up  the  necessary 
expertise  and  have  less  opportunities  to  receive  specialised 
training,  and  are  therefore  less  efficient.273  A  minority  of 
stakeholders  argues  that  the  time  limit  is  too  short  because  it 
does not allow sufficient room for dealing with a case properly. 
However, it should be noted in this regard that six weeks is also 
considered  to  be  an  adequate  target  in  the  1980  Hague 
Convention. 

Delays in return proceedings can have serious consequences for the well-being of 
the child and the parent-child relationship. While the child is abroad with the 
abducting parent, he/she is separated from his/her regular surroundings, including 
the left-behind parent. Moreover, if too much time passes before the child is 
returned, it may not be in the child’s best interests any longer to return to the original 
place of habitual residence, because the centre of life for the child has already shifted 
to the other country. On the other hand, if a child is not returned, the relationship 
with the left-behind parent is impaired. 

Another problem reported relates to the possible refusal to return the child. The 
return of a child can only be refused if it is not possible to demonstrate that 
‘adequate arrangements’ have been taken to counter any possible risk associated 
with the return.274 The Regulation refers to the steps that may be taken as “adequate 
arrangements to secure the protection of the child after his or her return”. The 
findings of the evaluation suggest that this formulation is currently not clear. Courts 
have a wide margin of discretion when it comes to determining what types of 
protective measures could serve as ‘adequate arrangements’ and how they will be 
examined. The following points appear not to be sufficiently clear:  

Questions on the 
practical application of 
Article 11(4) and 
ambiguity as regards the 
concept of ‘adequate 
arrangements’ under 
that provision 

  According to many national experts, respondents to the public consultation 
and  the 
is  not  clear  what  the  concept  ‘adequate 
arrangements’  entails,  i.e.  which  measures  could  qualify  as  ‘adequate 
arrangements’.   

interviewees, 

it 

271 ’A statistical analysis of applications made in 2008 under the Hague Convention of 25 October 1980 on the civil aspects 
of international child abduction’: http://www.hcch.net/upload/wop/abduct2011pd08ae.pdf 
272  Article  11  Working  Group  practice  guide 
(https://e-justice.europa.eu/content_parental_child_abduction-309-
en.do?clang=en).  The  Article  11  Working  Group  was  initiated  by  the  Central  Authorities  to  compile  and  disseminate 
information  related  to  the  application  of  relevant  provisions  on  child  abductions  in  the  EU,  including  Article  11  of  the 
Brussels IIa Regulation and to identify common practices and standards.  
273  Estonia,  Latvia,  Lithuania,  Poland,  Slovenia  and  Spain.  Article  11  Working  Group  practice  guide  (https://e-
justice.europa.eu/content_parental_child_abduction-309-en.do?clang=en).  See  also  the  section  The  return  procedure  under 
Article 11(1) to 11(5) in Annex 1. 
274 See Article 11(4).  

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  According  to  several 

interviewees  and  respondents  to  the  public 
consultation, there are uncertainties about the procedural steps to be taken 
to  prove  whether  or  not  ‘adequate  arrangements’  are  in  place.  It  is  in 
particular  not  clear,  which  party  has  to  prove  whether  or  not  adequate 
arrangements  are  in  place  and  how  the  communication  between  the 
Member  State  where  the  proceedings  are  held  and  the  Member  States 
where the ‘adequate arrangements’ are to be enforced should function.  
  According to the Central Authorities consulted, the  administrative steps to 
be observed are not always clear. In some Member States, orders refusing 
the return of a child do not directly include the grounds of the refusal, which 
then makes it difficult to identify whether the case falls under Article 11(4) 
and lengthens the procedure. 

These points lead to uncertainty, as it is difficult for the parties to know whether the 
steps taken are sufficient and will thus be recognised as adequate arrangements. In 
addition, these ambiguities can lead to delays if the court does not know how to 
assess the situation and to costs for legal advice for the parties. As outlined above, 
delays can have serious consequences for the well-being of the child and the parent-
child relationship. In addition, the well-being of the child could be endangered if a 
proper test is not carried out. 
Furthermore, in the event the court is not certain that ‘adequate arrangements’ are 
provided for in the Member States of enforcement, it may refuse the return order, 
since a non-return order can be issued whenever it is not possible to establish, within 
six weeks, that ‘adequate arrangements’ have been taken.275 This is in particular the 
case because the procedure currently has to involve court or authorities in both 
Member States. It is not possible for the court in the Member State of abduction to 
order certain protective measures that are considered a condition for the child to 
return safely. Rather, if it is not possible to establish that such conditions are met, e.g. 
because the courts/authorities in the Member State of origin react late, the court 
may refuse the return of the child. Therefore, the difficulties with this provision can 
cause a higher number of refusals of return.  
After a refusal on the return of the child based specifically under Article 13 of the 
1980 Hague Convention, the courts in the Member State of origin can be asked by the 
left-behind parent to examine the question of who has custody over the child once 
again.276 In addition, Article 11(6)-(8) provides a possibility for a new decision on the 
return, which must be taken in the Member State of origin and is directly enforceable 
if certified according to Article 42 of the Regulation.  
The interplay of the initial return procedure and the subsequent hearings on a new 
decision return/on custody may result in a situation that is detrimental to the well-
being of the child. The evaluation has identified several difficulties and shortcomings 
with respect to these provisions.  
First, there are ambiguities related to the application of the article, which lead to 
delays. It is not clear whether it is possible to refer the question of custody to a court 
that is specialised in return proceedings instead of the court that was previously 
seised for parental responsibility proceedings. In general terms, specialisation of 
courts can contribute to a faster handling of return cases, as mentioned in the 
previous sub-section and the ECJ has recently rules that this is in principle possible 
also for hearings under Article 11(6)-(8).277 Another practical problem relates to the 

The system stipulated in 
Article 11(6) to (8) may 
endanger the well-being 
of the child if a child is 
returned in spite of a risk 
that has been 
established in the return 
proceedings and possibly 
after a long time has 
passed   

275 The Maltese national expert indicated that this is the reason that in spite of the stricter rules contained in 
the Regulation, Maltese courts have nevertheless issued a number of non-return orders. This was also noted 
by  Eppler,  J.  (Forthcoming):  Grenzüberschreitende  Kindesentführung  –  Zum  Zusammenspiel  des  Haager 
Kindesentführungsübereinkommens  mit  der  Verordnung 
(EG)  Nr.  2201/2003  und  dem  Haager 
Kinderschutzübereinkommen, Dissertation to be published by Peter Lang GmbH. 
276 See Article 11(6) to (8).  
277 This question was posed to the ECJ in Case C-498/14, David Bradbrooke v Anna Aleksandrowicz.  

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transmission of documents to the original court which is prescribed in Article 11(6): 
whenever a court issues a non-return order, related documents including a copy of 
the judgment and a transcript of the hearing must be sent to the responsible court in 
the Member State of origin. It is currently not clear, which parts of these documents 
must be translated and by whom.  
Second, there are several practical difficulties related to the application of the article. 
Extensive delays occur since the court of origin decides on custody or on a new 
return order, while the child and one of the parents are in another Member State. 
Under these circumstances it is often very difficult to organise hearings, because the 
child and the abducting parent have to travel to participate in a hearing. This is 
particularly difficult to organise if the abducting parent is not cooperating, which is 
likely because he/she may be afraid that the court in the Member State of origin 
favours the other parent. There are no prescribed procedures to deal with such 
situations. In practice, such cases have been resolved by persuading the parent or by 
conducting the hearing in the other country. However, this had to be paid for by the 
parties and was, therefore, associated with additional costs and delays. On this basis, 
such hearings can take years in some cases. Based on these delays, an eventual 
return of the child may risk taking the child from the new surroundings, which he/she 
has grown accustomed to in the meantime and may thus have severe consequences 
for the well-being of the child. In addition, for the time such custody hearings are 
being carried out, the child has to live with the uncertain and stressful situation of 
not knowing where he or she will eventually live. It also appears that courts do not 
in all cases take sufficient account of the reasons why a return was initially refused. 
Article 11(8) gives the court in the Member State of origin the possibility to order the 
return of the child, although the court in the Member State of abduction came to the 
conclusion that a return would endanger the well-being of the child. If the court in 
the Member State where the child was present decided to refuse the return of the 
child, but the court in the Member State of origin decides that the child should be 
returned nevertheless, this can have negative consequences for the well-being of 
the child. Finally, Central Authorities are not equally involved in such hearings, 
although they could potentially support the application of these provisions.  
Finally, it can be questioned whether the provisions are at all useful. In fact, 
numerous stakeholders doubted the usefulness of these provisions, criticising that a 
decision on custody taken by the court of origin after proceedings on the return of 
the child are completed can potentially overrule the initial decision. Firstly, they have 
criticised that this can endanger the well-being of the child if courts do not take 
sufficient account of the reasons why a return was refused (cf. second bullet point 
above). In addition, parents may have to follow unnecessarily lengthy proceedings, 
first in the Member State where the child was abducted to, and then in the Member 
State of origin. The results of the second part of the procedure may render the first 
part of the procedure meaningless. This can antagonise parties, which may cause 
additional stress for the child. 
The evidence collected for this study indicates that there are significant shortcomings 
relating to the enforcement of return orders. Indeed, the actual enforcement of 
return orders is considered by many respondents to the public consultation, 
interviewees, national experts and participants in the expert panel as one of the most 
problematic areas related to enforcement.278 The procedures and means of 
enforcement differ across Member States and delays are common. In some Member 
States, enforcement procedures can take over a year as enforcement courts re-
examine the initial decision that implied the return of the child. This is not in line with 
the objectives of the Regulation. There are several factors that can contribute to 
delays. Sometimes, enforcement can be hampered because the parent who abducted 

Return orders are often 
enforced late or not at 
all due to the use of 
inefficient means for 
enforcement or because 
of misapplication of the 
Regulation and 
reservations against the 
content of decisions 

278 A comprehensive analysis of this issue can be found in the section Return orders are often enforced late or not at all due 
to the use of inefficient means for enforcement or because of misapplications of the Regulation and reservations against the 
content of decisions in Annex 1. 

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the child and the child are in hiding and the authorities are not able to locate them. In 
terms of the actors involved, it is regretted that Central Authorities are not involved 
to a sufficient extent because they could positively facilitate enforcement due to their 
experience with abduction cases and their involvement in the main proceedings. In 
addition, the coordination between the different parties involved does not always 
function properly. This can lead e.g. to a situation in which the parties involved are 
not informed of a risk relating to the child’s well-being. Moreover, as there is no 
mechanism for ensuring a high level of competence to the same extent in all cases, 
there may be cases where enforcement is more stressful than it needs to be, e.g. 
because there is nobody with psychological expertise. Finally, in some cases it is not 
ensured to a sufficient extent that the child is prepared for the reunion with the left-
behind parent.  
Criticism was voiced in this regard that the Regulation does not include more detailed 
guidelines as to how expeditious enforcement can be achieved, e.g. through the 
involvement of Central Authorities. In addition, the lack of effective sanctions for 
non-compliance (i.e. if judgments are never enforced) was criticised by respondents 
to the public consultation, interviewees and participants in the expert panel. The 
delays have severe consequences for the well-being of the child and the parent-
child relationship. 

Support to citizens in cross-border proceedings by Central Authorities 
Rules relating to the 
obligation for Central 
Authorities to collect 
and exchange 
information on the 
situation of the child 
that are not specific 
enough, and thus cause 
practical problems 

The  Central  Authorities  are  responsible  for  the  collection  and  exchange  of 
information  on  the  situation  of  the  child.279  Reports  about  the  (potential)  living 
situation of children are often a required piece of evidence for judgments on matters 
of  parental  responsibility  for  both  national  and  international  cases.  The  difficulties 
identified generally lead to delays in the procedure that is used in international cases 
to  obtain  such  reports.  While  employees  at  the  Central  Authorities  explained  that 
delays can ensue in both national and international cases, specific factors contribute 
to additional delays in international cases: 

  There  is  currently  no  deadline  for  Central  Authorities  to  respond  to 
requests by other Central Authorities. Practitioners stated that this is one of 
the reasons for delays. Sometimes, it takes several months until a request is 
answered. 

  Difficulties relating to communication can at times slow down cooperation. 
There are still language barriers between certain Member States, which are 
generally solved through translations of documents, emails etc. In addition, 
some  Central  Authorities  do  not  make  use  of  electronic  means  for 
communication. Thus, there may be delays, because letters take a long time 
to be delivered. 

  There are no guidelines on which types of information need to be attached 
to  a  case  file  that  is  exchanged  across  borders.  In  some  cases,  there  are 
disagreements  as  to  which  specific  pieces  of  information  need  to  be 
transmitted 
in  response  to  requests.  In  some  Member  States,  data 
protection  requirements  prevent  the  Central  Authorities  from  sending 
personal data related to the child. Other Central Authorities may require this 
data  to  continue  with  a  case.  If  the  information  submitted  is  not  complete 
from the perspective of the receiving Authority, this can lead to temporary 
standstill of a case.  

Courts are usually dependent on the reports that are prepared by the Central 
Authorities in order to make a decision on custody or access rights. Thus, a delay in 
the activities of the Central Authorities will also lead to a delay in the procedure 
before the court. As discussed above, delays can result in negative consequences for 

279  A  comprehensive  analysis  of  this  issue  can  be  found  in  the  section  “Cooperation  of  and  support  by  the  Central 
Authorities” in Annex 1. 

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Insufficiently specific 
provisions on the 
procedure for the 
placement of a child in 
another Member State 

Unclear division of roles 
in the context of the 
cooperation between 
Central Authorities and 
local authorities/child 
welfare authorities in 
the proceedings 
concerning children 

the well-being of the child and the parent-child relationship. 

Another task of the Central Authorities is to support courts when a child needs to be 
placed in institutional care or in a foster family in a different Member State.280 Such 
placements could be necessary in cases where the child does not have anybody to 
look after him/her effectively or the child needs special support due to a mental or 
physical illness. Thus, such placements are usually required in order to ensure that 
the child experiences a sufficient level of protection in relation to his/her needs.  
However, it appears that the relevant provisions in the Regulation do not function in 
a satisfactory manner. This was highlighted by a majority of respondents to the 
European Commission’s public consultation281 and other stakeholders.   
First, the procedures are too time consuming and not adapted to the urgency of 
such decisions. Several factors contribute to delays: 

  The Central Authority in the Member State where the child will 
be  placed  currently  has  to  be  asked  for  consent  before  a  child 
may  be  sent  to  that  Member  State,  but  there  is  no  rule  that 
ensures  a  fast  response.  Thus,  the  approval  can  be  too  time-
consuming,  which 
in 
institutional  care  or  in  a  foster  family  is  usually  a  matter  of 
urgency. Thus, a delay may have serious effects for the child’s 
level of protection and/or health. 

is  deleterious,  as  placing  a  child 

  As  with  the  general  tasks,  there  are  difficulties  relating  to  the 
communication  between  Central  Authorities,  including  in 
particular language barriers, a lack of clarity on the documents to 
be submitted to the requested Member State and a lack of clarity 
on which authority bears the costs of translation (cf. point (a)).  
In addition, there are examples where placements were carried out before consent 
is granted, which can lead to additional complications. For example, if a child is 
placed in a foster family in a different Member State without consent, it is possible 
that the foster family could not be examined beforehand or that the modalities (e.g. 
who bears the costs) could not be clarified. This may affect the well-being of the 
child, because the child may need to move again or be sent back, which can cause 
additional stress. 

Social authorities play an important role in the application of the Brussels IIa 
Regulation. Generally, they fulfil, for example, the following tasks:  

  Hold an interview with the child for the purposes of preparing a 
report on its well-being, living  conditions etc., and ascertaining 
the child’s best interests in the circumstances;  

  Collect  and  provide  to  the  Central  Authority  all  relevant 

information concerning the child, its parents, etc.; and 

  Facilitate the communication between the Central Authority and 

the child or the parents, etc. 

Practical difficulties have been reported regarding the cooperation between Central 
Authorities and local authorities. Difficulties appear to be based on the fact that the 

280 A comprehensive analysis of this issue can be found in the section Not sufficiently specific provisions on the procedure 
for the placement of a child in another Member State in Annex 1. 
281 60%, i.e. 85 of 141 responses 

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role of the competent authorities and the extent to which they should cooperate 
with the Central Authorities is currently not specified in the Regulation,282 although 
these authorities play an important role in relation to parental responsibility cases in 
practice. Indeed, cooperation currently does not always function well and several 
stakeholders, e.g. in the context of the public consultation, considered it as an area 
for improvement.  
In some cases, it is not clear how the social authorities should cooperate with the 
Central Authorities under the Regulation. The following difficulties have been 
identified: 

information  from 

  First,  there  are  often  delays  in  the  cooperation  within  one 
Member State, i.e. between a Central Authority and its national 
social  welfare  authorities.  This  concerns  situations  when  the 
Central  Authority  requested  by  another  Central  Authority 
needs  to  obtain 
its  national  welfare 
authorities. For example, in the context of placement decisions, 
information  from 
the  Central  Authorities  need  to  obtain 
domestic  registries  or  child  welfare  services.  The  cooperation 
internally  between  the  requested  Central  Authority  and  its 
national  welfare  authorities  is  not  regulated  in the  Regulation. 
Some  stakeholders  have  raised  problems  relating  to  the 
cooperation  between  Central  Authorities  and 
local/social 
authorities  in  the  same  Member  State.  These  mainly  relate  to 
inefficient procedures causing delays.  

  Second,  questions  arose  with  respect  to  the  potential 
cooperation  between  the  social  authorities  of  one  Member 
State and the Central Authority of the Member State where the 
child should be placed. Although there is currently no legal basis 
for  such  forms  of  cooperation,  there  was  a  case  in  which  the 
Czech  Central  Authority  and  foreign  social  or  local  authorities 
cooperated. 
involved  faced 
uncertainty because a form of cooperation was started  that is 
not legally regulated. 

In  this  situation,  the  parties 

In addition, there seems to be a lack of awareness within these authorities of the 
content of the Regulation and the role of the Central Authorities. As a result, it is 
possible that cases are not handled correctly and/or that parents are not well 
informed, e.g. on the possibilities for support offered by the Central Authorities. This 
can be a significant source of uncertainty and stress for citizens. 
As discussed further under specific objective 4 “Protection of the economically 
weaker spouse”, the take-up of mediation is currently not sufficiently promoted 
because the provision in the Regulation283 is not sufficiently strong and there are 
cases where mediation is in practice not promoted by the practitioners involved. This 
is of particular relevance from the child’s perspective284. Proceedings on parental 
responsibility are very stressful for children, in particular if the parents fight to obtain 
a favourable solution. As regards the effects of mediation, it was argued that 

The use of mediation is 
currently not promoted 
to a sufficient extent 

282 A comprehensive analysis of this issue can be found in the section Uncertainties relating to the cooperation 
between  Central  Authorities  and  local/child  welfare  authorities  as  well  as  to  the  role  of  social  and  local 
authorities in Annex 1. 
283 Article 55(e) Brussels IIa.  
284 A comprehensive analysis of this issue can be found in the section The use of mediation is currently not promoted to a 
sufficient extent in Annex 1. 

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mediation could help to further reduce delays as well as stress and could, 
importantly, help to improve the well-being of the child and the parent-child 
relationship. If parents are striving to find an amicable solution, this is less stressful 
for the child, e.g. because he/she does not need to take sides. Furthermore, 
agreements that have been reached through mediation are often longer lasting and 
more sustainable compared to agreements reached before courts, because the 
mediator tries to ensure that all arguments and perspectives are taken into account. 
This may go beyond the matters that are covered by a legal dispute.285 

Information and awareness 
Practitioners are not 
sufficiently aware of the 
Regulation, leading to 
the misapplication of 
certain provisions of the 
Brussels IIa Regulation 
Citizens are not 
sufficiently aware of the 
content of the 
Regulation and its 
implication for 
international 
proceedings on 
matrimonial matters, 
matters of parental 
responsibility or child 
abduction 

As discussed further under specific objective 2 “Predictability, clarity, and reliability 
for citizens involved in cross-border cases”, there is a lack of awareness and 
understanding of the Regulation among practitioners and citizens. The lack of 
awareness and understanding mainly leads to delays which affect the well-being of 
the child in cases on matters of parental responsibility. The fact that citizens are not 
sufficiently aware of the content of the Regulation and its implication can have 
serious consequences. For example, it was pointed out by practitioners that parents 
are often not aware of the definition of child abduction and the consequences. Some 
parents have acted impulsively and taken a child to their home country after a fight 
with the other parent without knowing that this was an abduction. As soon as the 
child is abroad, the complex procedures for the return of the child might be initiated 
by the other parent and the child will thus need to go through these stressful 
proceedings. In some cases, such actions could possibly be avoided if the parents 
were aware of their actions and the far-reaching consequences. 

3.3.2  Achievement of the general objectives 

This section evaluates the Brussels IIa Regulation’s effectiveness in achieving its general objectives, 
namely: 

  Ensuring that citizens can benefit fully from an area of freedom, security and justice; 

and 

  Ensuring the smooth functioning of the internal market and free movement of persons 

across the EU Member States. 

Ensuring that citizens can benefit fully from an area of freedom, security and justice 

The Brussels IIa Regulation has contributed to building a European area of justice in the domains of 
matrimonial matters and parental responsibility. It has facilitated the settlement of cross-border 
litigation in matrimonial and parental responsibility matters through a comprehensive system of 
jurisdiction rules, a system of cooperation between Member State Central Authorities, the 
prevention of parallel proceedings, and the free circulation of judgments, authentic instruments and 
agreements. The provisions on the return of the child complementing the 1980 Hague Convention 

285  This  was  explained  during  an  interview  with  a  mediator.  This  point  is  supported,  for  example,  by  Robert  E.  Emery, 
‘Renegotiating Family Relationships: Divorce, Child Custody, and Mediation’, 2012. 

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aimed at deterring parental child abduction between Member States are regarded as particularly 
useful.286 

While it is considered that the Brussels IIa Regulation is functioning well overall and is delivering 
value to EU citizens, the operational functioning of the instrument is at times hampered by a series 
of legal issues287 as well as a lack of awareness and information on the part of both citizens and legal 
practitioners. 

Due to these legal issues, the Regulation has not yet achieved its full potential with regard to the 
objective of an area of freedom, security and justice. 

Ensuring the smooth functioning of the internal market and free movement of persons across 

the EU Member States 

The increasing use of the rights of free movement of persons, goods and services inevitably results 
in a high number of potential cross-border disputes, including on matrimonial matters and questions 
of parental responsibility. 

The Brussels IIa Regulation contributes to promoting trust in the internal market by ensuring that 
citizens who move to another Member State (i.e. who make use of the internal market’s 
fundamental principle of free movement of persons) can – in most cases (i.e. where not hampered 
by existing legal issues288) – rely on clear rules concerning jurisdiction, a functioning system of 
cooperation between Member State Central Authorities as well as the free circulation of judgments, 
authentic instruments and agreements. Were there no such rules and mechanisms this might 
potentially hamper EU citizens in exercising their right of free movement within the internal market 
because they might fear that potential cross-border disputes cannot be adequately solved. 
Nonetheless, the Brussels IIa Regulation could be more effective in promoting trust in the internal 
market if the numerous legal issues identified and the lack of awareness and information of both 
citizens and legal practitioners were to be addressed. 

It is important to note at the same time, however, that the problems addressed by Brussels IIa (i.e. 
cross-border disputes in matrimonial matters and parental responsibility) are in part a consequence 
of the internal market, notably its core principle of free movement of persons. 

3.3.3  Challenges and additional measures affecting the application of the 

Brussels IIa Regulation in the Member States 

While most stakeholders consulted concluded that the Brussels IIa Regulation is generally applied 
smoothly in all Member States, some issues were highlighted (in addition to the legal issues 
discussed in Annex 1 on the “Achievement of the operational objectives”), notably with regard to a 
lack of awareness and knowledge of the instrument (both among citizens and legal practitioners), 
insufficient training offerings as well as the complexity of the structure and provisions of the Brussels 

286 European Commission (2014): Report on the application of Council Regulation (EC) No 2201/2003 concerning 
jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental 
responsibility, repealing Regulation (EC) No 1347/2000, COM(2014) 225 final, p. 16. 
287  Discussed  in  the  section  on  Effectiveness  and  in  further  detail  in  Annex  1  on  the  “Achievement  of  the  operational 
objectives”. 
288  Discussed  in  the  section  on  Effectiveness  and  in  further  detail  in  Annex  1  on  the  “Achievement  of  the  operational 
objectives”. 

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IIa Regulation. These issues are to some extent preventing the Brussels IIa Regulation from 
functioning well. Finally, Member States have implemented a few additional measures affecting the 
application of the Brussels IIa Regulation. 

(a) Lack of awareness and knowledge of the Brussels IIa Regulation 

An issue raised by many national experts and interviewees is the fact that there seems to be a lack 
of awareness and knowledge about the Brussels IIa Regulation among practitioners. As a 
consequence, the Brussels IIa Regulation is sometimes not applied at all when it should be or applied 
wrongly, as illustrated in the following case example. 

Lack of awareness hampering the application of the Brussels IIa Regulation (Poland) 
The national expert for Poland concluded that Brussels IIa plays a minor role in the Polish legal system. 
Only five decisions directly refer the Regulation: V ACz 252/09, ACz 1719/1712, V CZ 37/09, IV CSK 
566/10, V ACa 13/13. In addition, a large part of the decisions taken refer to a situation in which the court 
of first or second instance did not apply the provisions of the Brussels IIa Regulation in general (ACz 
1719/12, IV CSK 566/10, I ACz 2057/12, Ca II 1152-1113), or applied them incorrectly (e.g. in V ACa 
13/13). Despite the applicability of the Brussels IIa Regulation, Polish courts have regularly made use of 
Polish law only. 
Another issue raised by some interviewees is the fact that many citizens do not seem to be aware of 
the rules contained in the Brussels IIa Regulation. According to a German lawyer, parents are often 
not aware that a move to another country changes the place of habitual residence of the child and, 
therefore, directly influences jurisdiction for possible court proceedings. There have been cases 
where parents were shocked to learn that parental responsibility proceedings could not be held in 
the country of their nationality, because - on the basis of Article 8 of the Brussels IIa Regulation - the 
courts did not have jurisdiction.  

Furthermore, several stakeholders pointed to a lack of knowledge and awareness about 
international rules on child abduction. Many parents are not aware that abduction can have serious 
consequences because complex international judicial machinery is initiated as soon as the other 
parent files an application for the return of the child. Moreover, according to a mediator from 
Poland, about 95% of all parents do not know what an abduction is, and what the consequences of 
an abduction are. Usually, they legitimise their behaviour because they want to protect the child. 
The Polish mediator noted that awareness needs to be raised, for example, by providing information 
at airports. In addition, she argued that insufficient training is provided to law enforcement 
authorities to ensure that they can identify critical situations and make the parents aware of the 
consequences of their actions. 

More generally, increased migration within, to and from the EU is leading to a high number of 
potential disputes in matrimonial matters and parental responsibility with an international (intra-EU) 
dimension, and thus significant use of the Brussels IIa Regulation. As a result, the awareness of and 
experience with the application of the instrument is slowly increasing over time. However, most 
experts agreed that this effect is insufficient to overcome the significant lack of awareness and 
knowledge about the Brussels IIa Regulation among citizens and legal practitioners. 

(b) Insufficient training 

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Closely linked to the low levels of awareness and knowledge on the Brussels IIa Regulation, the 
insufficient availability of specialised training on the Regulation for legal practitioners was 
highlighted by a large majority of the national experts and interviewees. While training is provided 
both at EU and Member State levels, the training is often considered as insufficient for reaching all 
relevant legal practitioners. 

Insufficient training on the Brussels IIa Regulation (Slovenia) 
The national expert for Slovenia reported that despite the fact that the Brussels IIa Regulation has been 
used in Slovenia for one decade already, its presence and visibility are still at a low level. While the 
Brussels IIa Regulation is included in undergraduate as well as in post-graduate study programmes, its 
presence in Slovenian literature is very low; articles dealing concretely with the Brussels IIa Regulation are 
very rare, in spite of the almost ten years of use. There are some cases in which it is clear that decisions 
were taken (e.g. in case IV Cp 1792/2007) that can only be understood as a consequence of a lack of 
knowledge of the Regulation. 
As a result of insufficient training, legal practitioners may also be reluctant to apply the Brussels IIa 
Regulation and they invoke other instruments, such as the Hague Convention, instead. 

Reluctance hampering the application of the Brussels IIa Regulation (Ireland) 
According to the national expert for Ireland, the lack of training has led to rather limited use of the 
Brussels IIa Regulation in Ireland, at least insofar as it is possible to document this. One key reason for this 
in the context of international child abduction proceedings is the significant overlap between the Hague 
Convention and the Regulation. For some time, practitioners did not seem especially inclined to invoke 
the Regulation in abduction proceedings. For example, in 2008, 173 applications (82%) were made under 
the Hague Convention, whereas just 21 applications (10%) were made under Brussels IIa and 16 
applications (8%) under both instruments. There are signs that this is changing: the corresponding figures 
for 2010 were 117 (61%) for the Hague Convention, 30 (16%) under Brussels IIa and 46 (23%) under both. 
By 2012, this had shifted to 116 cases (42%) under the Hague Convention, 76 (28%) under Brussels IIa and 
82 (30%) under both. Even so, in spite of the increasing reliance on Brussels IIa by practitioners, the 
judiciary remain somewhat reluctant to invoke the Regulation in their judgments unless it sheds a 
different light on the case than the Hague Convention. In cases where the legal frameworks have the 
same effect, judges tend to decide the case solely by reference to the Hague Convention, notwithstanding 
the fact that Brussels IIa had been pleaded by counsel.289 Accordingly, Kilkelly (2008)290 has observed that 
one of the primary effects of Brussels IIa in Ireland has been to unnecessarily complicate the law on 
international child abduction. 
Due to the complexity of the rules (see below), it is not easy for generalist lawyers and judges, who 
only have a limited family law caseload, to participate in adequate training and receive enough 
practice in order to be able to apply the Brussels IIa Regulation correctly and with ease. For example, 
judges in very small courts in rural areas need to deal with all kinds of different subject matters and 
are not able to take the time that is necessary to understand the Brussels IIa Regulation correctly 
when this is only relevant for few of their cases. 

Training for specialised practitioners (Germany) 
In Germany, there has been a process of centralising return cases. Therefore, training can be offered to a 
targeted group that regularly deals with cases involving the Brussels IIa Regulation. As a result, the quality 
of the decisions taken in Germany has improved. Moreover, the number of cases where the six week 
deadline could be kept has increased (cf. Hague statistics). 

(c)  Complexity of the Brussels IIa Regulation 

289 See RP v SD [2012] IEHC 579, LJ v VN [2012] IEHC 307, Li v La [2009] IEHC 585, N v N [2009] IEHC 213, PMP v 
KTP [2007] IEHC 217 and SR v MMR [2006] IEHC 10, among many other examples. 
290 Kilkelly, U, Children’s Rights in Ireland: Law Policy and Practice (Haywards Heath: Tottel, 2008). 

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Furthermore, numerous stakeholders pointed to the complexity of the structure as well as a lack of 
clarity of certain provisions of the Brussels IIa Regulation.291 

For instance, an Irish interviewee suggested that the complicated structure of the Brussels IIa 
Regulation could be the cause of mistakes in the application of the Brussels IIa Regulation in the 
Member States. According to the interviewee, the Regulation is cumbersome to understand. For 
example, enforcement is dealt with in different sections of the Regulation. 

Typically, the application of the Brussels IIa Regulation was perceived as being smoother in Member 
States where legal practitioners can specialise. According to the stakeholders interviewed, the 
application of the Brussels IIa Regulation would benefit from specialised judges and lawyers. 

(d) Additional measures introduced by the Member States and their effects 

The main measures attributable to the Member States in the context of the Brussels IIa Regulation 
relate to training and awareness-raising efforts for legal practitioners and citizens. While no detailed 
data is available on the extent of these efforts, there is some indication that training and awareness-
raising efforts are insufficient with a view to achieving fully effective functioning of the Brussels IIa 
Regulation (see above). 

The Member States have engaged to a variable extent in mutual exchange on their fundamental 
principles of family law with a view to building a better understanding of national differences, 
building mutual trust and enabling the smooth resolution of potential conflicts of law. In some rare 
cases, an approximation of substantive laws between Member States has been achieved. For 
instance, the new Common Franco-German Matrimonial Regime292 (applicable since 1 May 2013) 
provides an optional matrimonial regime for couples with a habitual residence in France or 
Germany. The instrument thereby overcomes legal differences in matrimonial matters between both 
Member States. Other countries are explicitly invited to join this instrument. 

The extent to which Member States have ratified bilateral agreements and multilateral conventions 
that may facilitate the application of the Brussels IIa Regulation also varies. For instance, the 
protection of vulnerable groups is fostered by the Hague Convention of 13 January 2000 on the 
International Protection of Adults293, which has so far been ratified by six Member States (AT, CZ, DE, 
FI, FR, UK). 

291 See assessment of the specific provisions under the evaluation of the operational objectives above. 
292 French version: Décret n° 2013-488 du 10 juin 2013 portant publication de l'accord entre la République française et la 
République fédérale d'Allemagne instituant un régime matrimonial optionnel de la participation aux acquêts, signé à Paris 
le 4 février 2010, http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000027533762  
293 http://www.hcch.net/index_fr.php?act=conventions.text&cid=71  

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3.4  Efficiency 

This section assesses the efficiency of the Brussels IIa Regulation, i.e. in how far it has delivered its 
results that are ‘good value for money’ in terms of the resources used to obtain the actual effects. 
More specifically, this section addresses the following evaluation questions: 

  What  are  the  effects  of  the  Brussels  IIa  Regulation  on  the  additional  costs  of  the  cross-

border cases covered by the Regulation compared to domestic proceedings? 
  What were the costs the Regulation and how do they compare to the benefits? 
  Could the same effects have been achieved at lower costs? Was the Regulation designed in 

an efficient way in terms of the types of measures included? 

  To what extent could the Regulation be simplified? 

3.4.1  Effects of the Brussels IIa Regulation on the additional costs of the cross-

border cases covered by the Regulation compared to domestic proceedings 

To assess this, it is of interest to differentiate between the general costs and delays of cross-border 
cases and those costs and delays that are specific to cases of matrimonial matters and cases of 
parental responsibility. These costs can be compared to the costs of purely domestic proceedings. 

Quantitative estimates of the costs of proceedings under the Brussels IIa Regulation were developed 
based on nine hypothetical cases in Chapter 5 on “Quantitative analysis”. These cases provide 
insights into the typical costs encountered by citizens in cases covered by the Regulation. The nine 
hypothetical cases cover all the high-priority issues identified and are structured according to the 
specific objectives of the Regulation (c.f. chapter on Effectiveness). In addition, Annex 8.2.3 provides 
an overview of the costs of the cross-border cases covered by the Regulation compared to domestic 
cases. 

Many interviewees concluded that the Brussels IIa Regulation has typically not augmented the 
additional costs of cross-border cases (as compared to the costs of domestic cases), but has also not 
significantly contributed to reducing them. Some interviewees stressed that the costs and delays 
linked to international judicial cooperation (translations, provision of documents, etc.) should not be 
seen as a result of the Brussels IIa Regulation; on the contrary, the Regulation aims at facilitating this 
cooperation and reducing its costs. 

It was also pointed out by several interviewees that the Brussels IIa Regulation is a rather complex 
instrument and that many practitioners do not fully understand it. In addition, there is a problem of 
a lack of awareness of citizens and legal practitioners. Therefore, the potential positive effects of 
the Regulation, such as reduced costs and delays, and increased legal certainty and predictability, 
are not always fully realised in practice.294 

3.4.2  Costs of the Regulation 

Regarding the costs of the Brussels IIa Regulation, there is a need to distinguish first between (1) 
compliance costs, i.e. those costs generated by measures undertaken to comply with the provisions 
of the Regulation, and then (2) costs for citizens, i.e. those costs that citizens face in international 

294  For  a  discussion  of  issues  related  to  the  awareness  and  information  of  citizens  and  legal  practitioners  regarding  the 
Brussels  IIa  Regulation,  please  refer  to  the  section  “Challenges  and  additional  measures  affecting  the  application  of  the 
Brussels IIa Regulation in the Member States”. 

152 | P a g e  

 
 
 
                                                            
proceedings on matrimonial matters and matters of parental responsibility. Finally, this section 
concludes on the overall efficiency of the Brussels IIa Regulation. 

Compliance costs 

Compliance with the Brussels IIa Regulation has in itself generated very limited costs. What costs 
there are mainly relate to the operation of the Central Authorities as well as training of legal 
practitioners. 

The Central Authorities of the Member States are generally operated by the national Ministries of 
Justice or related public bodies. Usually, the bodies designated as Central Authorities under the 
Brussels IIa Regulation are also in charge of international coordination tasks for similar international 
legal instruments in family law, such as the 1980 and 1996 Hague Conventions. The main costs 
related to the Central Authorities under the Brussels IIa Regulation are staff costs (generally 
between 2 FTEs and 4 FTEs per Member State), office space, outsourced translation services and 
supplies. No separate detailed cost data is available for each Member State.295 

Awareness-raising and training on the Brussels IIa Regulation may be required for different types of 
legal practitioners affected by the Brussels IIa Regulation, such as judges (potentially, but not 
necessarily, in specialised courts dealing with family matters), lawyers (specialised in – international 
– family law), officials in Central Authorities, officials in public authorities responsible for children 
and mediators – and, potentially, citizens. While it was not possible to collect detailed data on the 
costs to Member States of awareness-raising and training activities, a large number of stakeholders 
consulted pointed to insufficient efforts of the Member States in this regard.296 

Costs for citizens 

The Brussels IIa Regulation297 has not resulted in any costs for citizens. 

Conclusion on the efficiency of the Brussels IIa Regulation 

Overall, the analysis of the practical operation of the Brussels IIa Regulation (i.e. its effectiveness, c.f. 
previous chapter) and the assessment of the costs and delays generated by the instrument point to a 
good relationship between benefits and costs, i.e. a satisfactory level of efficiency. Indeed, as 
discussed above298, the Brussels IIa Regulation has achieved satisfactorily the five objectives (access 
to court, predictability, smooth recognition, protection of the economically weaker spouse and the 
well-being of the child), facilitated the circulation of judgements within the Union and resolved 
problems of parallel jurisdiction at a very limited cost. 

295 A survey of the Central Authorities was conducted by the study team, but the responses received provided very limited 
insights into the costs and resources of Central Authorities. Please refer to Annex 8 for more information. 
296  For  a  discussion  of  issues  related  to  the  awareness  and  information  of  citizens  and  legal  practitioners  regarding  the 
Brussels  IIa  Regulation,  please  refer  to  the  section  “Challenges  and  additional  measures  affecting  the  application  of  the 
Brussels IIa Regulation in the Member States”. 
297  Please  refer  also  to  the  chapter  “Quantitative  analysis”,  which  includes  quantitative  estimates  of  the  costs  and  delays 
related to the application of the Brussels IIa Regulation based on a series of hypothetical cases, and also to annex 8.2.3 for a 
general discussion on costs. 
298 The costs of international cases in matrimonial matters and parental responsibility are discussed in detail in the section 
“Costs of cross-border cases covered by the Regulation compared to domestic proceedings”. 

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3.4.3  Could the same effects have been achieved at lower costs? 

While most stakeholders consulted concluded that the Brussels IIa Regulation is designed in an 
efficient way, some suggested that the efficiency of the instrument could be further improved 
through (1) increased promotion of mediation as an alternative conflict resolution mechanism and 
(2) increased efforts to foster awareness and knowledge of the instrument among practitioners and 
citizens. 

For example, according to several interviewees, effective and efficient solutions in international 
cases of matrimonial matters and parental responsibility can often be found through mediation. 
Mediation is generally a much cheaper method of conflict resolution than judicial proceedings. 
Conflict resolution through mediation is typically shorter and less expensive, mainly because of more 
flexible procedures and the absence of legal assistance costs. Numerous stakeholders argued that 
the current efforts to promote mediation (in line with Article 55(e) of the Regulation) are insufficient 
to make best use of the potential of mediation. Nonetheless, some interviewees noted that not all 
conflicts can be solved by mediation as this requires some degree of good will on the part of the 
parties.299 

Several interviewees noted that currently insufficient information is provided to citizens about the 
Brussels IIa Regulation.300 As a result, citizens are often not aware of their rights and obligations 
under the Regulation. For instance, parents are very often not aware that they cannot bring their 
child to their country of nationality without the consent of the other parent. Better information of 
citizens could reduce costs for citizens by avoiding unintended illegal behaviour (e.g. child abduction) 
and the resulting legal proceedings. Better informed citizens might also require less specialised legal 
advice, thus also reducing the costs. 

Finally, even many legal practitioners are not aware of basic provisions of the Brussels IIa 
Regulation, e.g. the existence of a Central Authority in their country. Courts outside the capital are 
also generally in need of information. Furthermore, it was reported to us that public child protection 
services do not know enough about the Brussels IIa Regulation. Several interviewees regretted that 
measures for raising awareness are only implemented at EU level (e.g. through the European Judicial 
Network) and not fully integrated in the national-level training of relevant legal practitioners (e.g. 
through an integration in national legal curricula). 

In conclusion, it appears that while the Brussels IIa Regulation is considered as being relatively 
efficient, its efficiency in achieving its objectives could be further improved through increased 
promotion of mediation and increased efforts to foster awareness and knowledge of the instrument. 
The decrease of costs for citizens that could be achieved through such measures are generally 
considered by most experts and stakeholders to largely outweigh the costs for the implementation 
of these measures. 

299 A comprehensive analysis of this issue can be found in the section “Promotion of mediation” in Annex 1. 
300  A comprehensive  analysis of  issues  related to  the  information  and  awareness  of  citizens  and  legal  practitioners can  be 
found  in  the  section  “Challenges  and  additional  measures  affecting  the  application  of  the  Brussels  IIa  Regulation  in  the 
Member States” above. 

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3.4.4  Possible simplification of the Regulation 

According to several stakeholders interviewed, the Brussels IIa Regulation (and its application) could 
be simplified through the integration of existing ECJ case law within a revised version of the 
instrument. 

More broadly, several experts interviewed and participants in the expert panel argued that the 
different Union family law instruments should be merged into a single instrument – a single EU 
family code including all existing Union instruments (Rome III Regulation, Brussels IIa Regulation, 
Maintenance Regulation etc.). In their view, this would simplify EU legislation and lead to more 
clarity and awareness among practitioners, thereby ensuring an effective implementation of the 
instruments. This option goes beyond the scope of the Brussels IIa Regulation and was therefore not 
assessed in this study. 

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3.5  EU added value and utility 

This section evaluates the EU added value and utility of the Brussels IIa Regulation, i.e. the potential 
advantages of EU action compared to action at national level, as well as whether the Regulation’s 
effects correspond to the needs, by addressing the following evaluation questions: 

  Added  value  –  To  what  extent  could  the  Member  States  have  achieved  the  same  results 

without EU intervention?  

  Utility – To what extent do the effects of the Regulation correspond to the needs? Has the 

Regulation had any positive or negative unintended effects? 

3.5.1  EU added value 

Under the principle of subsidiarity laid down in Article 5 TFEU, in areas which do not fall within its 
exclusive competence, the Union should act only if and in so far as the objectives of the proposed 
action cannot be sufficiently achieved by the Member States but can be better achieved at Union 
level. This leads to the question of whether the objectives of the Brussels IIa Regulation could also be 
achieved without EU action, e.g. through Member State intergovernmental cooperation. 

The objective of the Brussels IIa Regulation is to provide predictable, clear and reliable rules on 
jurisdiction and recognition and enforcement of judgments in matrimonial matters and matters of 
parental responsibility. While this objective could in theory be achieved by convergence between 
the Member States’ national conflict-of-law rules and substantive laws on matrimonial matters and 
matters of parental responsibility, there is currently no such convergence.301 The objective of 
providing predictable, clear and reliable rules on jurisdiction and recognition and enforcement of 
judgments in matrimonial matters and matters of parental responsibility can therefore be better 
achieved at EU level. The action at Union level therefore has added value compared to action at 
Member State level. 

3.5.2  Utility 

As outlined in the chapters on the relevance and effectiveness of the Brussels IIa Regulation, the 
objectives and the effects of the Regulation correspond to the needs of EU citizens. According to 
most interviewees, the Regulation’s core utility lies in the facilitation of the free movement of 
judgments in matrimonial matters and parental responsibility, the re-enforcement of the 1996 

301  For  instance,  there  are  considerable  differences  between  the  Member  States’  conflict-of-law  rules  concerning  divorce. 
While  in  some  Member  States  the  rules  applicable  always  correspond  to  their  domestic  laws  (“lex  fori”),  the  majority  of 
Member States determine the applicable law on the basis of a scale of connecting factors that seek to ensure that the divorce 
is governed by the rules with which the spouse has the closest connection. The Rome III Regulation No 1259/2010 provides 
common  rules  for  applicable  law  in  divorce  matters;  however,  only  16  Member  States  currently  participate  in  this 
Regulation.  
For more details, please refer to Annex II of the European Commission’ Impact Assessment ”Annex to the proposal for a 
Council  Regulation  amending  Regulation  (EC)  No2201/2003  as  regards  jurisdiction  and  introducing  rules  concerning 
applicable law in matrimonial matters”, Brussels, 17.7.2006, SEC(2006) 949.  
Differences  continue  to  exist  in  substantive  law  as  well.  For  instance,  due  to  the  different  family  policies  applied  in  the 
Member States and the disparate cultural values, significant differences exist between the Member States’ divorce laws, both 
in relation to the grounds for divorce as well as the procedures. The differences between the substantive laws may mean that 
the  conditions  to  be  met  for  divorce  (in  terms  of  time,  requirements  of  proof  of  separation  periods,  grounds for  divorce  - 
mutual  consent;  irreparable  breakdown  of  the  marriage;  fault  of  one  spouse  -,  etc.)  change  drastically  from  one  Member 
States to the next. For more details, please refer to Annex I of the European Commission’s Impact Assessment “Annex to the 
proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules 
concerning applicable law in matrimonial matters”, Brussels, 17.7.2006, SEC(2006) 949. 

156 | P a g e  

 
 
 
                                                            
Hague Convention, and the development of mutual trust between the judicial systems of the 
Member States. 

In addition, the Regulation safeguards the legitimate interests of EU citizens, who have certain 
expectations of the functioning of the internal market and an effective common judicial area. More 
specifically, the Brussels IIa Regulation contributes to promoting trust in the internal market by 
ensuring that citizens who move to another Member State (i.e. who make use of the internal 
market’s fundamental principle of free movement of persons) can rely on clear rules concerning 
jurisdiction as well as free movement of judgments in the event of cross-border matrimonial and 
parental responsibility disputes. The absence of such rules and mechanisms would potentially 
hamper EU citizens in exercising their right of free movement within the internal market. 

However, the Brussels II Regulation has also had an unintended negative effect, namely the 
occurrence of a rush to court or forum shopping in international disputes on matrimonial matters or 
matters of parental responsibility. Even though limited by the Rome III Regulation, these issues may 
lead to significant stress and costs for the parties involved and a possible disadvantage for the 
economically weaker spouse who may have limited access to specialised legal advice.302  

No other (positive or negative) unintended effects of the Brussels IIa Regulation were identified. 

3.6  Main conclusions of the evaluation 

This section summarises the main conclusions of the evaluation of the Brussels IIa Regulation. 
3.6.1  Relevance 

Given that the overall number of international couples and families affected by the Brussels IIa 
Regulation is stable and in view of the qualitative assessment of the legal issues noted since its 
adoption, the existence of and further improvement to the Regulation are relevant to the needs of 
citizens. 

The number of international couples and families affected by the Regulation remains significant and 
the Regulation remains relevant as well in view of the qualitative assessment of the evolution of the 
initial problem. 

The objectives of the Regulation are still relevant to the situation as it has evolved since adoption of 
the Regulation, but we note that the Regulation does not reflect the international trend to grant 
more autonomy to the parties in civil law. 

3.6.2  Coherence 

The Regulation is coherent with and fosters well-functioning free movement of persons within the 
EU.  

However, it appears that the multitude, complexity and interrelationship of Union instruments in 
family law have led to practical difficulties, such as the lack of understanding on the part of citizens 
and practitioners or wrong assumptions on jurisdiction.  

302  A  comprehensive  analysis  of  this  issue  can  be  found  in  the  section  Potential  for  rush  to  court/forum  shopping  on  the 
basis of the alternative grounds of jurisdiction in Annex 1. 

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The interrelationship of the Regulation with international conventions and bilateral agreements 
also remains very complex. It is not always clear for practitioners which instrument applies and 
there are conflicting interpretations which are hampering the practical operation of the Regulation.  

3.6.3  Effectiveness 

The Regulation has contributed to building a European area of justice in the domains of 
matrimonial matters and parental responsibility. It has facilitated the settlement of cross-border 
litigation in matrimonial and parental responsibility matters through a comprehensive system of 
jurisdiction rules, a system of cooperation between Member State Central Authorities, the 
prevention of parallel proceedings and the free circulation of judgments, authentic instruments and 
agreements.  

The Regulation contributes to promoting trust in the internal market by, for the most part, ensuring 
that citizens who move to another Member State can – in most cases – rely on clear rules concerning 
matrimonial matters and parental responsibility. 

The Brussels IIa Regulation appears to build on the right measures – i.e. uniform European rules to 
settle conflicts of jurisdiction between Member States and facilitate the free circulation of 
judgments, authentic instruments and agreements in the Union by establishing rules on their 
recognition and enforcement in another Member State – in order to achieve its general and specific 
objectives. 

While the Regulation is generally correctly applied in all Member States, the lack of awareness and 
knowledge of the instrument (both among citizens and legal practitioners), insufficient training 
offerings as well as the complexity of the structure and provisions of the Regulation are to some 
extent preventing the the Regulation from functioning as well as it should. 

While the Regulation is considered to be functioning well overall and to be delivering value to EU 
citizens, the operational functioning of the instrument is at times hampered by a series of legal 
issues as well as a lack of awareness and information on the part of both citizens and legal 
practitioners.  

We summarise below the effects of the most important high-priority legal issues at the level of each 
of the five specific objectives of the Regulation. 

Access to court for citizens in international families with a close connection to 
the EU 

While the existing provisions on jurisdiction and legal aid are ensuring effective access to (a 
suitable) court for citizens in international families with a close connection to the EU in a very large 
majority of cases, a series of legal issues are still resulting in risks that citizens will be excluded from 
their fundamental right to access to a court within the EU or to situations, where the court that has 
been determined as having jurisdiction may not be the most suitable one to hear the case. 

  The impossibility of choosing the competent court by common agreement (choice of 
court) may prevent couples from access to the most suitable/convenient court for the 
parties. 

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  The  absence  of  a  forum  necessitatis  in  the  Regulation  in  combination  with  the 
reliance on (non-harmonised) national rules for establishing residual jurisdiction may 
lead to situations where EU citizens are excluded from access to a court in the EU in 
relation to matrimonial matters and parental responsibility. 

  The vagueness of the concept of habitual residence of the child has in some cases 
been  detrimental  to  the  objective  of  ensuring  effective  access  to  the  most  suitable 
court, notably in the best interests of the child.  

Predictability, clarity, and reliability for citizens involved in cross-border cases 

Compared to the situation before it was enacted, , the Regulation has brought about increased 
predictability, clarity and reliability for citizens involved in international disputes in matrimonial 
matters and matters of parental responsibility. By establishing common rules on international 
jurisdiction and recognition and enforcement, it has smoothed the resolution of such disputes. 

Nonetheless, a series of remaining legal issues is negatively affecting the predictability, clarity, and 
reliability for citizens involved in cross-border cases.  

  Potential  exclusion  of  certain  people  due  to  the  non-harmonisation  of  rules  on 
residual  jurisdiction  and  the  lack  of  a  forum  necessitatis  can  generate  significant 
uncertainty for citizens. 

  The uncertainty about the jurisdiction applicable in matrimonial matters and the 

risk of a rush to court can be a significant source of stress for citizens.  

  The absence of a possibility for spouses to choose the competent court by common 
agreement (choice of court) prevents couples from predetermining the jurisdiction of 
potential divorce proceedings by common choice and thereby reducing the uncertainty 
on the applicable law and the risk of a rush to court in case of divorce.  

  The vagueness of the concept of ‘habitual residence’ leaves room for long debates 
about  it  in  court  as  well  as  for  conclusions  that  are  not  in  the  best  interests  of  the 
child. This may be very stressful for the parties involved. 

  Significantly  varying  rules  on  hearing  the  child  have  led  to  reservations  and 
refusals  of  the  recognition  and  enforcement  of  judgments,  thus  impeding  the  legal 
certainty and predictability for citizens.  

  The absence of common minimum standards in the Regulation concerning the legal 
representation of the child in court is a source of legal uncertainty for citizens due 
to  different  practices  across  the  Member  States  and  a  lack  of  information  on  these 
practices. 

  The fact that Member States do not interpret the term “enforcement” in a uniform 
manner  has  led  to  differing  practices,  e.g.  in  terms  of  whether  judgments  require  a 
declaration of enforceability, which are the source of significant costs and time delays 
for citizens.  

  The non-abolition of the exequatur procedure for the enforcement of judgments on 
the  exercise  of  parental  responsibility  in  respect  of  a  child  (custody)  has  led  to 
additional costs and time delays for citizens. 

  Practical  obstacles  during  enforcement  procedures  are  a  considerable  factor  of 
uncertainty  for  citizens  involved  in  cross-border  cases  on  parental  responsibility,  as 
they  cannot  be  sure  whether  a  judgment  will  eventually  be  enforced.  Significant 
delays or even failures to enforce return orders in practice are leading to doubts on the 
part of citizens with regard to the legal certainty, predictability and reliability of the 
instruments provided by the Regulation.  

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  The  lack  of  clarity  on  the  application  of  the  six  week  time  limit  and  the  overall 
duration  of  return  proceedings  may  result  in  stress  for  citizens  because  they  do  not 
know when they can expect a wrongfully removed child to be returned. 

  The  lack  of  clarity  on  the  concept  of  “adequate  arrangements”  and  what 
arrangements  need  to  be  made  to  fulfil  this  criterion  leads  to  significant  legal 
uncertainty for citizens. 

  In  practice,  hurdles  remain  in  connection  with  the  actual  enforcement  of  return 

orders. 

  Practical  difficulties  have  occurred  regarding  the  cooperation  between  Central 
Authorities  and  local  child  welfare  authorities,  leading  to  delays  for  citizens  and 
uncertainty about the support they may obtain.  

  Citizens are often not aware of their rights and obligations under the Regulation – 
a situation which can lead to unintended illegal behaviour (e.g. child abduction) and 
resulting legal proceedings. Even many lawyers, judges and public child protection 
services are not fully aware of the basic provisions of the Regulation – leading to a 
risk non-application or mis-application of the Regulation. 

Smooth  recognition  and  enforcement  of  judgments,  authentic  instruments 
and agreements 

The Regulation has contributed to the smooth recognition and enforcement of judgments across 
borders, in particular by establishing automatic recognition of all judgments and the abolition of 
intermediate proceedings on enforcement for most judgments. However, a number of difficulties 
still remain:  

  As concerns the recognition of judgments for matrimonial matters and matters of 
parental responsibility, the provisions of the Regulation are sometimes not applied 
or  applied  wrongly  because  of  a 
lack  of  awareness  of  practitioners.  As  a 
consequence, additional costs, delays and stress are caused in cases where citizens 
have  had  to  produce  supplementary  documents  (including  translations  and 
apostilles) to have a judgment recognised. 

  Additional  hurdles  remain  with  regard  to  the  recognition  and  enforcement  of 
judgments on matters of parental responsibility. In some cases, citizens cannot be 
sure  whether  or  not  a  declaration  of  enforceability  is  needed  due  to  the  fact  that 
there are different interpretations of the term “enforcement”. Costs and delays with 
regard  to  enforcement  still  occur  due  to  the  fact  that  intermediate  procedures 
(exequatur)  have  only  been  abolished  for  some  types  of  decision  but  are  still 
required for others. Furthermore, recognition and enforcement of judgments is not 
ensured in all cases. For the citizens involved, this is a factor of uncertainty, as they 
cannot be sure whether a judgment will eventually be enforced. The child not having 
been  given  an  opportunity  to  be  heard  is  an  important  reason  for  refusing  the 
recognition  and  enforcement  of  judgments.  Finally,  some  decisions  on  parental 
responsibility  are  never  enforced  due  to  practical  obstacles  during  national 
enforcement procedures.  

Protection of the economically weaker spouse 

While the existing provisions on legal aid and the improved legal certainty and clarity for citizens (as 
compared to the situation before the enactment of the Regulation) have contributed to the 

160 | P a g e  

 
 
protection of the economically weaker spouse, a series of legal issues are still leading to situations 
where this spouse is put at a disadvantage. 

  The  unequal  access  to  expensive  specialised  legal  advice  is  putting  economically 
weaker spouses on an unequal footing, notably in complex and unpredictable cases 
caused  by  issues  such  as  rush  to  court/forum  shopping  or  the  lack  of  common 
minimum standards on the hearing of the child and the representation of the child in 
court.  

  The  impossibility  for  spouses  to  choose  the  competent  court  by  common 
agreement  makes  it  impossible  to  conclude  agreements  that  could  protect  the 
economically weaker spouse from a rush to court/forum shopping in the event of an 
intention to divorce. 

  The vagueness of the concept of habitual residence of the child has in some cases 
led to prolonged disputes about jurisdiction in cases of parental responsibility matters. 
This  can  be  particularly  burdensome  for  the  economically  weaker  spouse  who  may 
not be able to afford adequate legal advice and representation. 

  Even  though  mediation  is  broadly  acknowledged  as  a cost-effective way  of  finding 
sustainable solutions that are acceptable to vulnerable spouses in international family 
conflicts, it is insufficiently promoted by the Central Authorities.  

Well-being of the child and the parent-child relationship 

While the Regulation has improved the situation for children in cross-border cases to some extent, 
several shortcomings were still identified in this regard.  

  As  concerns  the  establishment  of  jurisdiction,  difficulties  in  assessing  the  child’s 
habitual  residence  in  a  State  lead  to  delays  and  create  uncertainty  and  stress  in 
detriment  to  the  well-being  of  the  child.  Furthermore,  having  a  determination  of 
custody and access rights pending, as well as holding proceedings in a Member State 
that is not the centre of the child’s life, might prevent or complicate contact between 
the child and the parents.  

  Difficulties related to the hearing of the child and his/her representation in court 
lead  to  uncertainty  and  to  cases  where  judgments  are  not  recognised  or  enforced 
because of doubts that the hearing of the child was carried out effectively.  

  Issues with enforcement, such as delays or in particular non-enforcement of a return 

order following abduction, result in a particularly stressful situation for the child.  

  The difficulties with the interpretation of the time limit for return in cases of child 
abduction  is  an  important  concern,  as  the  longer  the  child  is  away,  the  greater 
becomes  the  possibility  of  irremediable  consequences  for  the  child’s  relationship  to 
the left-behind parent. 

  Delays  and  additional  stress  still  occur  because  the  involvement  of  Central 
Authorities  and  local  child  welfare  authorities  is  not  always  efficient  and  effective, 
and alternative means of conflict resolution (in particular, mediation) are not used to a 
sufficient extent. 

3.6.4  Efficiency 

Compared to domestic cases, international cases in matrimonial matters and parental 
responsibility are typically more cost- and time-intensive. Additional costs and delays are regularly 
linked to factors such as travelling, translation and interpretation, a need for lawyers specialised in 
international family law, a need for specialised legal advice to deal with the unfamiliarity and 

161 | P a g e  

 
 
unpredictability of foreign law systems, and potentially additional administrative paperwork (e.g. for 
the recognition of foreign judgments). Nonetheless, if the Brussels IIa Regulation did not exist, 
these costs related to international proceedings would still arise at a similar level. 

The Brussels IIa Regulation itself has generated very limited costs, which are mainly related to the 
operation of the Central Authorities as well as the awareness-raising and training activities for legal 
practitioners and citizens. 

Overall, the analysis of the practical operation of the Brussels IIa Regulation (i.e. its effectiveness) 
and the assessment of the costs and delays generated by the instrument point to a good relationship 
between benefits and costs, i.e. a satisfactory level of efficiency. 

However, some evidence shows that the efficiency of the Brussels IIa Regulation has not reached 
its full potential due to insufficient promotion of mediation as an alternative conflict resolution 
mechanism, as well as to insufficient efforts to foster awareness and knowledge of the instrument 
among citizens and legal practitioners. 

3.6.5  EU added value and utility 

There is nothing to indicate that the Member States could have achieved the same results without 
EU intervention, i.e. without the Brussels IIa Regulation. The Brussels IIa Regulation is serving the 
legitimate interests of EU citizens, who have certain expectations of the functioning of the internal 
market and an effective common judicial area. 

162 | P a g e  

 
 
 
 
ANNEX IV – WHO IS AFFECTED BY THE INITIATIVE AND HOW 

Title of issue 

Preferred policy option  

Practical implications for individuals 

Practical 
authorities/ courts 

implications 

for 

national 

Party autonomy in matrimonial matters 

Status quo 

The  operation  of  the  Regulation  in  the 
international legal order 

Status quo 

s
r
e
t
t
a
m

l
a
i
n
o
m
i
r
t
a
M

No specific impact. 

No specific impact. 

to  consolidate 

Since  this  option  would  entail  no  change,  the 
problems described above would persist. Parties 
wishing 
their  matrimonial 
proceedings would continue to be able to do this 
only by bringing also parental responsibility and 
maintenance  issues  before  one  of  the  courts 
having  jurisdiction  for  the  divorce  under  the 
Regulation.  The  perceived  problem  of  rush  to 
court  would  continue  to  exist  with  regard  to 
those Member States which have not yet joined 
Rome III. 

Approximately  200'000  citizens  are  involved 
every  year  in  an  international  divorce.  This 
number  has  to  been  narrowed  down  to  the 
spouses  who  would  like  to  benefit  of  the 
possibility to choose a court. 

This  option  has  implications  for  EU  citizens 
who live in a third State but retain strong links 
with  a  certain  Member  State  and  want  to  get 
divorced.  This  policy  option  assumes  that  no 
legislative initiatives bringing about substantive 
changes would take place at EU level. This does 
not  exclude,  however,  a  clarification  of  the 
Regulation's  rules  determining  in  which  cases 

163 

 
 
 
 
 
 
 
 
 
 
 
and under which conditions Member States may 
apply their rules on residual jurisdiction. 

This  option  has  practical  implications  for  the 
parents  and  the  children  involved  in  a  parental 
child  abduction  case.  It  is  estimated  that  there 
are up to 1,800 cases of child abduction within 
the  EU  every  year.  This  obligation  will  not 
create  any  new  obligations  for  the  concerned 
individuals. The improvements of the procedure 
will lead to fewer delays and more effectiveness 
of the return procedure. 

The return procedure in cases of parental 
child abduction 

second 

instance 

Establishment of a separate time frame of 
6  weeks  for  the  proceedings  before  the 
requested Central Authority, the first and 
plus 
court 
the 
introduction  of  several  new  elements  to 
make 
the  system  more  efficient  and 
effective  (in  particular  concentration  of 
jurisdiction,  limitation  to  one  appeal, 
creation  of  jurisdictionn  for  court  of 
refuge  to  order  protective  measures  if 
necessary). 

Placement of the child in another Member 
State 

Creation  of  an  autonomous  consent 
procedure  to  be  applied  to  all  cross-
border  placements,  flanked  by  a  time-
limit  for  the  requested  Member  State  to 
respond to the request 

This  option  has  implications  for  children  who 
are  being  placed  in  an  institution  or  a  foster 
family  in  another  Member  State.  Between  300 
and  400  children  per  year  are  affected  by  this 
option. 

This  option  will  not  create  any  obligations  for 
the  concerned  individuals.  The  cross-border 
placement  procedure  will  be  improved  by 
reducing delays. 

y
t
i
l
i
b
i
s
n
o
p
s
e
r

l
a
t
n
e
r
a
P

164 

The introduction of specialised courts implies a 
reattribution of tasks between the courts within 
one  Member  State  and  the  compliance  with 
new procedural rules. This could lead to a shift 
of  costs  from  one  court  to  another.  New  costs 
will  not  be  generated,  except  in  some  cases 
funding  for  additional  training  for  the  judges 
might  be  required.  However,  in  the  long  term 
the  specialised  courts  would  contribute  to  cost 
savings due to efficiency gains. As the number 
of  return  procedures  is  generated  by  the 
number  of  parents  abducting  a  child,  it  is  not 
expected  that  the  improved  rules  will  lead  to 
more return procedures. 

This option has implications for the Courts and 
Central  Authorities  as  new  procedural  rules 
will be introduced. Channelling all applications 
through  Central  Authorities  will  slightly 
increase  their  workload.  However,  this  option 
will lead to cost savings as the current first step 
of  inquiring  whether  consent  is  necessary  is 
eliminated. The Central Authority can focus on 
the  handling  of  the  cases  rather  than  requiring 
to  complete  pending 
further 
requests.  As  the  number  of  placements  is 
generated by the needs of particular children, it 
is  not  expected  that  the  improved  rules  will 

information 

 
 
 
 
 
 
lead to more requests for placements. 

The  abolition  of  exequatur  will  diminish  the 
workload  of  the  courts.  From  an  overall 
perspective, the obligation to hear the child will 
in total not increase the workload and costs of 
Courts. As the hearing of the children is often a 
trigger  of  disputes  on  the  enforceability  of  a 
judgment,  clearer  rules  on  the  hearing  of  the 
child and an obligation the report on this in the 
judgement  will  lead  to  fewer  applications  on 
refusal  of  recognition  or  enforcement  on  the 
ground that the child rights were violated. 

Recognition 
judgments 

and 

enforcement 

of 

Abolition  of  exequatur  with  appropriate 
safeguards  to  be  invoked  at  the  stage  of 
enforcement 

and 

concering 
the  child: 
the  hearing  of 
Introduction  of  an  obligation  to  give  the 
child an opportunity to express his or her 
views 

implications  for  all 

This  option  has 
the 
individuals  who  want  to  have  their  judgements 
on custody and placement decisions enforced in 
another Member State and therefore need to get 
an  exequatur  in  the  Member  State  where 
enforcement is sought. 

an 

exequatur.  As 

This  option  will  eliminate  the  obligation  of 
obtaining 
additional 
proceedings  will  be  abolished,  delays  will 
decrease.  The  uninform  refusal  grounds  for 
enforcement  will  enhance  the  predictability  of 
the  enforcement  proceedings.  The  abolition  of 
the  exequatur  procedure  will  lead  to  tangible 
cost  savings  as 
for  exequatur 
proceedings can  amount to  1'100  - 4'000 EUR. 
In case of appeal, however, the associated costs 
are higher. 

the  costs 

The  introduction  of  an  obligation  to  give  the 
child an opportunity to express his or her views 
the 
will  affect  all  children 
proceedings. 

involved 

in 

Cooperation 
Authorities 

between 

National 

Clarification  of  the  Central  Authorities' 

This  option  has  implications  for  individuals 
who  are  involved  in  specific  cases  on  parental 
responsibility  in  which  the  Central  Authorities 
have 
tasks  such  as 
exchange  information  on  the  situation  of  a 

to  undertake  specific 

Central  Authorities  which  have  so  far  not 
provided the required information  will have  to 
respond  to  such  requests;  this  may  increase 
their workload. With respect to the cooperation 
authorities,  Central 
with 

child  welfare 

165 

 
 
 
 
the 

consists  mainly 

of 
Authorities'  work 
transferring  the  requests  to  those  authorities 
which  draw  up  the  social  reports.  The  latter 
authorities  might  receive  more  requests.  In 
existing 
total, 
obligations  will  lead  to  cost  savings  as  the 
proceedings will be shortened and streamlined. 
The  Central  Authorities  might  need  to  re-
organise  their  internal  tasks  and  procedures  to 
fulfil the requirements of the Regulation. 

clarification  of 

the 

For  some  Member  States  the  obligation  to 
provide their   Central  Authority with adequate 
resources  is  likely  to  generate  additional  costs 
(in  particular  for  human  resources)  if  their 
Central  Authorities 
not 
sufficiently equipped. 

currently 

are 

and other requested authorities' tasks and 
addition  of  an  article  on  adequate 
resources 

child.  In  the  last  three  years  the  Central 
Authorities  registered  annually  between  500 
and  770  incoming  requests  on  the  exchange  of 
information. 

introduce  any  new 
This  option  will  not 
obligations  for  the  individuals  concerned,  but 
they  will  be  able  to  benefit  from  several 
improvements. 

166 

 
 
 
 
ANNEX 5 – GLOSSARY OF LEGAL TERMS 

Term 

Definition 

Authentic instrument 

Central Authority 

Certificate 

Child Abduction 

Choice of court agreement 

Divorce 

Enforcement 

Exequatur procedure 

Exorbitant rules of jurisdiction 

Forum  

This  is  a  document  recording  a  legal  act  or  fact  whose 
authenticity is certified by a public authority. 

A  national  authority  designated  by  the  Member  State  to 
support  parents  and  courts  in  cross-border  parental 
responsibility  cases  and  to  cooperate  with  the  other 
Central  Authorities  to  ensure  the  smooth  application  of 
the Regulation. 

In  the  context  of  the  Regulation  this  term  refers  to  a 
document issued  by a court or authority which confirms 
the  enforceability  of  a 
that  certain 
standards of procedures were met. 

judgment  and 

Removal  of  the  child  to  another  State  or  retention  there 
by  a  person  (most  often  a  parent)  in  violation  of  the 
custody  rights  of  a  person  or  body  (most  often  the  left-
behind  parent  when  both  parents  have  joint  custody  for 
the child). 

An agreement by which parties agree that any present or 
future  dispute  arising  out  of  their  relationship  should  be 
resolved by a particular court. 

Legal  dissolution  of  a  marriage  by  a  competent  court  or 
authority 

The  act  of  a  public  authority  by  which  a  judgment  or 
administrative order is put into practice through coercive 
measures against the judgment debtor. 

Formal  court  procedure  by  which  a  foreign  judgment  is 
declared enforceable (i.e. "validated" for enforcement) in 
the state where enforcement is sought. 

Rules  of  jurisdiction  in  which  the  court  seized  does  not 
possess  –  by  internationally  agreed  standards  -  a 
sufficient  connection  with  the  parties  to  the  case,  the 
circumstances  of  the  case,  the  cause  or  subject  of  the 
action.  

A judicial body, e.g. a court or tribunal, where a dispute 
can be brought 

167 

 
 
 
 
 
Forum necessitatis  

Habitual residence 

Hague  Conference  on  Private 
International Law 

International couple 

Jurisdiction/International 
jurisdiction 

Legal separation 

Lis pendens or litispendence  

[Latin, ‘forum of necessity’] Forum which may  exercise 
jurisdiction when no other forum is reasonably available. 

Habitual residence is not defined by the Regulation. The 
European  Court  of  Justice  has  indicated  that  "habitual 
residence"  under  the  Regulation  "must  be  interpreted  as 
meaning  that  it  corresponds  to  the  place  which  reflects 
some  degree  of  integration  by  the  child  in  a  social  and 
family  environment.  To  that  end,  in  particular  the 
duration,  regularity,  conditions  and  reasons  for  the  stay 
on the territory of a Member State and the family’s move 
to  that  State,  the  child’s  nationality,  the  place  and 
conditions  of  attendance  at  school,  linguistic  knowledge 
and the family and social relationships of the child in that 
State must be taken into consideration." 

An  intergovernmental  organisation  with  its  seat  in  The 
Hague,  NL,  which  is  working  for  the  progressive 
unification, by means of international conventions, of the 
rules of private international law. 

Spouses who are habitually residing in different Member 
States,  have  different  nationalities  or  have  the  common 
nationality of a Member State, but are habitually residing 
in another Member State. 

Jurisdiction  is  the  power  conferred  upon  a  court  or 
tribunal to hear a specific case; international jurisdiction 
is the competence of the courts of a particular country to 
hear a case. 

A "weakening" of the marriage bound by a decision of a 
competent authority by which the duties of marriages are 
redefined and the obligation to live together and to build 
a  marriage  community  ends  while 
the  duty  of 
maintenance remains. 

[Latin, ‘pending suit’] Situation in which at the moment 
when one court is  seised, another  court is  already in  the 
process of examining the same dispute. 

Matrimonial matters 

In  the  context  of  the  Regulation  this  term  refers  to  civil 
matters of divorce, separation and marriage annulment. 

Member State of origin 

The Member State where a decision was given. 

Member State of refuge 

The Member State to which the child was removed or in 
which the child is retained by one of the parents in breach 
of rights of custody of the other. 

Parental responsibility 

All rights and duties relating to the person or the property 

168 

 
 
 
Perpetuatio fori 

Recognition 

Residual jurisdiction 

"Rush to court" 

The 1980 Hague Convention 

The 1996 Hague Convention 

of a child which are given to a natural or legal person by 
judgment, by operation of law or by an agreement having 
legal  effect.  The  term  includes  rights  of  custody  and 
rights of access. 

A principle of procedural law that a court may continue to 
exercise jurisdiction until it has rendered a judgment that is 
final and no longer open to appeal, even if in the meantime 
there has been a change in the circumstance on which 
jurisdiction was originally based. In some jurisdictions 
perpetuatio fori even means that jurisdiction continues to 
persist even after a judgment has become final, but according 
to the Court of Justice this interpretation does not apply 
under the Regulation. 

The  act  of  accepting  a  judgment  or  other  act  of 
sovereignty of another State and giving it the same effect 
in one's own State which it has in its State of origin. 

Refers to the jurisdiction that is left to be determined by 
national  law  where  the  Union  law  currently  does  not 
provide  any  basis  of  jurisdiction  for  a  particular  dispute 
in any of the Member States. 

Informal  term  used  in  the  context  of  the  Regulation  to 
describe a spouse's behaviour to apply for divorce before 
the other spouse does so to ensure that the law applied in 
the  divorce  proceedings  will  safeguard  his  or  her  own 
interests. 

The Hague Convention of 25 October 1980 on the Civil 
Aspects of International Child Abduction is a multilateral 
treaty adopted in the framework of the Hague Conference 
on  Private  International  Law,  which  seeks  to  protect 
children  from  the  harmful  effects  of  abduction  and 
retention  across  international  boundaries  by  providing  a 
procedure to bring about their prompt return. 

The  Hague  Convention  of  19  October  1996  on 
Jurisdiction,  Applicable  Law,  Recognition,  Enforcement 
and  Co-operation  in  Respect  of  Parental  Responsibility 
and  Measures  for  the  Protection  of  Children  is  a 
multilateral treaty adopted in the framework of the Hague 
Conference on Private International law, which covers a 
wide  range  of  measures  of  protection  concerning 
children,  from  orders  concerning  parental  responsibility 
and contact to public measures of protection or care, and 
from  matters  of  representation  to  the  protection  of 
children’s property. 

169 

 
 
 
 
Annex 6 – Choice of court under EU family law instruments 

Brussels IIa 

Which court can be chosen? 

For divorce or separation: not allowed 

Maintenance 

Parental responsibility: parents can choose a court with 
which the child has a substantial connection (i.e. child's 
nationality or the State of the habitual residence of the 
parent)  

For spouses: 
- a court of a Member State in which one of the parties is 
habitually resident, 
- a court of a Member State of which one of the parties has 
the nationality, 
- the court which has jurisdiction to settle the spouses' 
disputes in matrimonial matters, or 
- a court of the spouses' last common habitual residence for 
a period of at least one year. 

For children: 
A court of a Member State 
- in which one of the parties is habitually resident, or  
- of which one of the parties has the nationality. 

Matrimonial 
Property 
Regimes 

Spouses can choose a court of a Member State 
- whose law was chosen by the parties, or 
- where divorce is being dealt with 

170 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
ANNEX 7 – NUMBER OF APPEALS ON RETURN ORDERS IN CHILD ABDUCTIONS 
PROCEDURES303 

Jurisdictions with one ordinary challenge 

State / jurisdiction  
Name of first instance court  
Bulgaria  
Sofia City Court  
(court has 30 days to decide following receipt 
of the application)  

Cyprus  
Family Court  

Czech Republic  
District Court (Okresní soud – there are 75)  
Finland  
Helsinki Court of Appeal  
Germany  
Family Court (concentration by venue rules on 
22 courts in Germany)  

Italy  
Juvenile Court (Tribunale per i minorenni)  
Malta  
Family Court (currently made up of two 
judges) 
Romania  
Tribunal for minors and the family Bucharest 
Slovakia  
District Court (Okresný súd) 
Spain  
Judge of First Instance or Family Judge 

Name of second instance court  
Deadline for filing appeal  
Sofia Court of Appeal  
14 days from day of hearing where decision 
was pronounced with reasons if party was 
present  
14 days from notification of decision if party 
was not present  
(court has 30 days to decide the appeal)  
Supreme Court  
14 days; extension possible but difficult 
procedure and almost never approved  
Court of Appeal (Regional Court)  
15 days  
Supreme Court  
14 days from day that decision was given  
Court of Appeal (Higher Regional Court – 
Oberlandesgericht)  
immediate appeal (sofortige Beschwerde)  
2 weeks from receipt of decision  
Supreme Court (Corte di Cassazione)  
60 days from service of decision  
Court of Appeal  
20 days from date of the decision 

Court of Appeal Bucharest  
10 days from receipt of decision 
Regional court (Krajský súd)  
15 days from service of decision 
Audiencia provincial  
5 days from notification of decision 

303 Source: Hague Conference on Private International Law, Enforcement of orders made under the 1980 Convention 
- A comparative legal study -,drawn up by Andrea Schulz, First Secretary,  Preliminary Document No 6 of October 
2006  for  the  attention  of  the  Fifth  meeting  of  the  Special  Commission  to  review  the  operation  of  the  Hague 
Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (The Hague, 30 October – 9 
November 2006). 

171 

 
 
                                                            
Jurisdictions with two levels of ordinary challenge 

State / jurisdiction  
Name of first instance court  
Austria 
District Court (Bezirksgericht) 
(concentration by venue rules on 16 courts in 
Austria) 

Name of second instance court  
Deadline for filing appeal  
Court of Appeal (Landesgericht) 
14 days from service of decision (plus 14 days 
for other party to reply before file is transferred 
from first instance to Court of Appeal) 

France 
Tribunal de Grande Instance 
(concentration by venue rules on 30 courts in 
France plus 6 in the overseas territories) 

Court of Appeal (Cour d’appel) 
15 days from service against a decree 
(ordonnance) 
1 month from service against a judgment 

Greece 
Court of First Instance 

Luxemburg 
Tribunal d’arrondisement 
(there are 2 in Luxemburg: in the city of 
Luxemburg and in Diekirch) 

Court of Appeal 
- 60 days from service of decision for party 
living abroad 
- 3 years if decision was not served 
Court of Appeal (Cour d’appel) 
- 8 days from service for opposition against 
default decision 
- 15 days from service for appeal against other 
decision 

Name of third instance court  
Deadline for filing appeal 
Supreme Court (Oberster Gerichtshof) 
appeal on points of law (ordentlicher / 
außerordentlicher Revisionsrekurs) 
14 days from service of decision (plus 14 days 
for other party to reply) 
Supreme Court (Cour de Cassation) 
2 months from service (plus 2 extra months for 
parties residing abroad) 

Supreme Court (Court of Cassation) 
- 90 days from service 
- 3 years if decision was not served 

Supreme Court (Cour de Cassation) 
2 months (plus extra time for parties residing 
abroad where applicable for recours en 
cassation; the rules concerning extra time 
depending on the distance are complex; e.g., the 
extra time for those living in Europe is 15 days) 
- beginning from service for contradictory 
decisions 
- beginning from day where no opposition is 
possible any more (i.e. after 9 days) for default 
decisions 
opposition against 2nd instance default decisions 

172 

 
 
 
 
 
(where 1st instance was not also given in 
default) 
8 days from service 

State / jurisdiction  
Name of first instance court  
Netherlands 
Children’s Judge within the Court of First 
Instance 

Jurisdictions with two levels of ordinary challenge 

Name of second instance court  
Deadline for filing appeal  
Court of Appeal 
2 weeks from date of decision 

Name of third instance court  
Deadline for filing appeal 
Supreme Court (Hoge Raad) 
4 weeks from date of decision 

Sweden 
Stockholm District Court (Tingsrätt) 

Stockholm Court of Appeal (Svea Hovrätt) 
3 weeks 

Supreme Court (Högsta domstolen) 
3 weeks 
leave by Supreme Court required 

United Kingdom (England & Wales) 
High Court 

Court of Appeal 
14 days after decision unless court fixed 
different period or appeal court alters time limit 

House of Lords 
3 months from date on which decision was given 

United Kingdom (Northern Ireland) 
Family Judge at the Family Division of the High 
Court 

Court of Appeal 
6 weeks after decision was filed 

House of Lords 
3 months from date on which decision was given 

173 

 
 
United Kingdom (Scotland) 
Court of Session 

Inner House of the Court of Session 
21 days from date of decision 

House of Lords 
3 months from date on which decision was given 

174 

 
 
 
Annex 8 - The time for obtaining exequatur in the Member States304 

Member State 

Average duration of first instance 
exequatur procedure 

Average duration of appeal proceedings 
against exequatur 

Austria 

1 week 

n/a 

Belgium 

1-4 months 

Cyprus 

1-3 months 

Czech Republic 

n/a 

Estonia 

Finland 

France 

3-6 months 

2-3 months 

10-15 days 

Germany 

3 weeks 

Liège: 1 year; Antwerp: 1 year; Brussels: up 
to 2 years 

n/a 

n/a 

6 months to 1-2 years 

6 months 

n/a 

1-6 months; applications which obviously 
have no chance of success are immediately 
closed within a period of 1-2 weeks 

Greece 

10 days – 7 months 

6-10 months 

Hungary 

1-2 hours 

3 months (in more than 50% of the cases) 

1 week or more 

n/a 

Milan: 20-30 days; Bolzano: 7-20 days 

About 2 years 

Ireland 

Italy 

Latvia 

10 days 

Lithuania 

up to 5 months 

Luxembourg 

1-7 days 

2-6 months 

up to 2 months 

10-12 months 

Malta 

Exemplary single cases with procedures 
concluded within days up to three months 

First hearing after 2 years, decision 3-12 
months later 

Netherlands 

n/a 

Poland 

Portugal 

Slovakia 

Slovenia 

Spain 

1-4 months 

n/a 

n/a 

n/a 

n/a 

Sweden 

2-3 weeks 

n/a 

1-3 months 

4-5 months 

n/a 

2-12 months 

2-4 months 

n/a 

304  Source:  European  Commission;  Commission  Staff  Working  Paper  SEC(2010)  1547  final  ,  see  http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2010:1547:FIN:EN:PDF  

175 

 
 
 
                                                            
Member State 

Average duration of first instance 
exequatur procedure 

Average duration of appeal proceedings 
against exequatur 

United Kingdom 

England & Wales: 1-3 weeks 

England & Wales: 1-2 months 

Scotland: n/a 

Scotland: n/a 

176 

 
 
 
 
 
Annex 9 – Examples of cooperation between Central Authorities 

Example 1: A Polish father seeking access to his child living in Germany 

A  Polish  father  living  in  Poland  brings  access  proceedings  in  Germany  where  his  son  lives 
together with his German mother to which the Polish father was never married. The mother 
has sole custody. The German court seised with the request of the father for access requires a 
social report about the father from Poland in order to assess whether the father is fit to have 
access  with  his  son  in  general,  and  whether  the  father’s  situation  in  Poland  also  allows  to 
grant  him  the  right  to  have  contact  with  the  child  at  his  home  in  Poland  and  not  only  in 
Germany. The Regulation does not mention the possibility to obtain a social report about the 
father from Poland which must then be obtained under the Evidence Regulation. 

In  contrast,  if  the  father  were  living  in  Switzerland,  a  State  party  to  the  1996  Hague  Child 
Protection Convention, the father could request a social report from the Polish authorities in 
support of his access application brought in the courts of Switzerland. All EU Member States 
are  parties  to  the  1996  Hague  Convention,  and  in  relations  among  them,  the  Regulation 
prevails  over  the  Convention.  The  result  is  that  EU  citizens  bringing  access  proceedings  in 
non-EU-Member  States  can  avail  themselves  of  the  1996  Hague  Convention  and  obtain  a 
social report to support their access application while EU citizens bringing access proceedings 
in another Member State – with or without the assistance of the Central Authorities - do not 
have this possibility unless the court seised makes use of the Evidence Regulation. 

Example  2:  Request  for  information  on  pending  proceedings  concerning  siblings  and 
judgments already given 

A  three-year  old  boy  and  his  one-year  old  sister  have  been  taken  into  care  by  the  Austrian 
child  protection  authorities  because  their  single  mother  maltreated  them.  The  mother  just 
moved to Austria eight months ago. Before that, she lived in Scotland where her three elder 
children were equally taken into care and placed in foster families. Before making its decision 
on the two youngest children, the Austrian court wants to obtain information through Central 
Authority channels on whether there are pending proceedings in Scotland on the two youngest 
children. The court also asks for copies of the decisions on the taking into care of the older 
children,  and  for  any  social  reports  on  the  siblings  and  their  relationship  with  each  other 
(including the two children now in Austria) and on the mother which might be available. The 
Scottish  authorities  inform  that  there  are  no  proceedings  –  pending  or  closed  -  on  the  two 
youngest children. They refuse to provide information about the siblings and the mother as the 
Regulation only provides for the transfer of information about “the child”, i.e. the child who is 
the object of the proceedings giving rise to the request for information. 

177 

 
 
 
 
 
 
 
Annex 10 – Human resources at Central Authorities  

Information has been requested from the Central Authorities about their resources and the costs 
relating to the management of the implementation of the Brussels IIa Regulation. The objective 
was to obtain a better picture of the difficulties and the workload Central Authorities have to face. 
In addition, it provides contextual information that may to help understanding the potential lack 
of data concerning some indicators. 

Nine Central Authorities provided additional information on their resources and costs, but for 
most of them it was incomplete. The scarceness of data provided can be explained by the fact that 
Central Authorities did not want to release certain information (in particular concerning their 
budget), or were not in the position to gather some types data. 

The main findings are as follows. 

  Budget of Central Authorities 

No quantitative information could be collected regarding the budget of Central Authorities.305 
Some Central Authorities referred to their duty of secrecy (in particular for those which are part 
of national ministries). In addition, this question was difficult to answer for most of the Central 
Authorities because many do not have a separate budget from their parent administration. 

  Human resources 

The data collected concerning the human resources made available to Central Authorities 
highlights significant differences between the Central Authorities of the different Member States. 
These disparities can partially be explained by the different sizes of the countries, as well as their 
tendency to host foreign population. 

Member State 

Estonia 

Number of Full-Time Equivalents 
(FTE) 
2 

France 
Central Authority in charge 
with Article 56306 
Germany 

Latvia 

Luxembourg 

Malta  

Poland 

Portugal  

2 

23 

2 

2 

2,5 

3,75 

5 

305 Responses have been received only from France and Poland. 
306 In the case of France, which has two Central Authorities in charge with different articles of the Brussels IIa Regulation, only 
the Central Authority in charge of Article 56 responded to this question, yet without providing quantitative data. 

178 

 
 
 
                                                            
Assessing these figures, one may note that the French Central Authority in charge of Article 56 of 
the Brussels IIa Regulation has, for example, the same number of full-time employees as the 
Latvian or Luxembourg Central Authorities (that are, however, in charge of the entire Brussels 
IIa Regulation). The number of full time employees of the German Central Authority is 
particularly high compared to the other Central Authorities. 

In spite of the differing needs in the Member States, some Central Authorities from smaller 
countries complained about the heavy workload and the general lack of resources. This lack of 
resources often also entails an impossibility to publish regular and reliable statistics. 

  Processing time for Brussels IIa Regulation-related matters 

Information on the time required to process Brussels IIa cases has only been provided by the 
French Central Authority in charge of Article 56 of the Brussels IIa Regulation and the Estonian 
Central Authority. 

As far as the French Central Authority is concerned, the time spent on each case is estimated at 
2.5 hours. Since 12 cases have been dealt with in 2012, this represents a workload of 30 hours, 
which corresponds to an average week of work of a civil servant (cadre A). The work directly 
relating to the Brussels IIa Regulation is thus to be estimated at around 2% of an FTE. 

At the Estonian Central Authority, most of the work concerns the management of the requests 
coming under the co-operation agreements. Child abduction matters only represent 25% of an 
FTE. 

Without giving precise figures, most of the respondents underlined the fact that they have to deal 
with several international conventions, and that the Brussels IIa Regulation is only a limited part 
of their overall activity. For example, the Central Authority of Luxembourg also deals with the 
Maintenance Regulation and the Hague Convention of 1980. 

179 

 
 
 
 
Annex 11  – General, specific and operational objectives 

Issues  

General objectives 

Specific Objectives 

Party autonomy 
and "rush to 
court" in 
matrimonial 
matters 

(a)  to  enhance  access 
to court 
(b)  to  ensure  sound 
administration 
of 
justice 

The operation of 
the Regulation 
in the 
international 
legal order 

(a) 
to ensure equal 
access to justice in the 
Union for both spouses 
(b) 
to enhance 
sound and efficient 
administration of justice 

to facilitate the 

to limit "rush to 

to increase party 

(a) 
autonomy and thereby 
enhance predictability 
for international divorce 
proceedings 
(b) 
consolidation of different 
family proceedings 
(c) 
court" and thereby 
reduce related costs 
(a) 
regulatory framework on 
international jurisdiction 
in divorce cases in the 
EU and its Member 
States 
(b) 
flexibility for courts to 
take into account 
proceedings pending in 
third States 

to simplify the 

to introduce 

The return 
procedure in 
cases of parental 
child abduction 

(a) 
to deter 
abductions, protect the 
parent-child relationship 
and thereby safeguard 
the best interests of the 
child 

to ensure swift 

(a) 
and safe return of the 
child to his or her State 
of habitual residence and 
thereby simplify the 
child return procedure 

180 

Operational 
Objectives 
(a) to introduce the 
possibility for spouses to 
choose a court by 
agreement 
(b) to introduce the 
possibility for a court to 
transfer jurisdiction to 
another Member State 

(a) to change the 
complex interaction 
between the Regulation's 
current reference to 
national rules on 
residual jurisdiction and 
the limitations 
protecting the defendant 
spouse 
(b) to introduce a rule 
enabling courts to take 
account of proceedings 
between the same parties 
on the same subject 
matter which are 
pending in a third State 
(a) to clarify and 
strengthen the role of the 
court of origin  
(b) to introduce a clear 
and realistic time frame 
for issuing an 
enforceable return order 
(c) to concentrate the 
handling of the return 
cases by experienced 
judges 
(d) to reduce appeal 
possibilities and the 
provisional 
enforceability of the 
judgments 
(e) to ensure that the 
protective provisional 
measures have cross-
border effects 
(f) to ensure that the 
child's right to be heard 
is respected, even if the 
child is not physically 

 
 
 
present, in accordance 
with UNCRC and the 
Charter 

(a) to introduce 
minimum requirements 
for applications for 
consent 
(b) to set time limits for 
authorities to respond to 
requests 
(a) to put in place rules 
that ensure speedy 
recognition and 
enforceability of 
judgments  
(b) to ensure that right of 
the child to be heard is 
guaranteed by a clear 
provision and thereby 
avoid unnecessary non-
recognition of 
judgments 
(c) to provide rules to 
clearly establish when 
enforcement can be 
refused 
(d) to establish time 
limits for the overall 
duration of the 
enforcement 
proceedings 
(e) to give the possibility 
to a judge in the State of 
origin to declare a 
judgment provisionally 
enforceable 
(a) to clarify the 
obligations of Central 
and other national 
authorities under the 
cooperation article of the 
Regulation 
(b) to establish time 
limits for national 
authorities to respond to 
requests for information 
under the Regulation 

Placement of the 
child in another 
Member State 

to safeguard the 
(a) 
best interests of the child 
by ensuring that children 
in need can be placed 

to simplify the 

(a) 
procedure for cross-
border placements of 
children by reducing the 
delays  associated with it 

Recognition and 
enforcement of 
judgments 

(a) to protect the best 
interests of the child and 
the relationship between 
children and their parent 

Cooperation 
between 
national 
authorities 

to enhance 

(a) 
cooperation between the 
national authorities and 
thereby better protect 
parents and children in 
cross-border proceedings 
(b) 
cross-border cooperation 
between the Central 
Authorities 

to simplify the 

(a) 
to simplify the 
procedure by reducing 
delays and costs in 
relation to the 
recognition and 
enforceablity of 
judgments as well as 
their enforcement 
(b) 
mutual trust between the 
Member States overall 
and in particular relating 
to the hearing of the 
child and the child's best 
interests 

to consolidate 

to reduce delays 

(a) 
associated with cross-
border cases concerning 
children, thereby 
safeguarding the best 
interests of the child 
to increase 
(b) 
mutual trust among 
national authorities,in 
particular Central 
Authorities, cooperating 
in child matters across 
borders 

181 

 
 
Annex 12  – Monitoring and evaluation 

Evaluation criterion 
To ensure that citizens in international 
families with a close connection to the EU 
are guaranteed access to court in a suitable 
Member State 

To increase predictability, clarity, and 
reliability for citizens involved in cross-
border cases 

To ensure that citizens do not have to 
provide additional administrative 
documents and/or follow additional 
proceedings to have judgments, authentic 
instruments and agreements recognised or 
enforced 
To safeguard the best interests of the child 
and the parent-child relationship 

To reduce delays associated with cross-
border cases 

To ensure the protection of fundamental 
rights 

Indicators 

  The number of cases where EU courts found that they lacked 

jurisdiction under the Regulation (courts' statistics) 

  The number of citizens potentially affected by interpretation 
problems and varying application of the Regulation in the 
Member States 

  The number and proportion of international families involved in 

‘problematic’ and non-complicated cases 

  The number of preliminary ruling requests to the ECJ 
  Qualitative evidence concerning the types of documents 

needed for the proceedings, as well as the associated costs. 

  The number of citizens in international families (EUROSTAT) 
  The number of children affected by international divorces and 

legal separations (EUROSTAT) 

  The number of children born outside marriage (EUROSTAT) 
  The number of international child abductions handled by the 

Central Authorities  

  The length of the child return proceedings under the Regulation 

(data collected by the Central Authorities) 

  The length of the proceedings in cases of the cross-border 
placement (data collected by the Central Authorities) 

  The extent to which the Regulation ensures the protection of 

the rights of the child, the right to respect for private and family 
life, the right of access to court, the right to non-discrimination 
and the right to proper administration. This data could be 
associated with the number of cases lodged before the ECtHR. 

182