Study on the assessment of Regulation (EC) No 2201/2003 and the policy options for its amendment : final report : evaluation.
Date: 2018-07-26
Institutions: Directorate-General for Justice and Consumers
Subjects: child protection, civil procedure, cost analysis, divorce, judicial cooperation in civil matters in the EU, judicial separation, jurisdiction, matrimonial law, parental responsibility, private international law, regulation (EU)

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

FINAL REPORT 

Evaluation 

May - 2015 

Justice 

and Consumers 

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

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.  

The study team would like to thank the officials of the European Commission’s 
Directorate-General  Justice  involved  for  their  providing  information  and 
feedback during the course of the assignment. 

DISCLAIMER 

By the European Commission, Directorate-General for Justice. 

The information and views set out in this publication are those of the author(s) 
and  do  not  necessarily  reflect  the  official  opinion  of  the  Commission.  The 
Commission  does  not  guarantee  the  accuracy  of  the  data  included  in  this 
study.  Neither  the  Commission  nor  any  person  acting  on  the  Commission’s 
behalf  may  be  held  responsible  for  the  use  which  may  be  made  of  the 
information contained therein. 

© European Union, 2015. All rights reserved. Certain parts are licensed under 
conditions  to  the  EU.  Reproduction  is  authorized  provided  the  source  is 
acknowledged. 

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EUROPEAN COMMISSION 

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

FINAL REPORT 

Evaluation

2015 

Directorate-General for Justice and Consumers 

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

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

Table of Contents 

1 

Introduction to the report ...............................................................................................................1 

2  Objectives and scope of the Evaluation and the Impact Assessment Study ...................................2 

2.1 

Objectives of the Evaluation and the Impact Assessment Study ............................................2 

2.2 

Scope of the Study ...................................................................................................................2 

3 

Evaluation of the Brussels IIa Regulation .........................................................................................4 

3.1 

Relevance ................................................................................................................................4 

3.1.1  Evolution of the initial problem .......................................................................................... 5 

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

faced by EU citizens .......................................................................................................................... 6 

3.2 

Coherence ...............................................................................................................................9 

3.2.1  Delineation of scope with other EU instruments ................................................................ 9 

3.2.2 

Interrelationships between the Regulation and relevant Conventions ............................ 12 

3.2.3 

Interrelationship with the Nordic Convention .................................................................. 16 

3.3 

Effectiveness ......................................................................................................................... 17 

3.3.1  Achievement of the specific objectives ............................................................................. 19 

3.3.2  Achievement of the general objectives ............................................................................. 52 

3.3.3  Challenges  and  additional  measures  affecting  the  application  of  the  Brussels  IIa 

Regulation in the Member States .................................................................................................. 53 

3.4 

Efficiency .............................................................................................................................. 57 

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 ................................................... 57 

3.4.2  Costs of the Regulation ..................................................................................................... 57 

3.4.3  Could the same effects have been achieved at lower costs? ........................................... 58 

3.4.4  Possible simplification of the Regulation .......................................................................... 59 

3.5 

EU added value and utility ................................................................................................... 60 

3.5.1  EU added value .................................................................................................................. 60 

3.5.2  Utility ................................................................................................................................. 60 

3.6  Main conclusions of the evaluation ..................................................................................... 61 

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

3.6.1  Relevance .......................................................................................................................... 61 

3.6.2  Coherence ......................................................................................................................... 61 

3.6.3  Effectiveness ...................................................................................................................... 61 

3.6.4  Efficiency ........................................................................................................................... 65 

3.6.5  EU added value and utility ................................................................................................ 65 

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

Table of Tables 

Table 1: Specific objectives and their shortened denominations ......................................................... 19 

Table 2: Links between specific objectives, operational objectives and identified high priority issues 21 

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” .................................................................... 25 

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

citizens involved in cross-border cases”................................................................................................ 28 

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

judgments, authentic instruments and agreements” ........................................................................... 34 

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

spouse” .................................................................................................................................................. 37 

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

relationship” .......................................................................................................................................... 41 

Table of Figures 

Figure 1: Objectives tree – Matrimonial matters and parental responsibility ...................................... 18 

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

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. 

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; 

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

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

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.1  

  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 relation to parental 
responsibility, with additional complications and sensitivities e.g. in cases of child abduction2. 

1  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. 
2 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.  

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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 responsibility3.  

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  separation4  (“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 States5.  

3.1.1  Evolution of the initial problem 

High levels of mobility of citizens across Europe6 coupled with international migration are believed 
to  be  leading  to  a  constant  increase  in  the  number  of  international  couples,  as  well  as  of 
international families7, 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. 

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.8  The  Regulation  currently  does  not  seem  to  take  this  trend  into  account. 

3  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.  
4 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.  
5  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).  
6  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 
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.  
7  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/. 

living 

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This can be demonstrated inter alia by the absence of choice of court for the parties in matrimonial 
matters.9  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.10  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. 

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.11  

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.12 

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 

8 “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). 
9 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. 
10 More details on the contextual factors found important for the scope of the Regulation are spelt out in Annex 3. 
11 For information on the role these groups played in arriving at our findings, please see Annex 7. 
12 More details on the issue of same-sex marriages in the context of the Regulation is spelled out in Annex 3. 

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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 judgments13 (on the existence or 
non-existence of a marriage) are covered by the Regulation,14 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, 
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 child15. It includes rights of custody and 
rights of access.16 

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 

13 I.e. legal determination by a court resolving legal uncertainty for the parties, e.g. regarding the existence of the marriage. 
14 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. 
15 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. 
16 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. 

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divorcing parents as previously was a “much needed” expansion of the law17. Overall the Regulation 
is  perceived  to  be  responding  rather  well  to  the  needs  of  holders  of  parental  responsibility.  18 
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,19 this may 
result in legal uncertainty20 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 
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.  

17  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. 
18  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”. 
19 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. 
20 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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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 
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 

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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.21  

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.22  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.23  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.  

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 

21 Tribunal d’arrondissement de Luxembourg, 17 June 2008, case no 11341’ and 113949 
22 Cour d’appel, 30 April 2009, case no 32999; Cour d’appel, 11 March 2010, case no 34352 
23 In Estonia, divorce matters, custody matters, and maintenance matters can all be dealt with in one proceeding. 

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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 Regulation24, 
“[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 another25—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. 

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  consultation26  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 

24 Emphasis added. 
25 Emphasis added.  
26  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. 

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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 consultation27 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  apply28.  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. 

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.29 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 201330 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 

27 i.e. 139 of 163 respondents. 
28 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 
29 Hausmann, IntEuSchR B No. 255, 256 
30 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. 

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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%31 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 
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 
cases32  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  French33 
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.  

31 i.e. 76 of 148 valid responses. 
32 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. 
33 Civ 1, 29 February 2012 n°11-15613.  

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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 comments34, 
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 
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 1980.35 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 

34 International Family Law [2013] pp. 114-118. 
35 Judgment of 11.02.2010, Oberster Gerichtshof, 5 Ob 260/09k. 

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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.36 

In relation to the 1996 Hague Convention, 46%37 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.38  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 
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 Rijeka39, 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. 

36 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. 
37 I.e. 65 out 142 valid responses. 
38 See Hausmann, IntEuSchR B No. 260 with further references to the German legal debate. 
39 No. P.-1278/13 of 10 October 2013. – final. 

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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. 

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 

Shortened denominations 

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 

Access  to  court  for  citizens  in  international 
families with a close connection to the EU 

Specific objective 2: To increase predictability, 
clarity,  and  reliability  for  citizens  involved  in 
cross-border cases 

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 
additional 
proceedings  to  have  judgments  recognised  or 
enforced 

and/or 

follow 

Smooth 
judgments, 
agreements 

recognition  and  enforcement  of 
and 

instruments 

authentic 

Specific  objective  4:  To  ensure  the  protection 
of the economically weaker spouse 

Protection of the economically weaker spouse 

Specific  objective  5:  To  safeguard  the  well-
being  of  the  child  and  the  parent-child 
relationship 

Well-being  of 
relationship 

the  child  and  parent-child 

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  significant40  and  given  high 

40 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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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 
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) 

Matrimonial 
matters 

Parental 
responsibility 

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’  

Horizontal issues 

Potential exclusion of certain people with a close 
connection to the EU from access to a suitable EU court 

Hearing of the 
child 

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) 

Representation 
of the child in 
court 

Different practices related to the representation of the 
child in court 

Hearing of the 
child and its 
representation 
in court (OO2) 

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) 

Hearings under 
Article 11(6) to 
(8) 

Enforcement of 
return orders 

Cooperation 
between Central 
Authorities 

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 

Provisions 
specific to child 
abduction cases 
(OO4) 

Support to 
citizens in cross-
border 
proceedings by 
Central 
Authorities 
(OO5) 

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Barriers to achieving the objectives 

Specific Objective (SO) 

Operational 
objectives (OO) 

Type of issue 

Description of issue 

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) 

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

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  consultation41.  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 
Union42,  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.43 

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 

41 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”. 
42 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:en:PDF  
43 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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suitable court. 
In matters of parental responsibility, jurisdiction is based on the criterion of proximity (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.44 

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.45 46 

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  cases47,  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 

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).48 

Potential exclusion of 
certain people with a 
close connection to 

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.49 In other words, the courts of the Member 

44 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. 
45 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). 
46 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. 
47 A comprehensive analysis can be found in the section “Jurisdiction rules” in Annex 1. 
48 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. 
49 Article 7 for matrimonial matters and Article 14 for parental responsibility 

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the EU from access to 
a suitable EU court 

States  may  avail  themselves  of  national  rules  of  jurisdiction  (so-called 
“residual  jurisdiction”).50  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.51 Indeed, the national rules 
to  determine  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.52  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 

50  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. 
51  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. 
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 
52 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: 
Judicial  Network 
http://ec.europa.eu/civiljustice/divorce/divorce_ec_en.htm.  

in  Civil  and  Commercial  Matters 

the  European 

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Maintenance  Regulation  or  the  Succession  Regulation  (650/2012)  –  the 
Brussels  IIa  Regulation  does  not  provide  for  a  forum  necessitatis53  –  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.54 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.55 

Different 
interpretations of the 
term ‘habitual 
residence’ 

As  discussed  further  under  specific  objective  5  “Well-being  of  the  child  and 
parent-child  relationship”,  there  are  difficulties  in  applying  the  concept  of 
habitual  residence  of  the  child.56  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 

53 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. 
54  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. 
55 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. 
56  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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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 
portals57  or  the  publication  of  guides58  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. 

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 

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. 

57 See for instance European e-justice portal: https://e-justice.europa.eu/content_family_matters-44-en.do  
58  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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Potential for ‘rush to 
court’/’forum 
shopping’ on the basis 
of the alternative 
grounds of jurisdiction 

As discussed further under specific objective 4 “Protection of the economically 
weaker  spouse”,  the  jurisdiction  rules  of  the  Brussels  IIa  Regulation59  leave 
room  for  ‘rush  to  court’  or  ‘forum  shopping’  behaviour.60  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.  

The current 
jurisdiction rules do 
not sufficiently 
promote a common 
agreement between 
spouses 

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 
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. 

(choice  of  court)61  preventing  couples 

Different 
interpretations of the 
term ‘habitual 
residence’ 

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.62 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 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 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. 

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 

59 Notably Article 3 and 19 of the Brussels IIa Regulation. 
60  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. 
61 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. 
62  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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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 

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.63  On  this  basis,  it  is  in  some  cases  difficult  for 
citizens  to  predict  whether  or  not  they  need  go  through  exequatur 
proceedings.64 

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.65  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. 

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 

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 

As  discussed  further  under  specific  objective  5  “Well-being  of  the  child  and 

63  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. 
64 COM(2014) 225 final, p. 10.  
65  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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practical application of 
Article 11(4) and 
ambiguity as regards 
the concept of 
‘adequate 
arrangements’ under 
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 

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  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.66  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. 

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 

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. 

Information and awareness 

Practitioners are not 
sufficiently aware of 
the Regulation, 
leading to the 

Despite  the  measures  taken  by  the  European  Commission  and  the  Member 
States – such as training, information portals67 or the publication of guides68 
and  brochures  –  aiming  at  improving  the  awareness  and  understanding  of 
the  functioning  of  the  Brussels  IIa  Regulation  among  citizens  and  legal 

66 A comprehensive analysis of this issue can be found in the section Problems regarding the actual enforcement of return 
orders in Annex 1. 
67 See for instance European e-justice portal: https://e-justice.europa.eu/content_family_matters-44-en.do 
68  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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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 

practitioners,  several  interviewees  noted  that  awareness  levels  among 
citizens and legal practitioners are low.69 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 

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  EU70,  judgments, 

69 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”. 
70 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) 

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authentic  instruments  and  agreements  should  as  far  as  possible  be  recognisable  and  enforceable 
without  extensive  intermediate  procedures.71  For  both  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;72 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.73 

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.74 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;75 
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.76 

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.77 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 

71 See Recitals (22) - (24).  
72 Article 21.  
73 Articles 22 and 23.  
74 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. 
75 Chapter III, Section 2 of the Regulation.  
76 Chapter III, Section 4 of the Regulation. 
77 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. 

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up to three years in Malta.78 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 
proceedings and 
return procedures 
(leading to difficulties 
related to the 
recognition and 
enforcement of 
judgments)  

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.79  
In  particular,  it  is  possible  for  Member  States  to  refuse  to  recognise  or 
enforce  a  judgment80  on  the  grounds  that  the  child  was  not  given  an 
opportunity  to  be  heard.81  The  fact  that  the  assessment  of  whether  a  child 
should be heard in a specific case (and how) may differ from court to court82 
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.  

Recognition and enforcement 

Different 
interpretations of the 
term ‘recognition’ 
leading to differing 
practices as to which 
judgments require a 
declaration of 

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’.83  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 

78  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).  
79 Recital (19), Brussels IIa Regulation.  
80 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. 
81 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.  
82  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”. 
83 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. 

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enforceability 

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 

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.84 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).  

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.85  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. 

Some decisions on parental responsibility are never enforced due to practical 
obstacles  during  enforcement  procedures.86  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 

84 COM(2014) 225 final, p. 10.  
85 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. 
86 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. 

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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.  

Provisions specific to child abduction cases 

As  discussed  further  under  specific  objective  5  “Well-being  of  the  child  and 
parent-child 
the  actual 
relationship”,  particular  obstacles  hindering 
enforcement of judgments87 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).  

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 automatic88 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.  

87 A comprehensive analysis of this issue can be found in the section Problems regarding the actual enforcement of return 
orders in Annex 1. 
88 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 Union89, 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.90  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 procedures91 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)92  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 

Specific objective 4: Protection of the economically weaker spouse 

Potential for ‘rush to 
court’/’forum 
shopping’ on the basis 
of the alternative 
grounds of jurisdiction 

The jurisdiction rules of the Brussels IIa Regulation93 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).94  Typically,  specialised  legal  advice  is  needed  to 

89 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0389:0403:en:PDF   
90 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. 
91  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). 
92  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 
93 Notably Articles 3 and 19 of the Brussels IIa Regulation. 
94  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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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.95 Indeed, rush to court/forum shopping is mainly exploited by wealthy 
spouses, who take advantage of legal advice to determine which court would 
entail the most advantageous outcome for them.96 

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).97 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 
III  Regulation  and  the  Maintenance 
instruments  (such  as  the  Rome 
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.98  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. 

The current 
jurisdiction rules do 
not sufficiently 
promote a common 
agreement between 
spouses 

Different 
interpretations of the 
term ‘habitual 
residence’ 

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))99.  While  the  effectiveness  and  efficiency  of 
mediation  as  an  alternative  conflict  resolution  mechanism  in  international 

95 N. A. Baarsma, The Europeanisation of International Family Law (Asser Press: 2011) 154 
96 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. 
97 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. 
98  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.  
99 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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is  widely 
cases  of  matrimonial  matters  and  parental  responsibility 
acknowledged100,  its  potential  is  currently  not  fully  exploited,  because  it  is 
not  promoted  to  a  sufficient  extent.101  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. 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 Mediation102; 

  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 

100  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.  
101 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. 
102 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 

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all  the  arguments  and  perspectives  are  taken  into  account.  Thus  future 
conflicts may potentially be avoided.103  

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.104  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 Union105. Article 24 of the Charter stipulates in general terms that the well-being of children 
is to be ensured by 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.106  

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.107  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.108  In  addition,  the  Regulation  allows  for  some  limited  flexibility  to  ensure  that  all 

103 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. 
104 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  
105 http://www.europarl.europa.eu/charter/pdf/text_en.pdf  
106 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.  
107 See also Recital (33) Brussels IIa Regulation.  
108 Article 8. See also Brussels IIa Regulation, Recital (12).  

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cases can be handled in the most appropriate court, even if this might not be in the Member 
State where the child habitually lives.109  

  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.110  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.111 
In addition, the Regulation explicitly stipulates the requirement for a child to be heard in child 
abduction cases.112 

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 
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 

Specific objective 5: Well-being of the child and parent-child relationship 

Different 
interpretations of the 
term ‘habitual 

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 

109 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).  
110 Recital (19), Brussels IIa Regulation.  
111  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.  
112  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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residence’ 

cases, this is considered to be the Member State with the closest connection 
to  the  child.113  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,114  it  is  in 
some cases  very  difficult to  establish  where  the  child  has his/her  ‘habitual 
residence’,115 because there is no definition of the concept. Based on existing 
case-law116, 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.117  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.118 

  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 

113 Recital (12) Brussels IIa.  
114  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.  
115 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.  
116 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. 
117 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. 
118 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.  

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Potential exclusion of 
certain people with a 
close connection to 
the EU from access to 
a suitable EU court 

residence’ has in the end led courts to accept jurisdiction when they were in 
fact  not  best  placed  to  hear  a  case.119  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).  

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 difficulties 
related to the 
recognition and 

The  provisions  of  the  Regulation  currently  leave  a  considerable  level  of 
discretion  to  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.120 Indeed, as pointed out above, the different practices and ideas 

119 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. 
120 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 

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enforcement of 
judgments) 

Different practices 
related to the 
representation of the 
child in court 

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. 

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.121  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.122  In  addition,  in  some  Member 
States123  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  delays124.  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. 

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. 
121 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. 
122 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. 
123  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.  
124 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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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 

time 

Difficulties  relating  to 
for 
the 
return  (i.e.  not  clear 
and not effective) 

limit 

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 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.125 
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 
indications  that 
cases  can  be  handled  smoothly.  There  are 
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.126 
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.127 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 
is  separated  from  his/her  regular 
with  the  abducting  parent,  he/she 

125 ’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 
126  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.  
127  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. 

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Questions on the 
practical application of 
Article 11(4) and 
ambiguity as regards 
the concept of 
‘adequate 
arrangements’ under 
that provision 

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.128 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:  

  According  to  many  national  experts,  respondents  to  the  public 
consultation  and  the  interviewees,  it  is  not  clear  what  the  concept 
‘adequate  arrangements’  entails,  i.e.  which  measures  could  qualify 
as ‘adequate arrangements’.   

  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, 
‘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 

in  the  event  the  court 

is  not  certain  that 

128 See Article 11(4).  

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not  possible  to  establish,  within  six  weeks,  that  ‘adequate  arrangements’ 
have  been  taken.129  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.  

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   

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.130 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).131  Another  practical  problem  relates  to  the  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 

129  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. 
130 See Article 11(6) to (8).  
131 This question was posed to the ECJ in Case C-498/14, David Bradbrooke v Anna Aleksandrowicz.  

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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.132 
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 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 

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 

132 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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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.133  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.  

133  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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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  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.134  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  consultation135  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  is 
deleterious, as placing a child 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. 

  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 

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 

134 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. 
135 60%, i.e. 85 of 141 responses 

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the proceedings 
concerning children 

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 role of the competent authorities and the extent to which 
they should cooperate with the Central Authorities is currently not specified 
in  the  Regulation,136  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: 

  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 information 
from its national welfare authorities. For example, in the context of 
placement  decisions,  the  Central  Authorities  need  to  obtain 
information  from  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 
legal  basis  for  such  forms  of 
cooperation,  there  was  a  case  in  which  the  Czech  Central  Authority 
and  foreign  social  or  local  authorities  cooperated.  In  this  situation, 
the parties involved faced uncertainty because a form of cooperation 
was started that is not legally regulated. 

is  currently  no 

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. 

The use of mediation 
is currently not 
promoted to a 
sufficient extent 

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 Regulation137 is not sufficiently strong 
and  there  are  cases  where  mediation  is  in  practice  not  promoted  by  the 

136 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. 
137 Article 55(e) Brussels IIa.  

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practitioners  involved.  This  is  of  particular  relevance  from  the  child’s 
perspective138.  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 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.139 

Information and awareness 

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. 

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 

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. 

138 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. 
139  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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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 
aimed  at  deterring  parental  child  abduction  between  Member  States  are  regarded  as  particularly 
useful.140 

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 issues141 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  issues142)  –  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 

140 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. 
141  Discussed  in  the  section  on  Effectiveness  and  in  further  detail  in  Annex  1  on  the  “Achievement  of  the  operational 
objectives”. 
142  Discussed  in  the  section  on  Effectiveness  and  in  further  detail  in  Annex  1  on  the  “Achievement  of  the  operational 
objectives”. 

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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 
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 

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 

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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.143  Accordingly,  Kilkelly  (2008)144  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. 

143 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. 
144 Kilkelly, U, Children’s Rights in Ireland: Law Policy and Practice (Haywards Heath: Tottel, 2008). 

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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 

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.145 

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  Regime146  (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 Adults147, which has so far been ratified by six Member States (AT, CZ, DE, 
FI, FR, UK). 

145 See assessment of the specific provisions under the evaluation of the operational objectives above. 
146 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  
147 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.148 

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 
proceedings  on  matrimonial  matters  and  matters  of  parental  responsibility.  Finally,  this  section 
concludes on the overall efficiency of the Brussels IIa Regulation. 

148  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”. 

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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.149 

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.150 

Costs for citizens 

The Brussels IIa Regulation151 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 above152, 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. 

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. 

149 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. 
150  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”. 
151 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. 
152 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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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.153 

Several interviewees noted that currently insufficient information is provided to citizens about the 
Brussels  IIa  Regulation.154  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. 

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. 

153 A comprehensive analysis of this issue can be found in the section “Promotion of mediation” in Annex 1. 
154 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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3.5  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.155  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 
Hague  Convention,  and  the  development  of  mutual  trust  between  the  judicial  systems  of  the 
Member States. 

155 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. 

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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.156  

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.  

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 

156 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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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. 

  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.  

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  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 
legal  certainty  and 

impeding  the 

recognition  and  enforcement  of  judgments,  thus 
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.  

  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 

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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 
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.  

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  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 

international  cases 

Compared  to  domestic  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 
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. 

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