Brussels IIa Regulation

The E-Learning Course on the Brussels II bis Regulation is an interactive tool for testing the understanding of issues of conflict of laws in divorce and parental responsibility proceedings before the courts of European Union Member States. Previous to taking this e-learning course it is recommended to read carefully the Handbook on Brussels IIa Regulation where particular attention is paid to good practices. Both these learning tools are addressed to judges, lawyers, central authorities, social services and all practitioners involved in cross-border cases arising out of family crises.

This Course results from the project “EU Judiciary Training on Brussels IIa Regulation: From South to East” (European Commission Grant Agreement Number: JUST/2014/JTRA/ AG/EJTR/6854) lasting from 1 October 2015 until 30 September 2017. The Project was coordinated by the Università degli Studi di Milano – Bicocca (University of Milano – Bicocca), Italy, with project head Prof. Costanza Honorati. Three other co-beneficiary institutions participated in the Project: Universitat de Barcelona (University of Barcelona), Spain, Pravni fakultet Sveučilišta u Rijeci (University of Rijeka Faculty of Law), Croatia, and Lietuvos teisės institutas (Lithuaninan Law Institute), Lithuania.

Co-funded by DG Justice and
Consumers - European Union

General issues

Scope and relation to other legal instruments

General note

The Brussels IIa Regulation is one out of many pieces of a mosaic in legal regulation of cross-border family relations. Rationale of Articles 1-2 and 59-61 of the Regulation is to limit its scope of application. In a complex milleu of interconnected universal and regional legal instruments, a clear understanding of the materia which falls within its domain, as well as of the demarcation to other legal sources, becomes crucial for a proper application of the Regulation.

Match the correct legal instrument to the indicated issue

  • Jurisdiction for matrimonial matters
    Brussels IIa Regulation (Arts. 3-7)
  • Jurisdiction for parental responsibility matters
    Brussels IIa Regulation (Arts. 8-15)
  • Jurisdiction for maintenance matters
    Regulation 4/2008
  • Jurisdiction for matrimonial property matters
    Regulation 2016/1104 (or national law)
  • Applicable law for parental responsibility matters
    The Hague 1996 Convention
  • Applicable law for child abduction
    The Hague 1980 Convention
  • Applicable law for maintenence matters
    Hague 2007 Protocol
  • Applicable law to matrimonial matters
    Rome III Regulation (or national law)
  • Applicable law to matrimonial property matters
    Regulation 2016/1104 (or national law)

True or false

  • The Brussels IIa Regulation applies regardless of the nationality of the parties.
  • The Brussels IIa regulation applies only to nationals of the EU Member States.
  • The Brussels IIa Regulation does not apply to establishing the child-parent relationship.
  • The Brussels II a Regulation applies to issues of administration, conservation or disposal of the child's property.
  • Clasification of a child protection measure as private or public is irrelevant for the application of the Brussels IIa Regulation.
  • Dissolution of registered partnerships falls under the scope of the Brussels IIa Regulation.
  • Same-sex marriages are always excluded from the scope of the Brussels IIa Regulation.
  • The notion of "marriage" has to be interpreted autonomously in the Brussels IIa Regulation.
  • The notion of "right of custody" has to be interpreted autonomously in the Brussels IIa Regulation.
  • The Brussels IIa Regulation displaces the 1890 Hague Convention on Child Abduction.
  • The 1996 Hague Convention on Protection of Children applies when the child has his or her habitual residence in a Contracting State which is a non-EU Member State.
  • The Brussels IIa Regulation applies to issues of applicable law in martrimonial and parental responsibility matters.
  • The rules on recognition and enforcement in the Brussels IIa Regulation applies even when the child has his or her habitual residence in a non-EU Member State.

Matrimonial matters

General jurisdiction

General note

With regard to matrimonial matters, the Brussels IIa Regulation contains uniform rules on jurisdiction in divorce, legal separation and annulment cases. The grounds for determining the jurisdiction of a Member State courts are based on the principle of an objective connection between the one or both spouses the forum State (identified with the criteria of habitual residence and common nationality), to be evaluated at the moment of the commencement of the proceedings.

The grounds for determining the jurisdiction of a Member State courts are based on the principle of an objective connection between the one or both spouses the forum State (identified with the criteria of habitual residence and common nationality), to be evaluated at the moment of the commencement of the proceedings. No space is given to spouses’ autonomy (with the limited exception of the ground of jurisdiction of the habitual residence of either spouses in case of joint application, provided for in Article 3(1)(a) forth indent, infra 4(a)), even if they can choose among several uniform grounds of jurisdiction pre-set in the Regulation. Brussels IIa does not determine the venue ratione loci and materiae of the single judge who should hear the case within the forum State having jurisdiction over the matter: this is left to the internal rules of each Member State.

Under Brussels IIa Regulation the proceedings referring to the matrimonial tie must be dealt with separately and independently from those regarding parental responsibility for the children of the family, in order to ensure equality to all children, included those born outside wedlock, and to more effectively guarantee their best interest.

Identify the grounds for jurisdiction

  • spouses' common habitual residence
  • spouses' last common habitual residence, provided one of them still resides there
  • applicant's habitual residence
  • respondent's habitual residence
  • applicant's habitual residence provided that he or she resided there at least a year prior to the application
  • respondent's domicile
  • either of the spouse's habitual residence provided that the application is submitted jointly
  • place where the marriage was concluded
  • applicant's habitual residence provided that he or she resided there at least six months prior to the application and is national of that Member State
  • spouses' common domicile
  • spouses' common nationality

The notion of "habitual residence"

How to establish where is the habitual residence of an adult person?

Brussels IIa does not contain any definition of habitual residence, but due to the well-established principle requiring a uniform interpretation of EU law, reference to the internal notions of Member States shall be avoided; instead, a uniform autonomous interpretation is required in light of the context of the provisions and of the objectives of the Regulation.

Unlike with children, the CJEU gave no guidance to determine the adult's habitual residence under the Brussels IIa Regulation. Nonetheless, some help can come from other earlier CJEU settled case-law on habitual residence of adults delivered for other areas of law (namely social security and taxation), even if it is not plainly accepted that such a jurisprudence can be applied in matrimonial matters by analogy. Waiting for a future clarifying intervention by the Court, a definition can be found in the often quoted decision Pedro Magdalena Fernández rendered on a case of expatriation allowance of a posted official, where the Court stated that:

«the place of habitual residence is that in which the official concerned has established, with the intention that it should be of a lasting character, the permanent or habitual center of his interests. However, for the purposes of determining habitual residence, all the factual circumstances which constitute such residence must be taken into account» (CJEU, 15 September 1994, Case C-452/93, Fernández, para. 22)

It follows from this and similar cases that the analysis to determine adult’s habitual residence should be preeminently referred to the objective circumstances; the subjective element (i.e. the intention of the spouses) can be of a certain importance as well, even if it would be irrelevant per se.

Common nationality

When the spouses have common nationality?

Under Article 3(1)(b) of the Brussels IIa Regulation, nationality determines the jurisdiction only when it is common to both spouses. The Regulation does not allow the filing for proceedings in the courts of the State where only one partner has his/her nationality, since this would admit the pure forum actoris, that on many occasions would not lead to an objective connection.  Under international law, it is for each Member State to determine the conditions for the acquisition and loss of nationality.

The Regulation does not rule on the consequences of double common nationality to determine the Member State judges having jurisdiction but, as it has been already mentioned (supra, under para. 2), the CJEU specified in the Hadadi case (16 July 2009, C-168/08) that where spouses are each holding the nationality of the same two Member States (French and Hungarian), Article 3(1)(b) precludes the jurisdiction of the courts of one of those Member States (Hungary) from being rejected on the ground that the applicant does not put forward another ‘more genuine’ link with that State, represented in the actual case by the habitual residence protracted for 22 years in France. On the contrary, it is at the claimant’s choice to seise the court of the Member State of one of the two nationalities, being no hierarchy among the different grounds of jurisdiction included in Articles 3-5.

Ancillary grounds of jurisdiction

Which are ancillary grounds?

Pursuant to its Article 4, the Brussels IIa Regulation extends the jurisdiction of the Court based on Article 3 to the counterclaim whenever proceedings are pending on the basis of Article 3, insofar as the counterclaim itself falls within the scope of application of the Regulation. 

Article 5 provides for another ground of jurisdiction to be added to those included in Article 3 and without prejudice to the same provision, precising that a court of a Member State that has given a judgment on a legal separation shall also have jurisdiction for converting that judgment into a divorce, if the law of that Member State so provides. Not all the Member States consider it possible to convert separation into divorce, being them conceived as completely different proceedings, as it happens, for instance in Italy and Germany.

Residual jurisdiction

When may courts resort to national rules on jurisdiction in matrimonial matters?

The CJEU clarified the relations among Articles 3-5, 6 and 7 in its judgment in Sundelind Lopez (CJEU, 29 November 2007, C-68/07, EU:C:2007:740), specifying that national provisions can be applied only in case there is no court of a MS having jurisdiction under Articles 3-5. Moreover, according to Article 17, the court of a Member State, lacking jurisdiction under Brussels IIa Regulation and seised for a case over which the courts of another Member State have jurisdiction pursuant to the same act, has to declare of its own motion that it has no jurisdiction.

Establishing jurisdiction

Ex officio duty

The preliminary stage of adjudicating jurisdiction is subject to verification. Where the court of a MS does not have jurisdiction under Articles 3-5 of the Regulation, it must declare of its own motion the lack of jurisdiction. It is however not required or possible to transfer the matrimonial case to another court. Therefore, if a spouse initiates proceedings in a Member State whose courts do not have jurisdiction on any of the grounds set out in Articles 3-5, those courts cannot claim jurisdiction, not even by reason of the fact that the other spouse makes an appearance to contest the application. Instead, the court not having jurisdiction under Brussels IIa must decline jurisdiction.

Sequence of questions judges consider when deciding on jurisdiction

Parental responsibility

General jurisdiction

General note

The drafters of the Brussels II bis Regulation, in the same vein as the drafters of the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children, chose ‘habitual residence’ of the child, as a primary connecting factor when establishing international jurisdiction in parental responsibility cases. Rationale of this choice is explained in paragraph 12 of the preamble of the Regulation where it is proclaimed that the grounds of jurisdiction in matters of parental responsibility are shaped in the light of the best interests of the child, in particular the criterion of proximity. Therefore, save in exceptional cases (Articles 9, 10, 12 and 13), the jurisdiction in parental responsibility cases lies with courts of the Member State of the child’s habitual residence (Article 8).

Habitual residence of the child

Autonomous definition

There is no single definition of ‘habitual residence’ on the EU level, although this concept as used in these different areas or law or legal instruments embraces certain common elements and is based on similar principles. Same as with regard to various other legal concepts in the so called ’Brussels system’, the CJEU made it clear that the concept of the child’s ‘habitual residence’ under the Brussels IIa Regulation has to be construed autonomously and has to be interpreted in the light of the context of the provisions referring to that concept and the objectives of Regulation (see A, paras. 34 and 35; Mercredi, para. 44 to 46). No reference to any national law is permitted, instead it has to be defined in the context of the provisions and the objective of the Regulation. As apparent from Recital 12, the grounds of jurisdiction are intended to accommodate the best interests of the child and in particular the criterion of proximity.


Fact-based assessment

Establishing the child's habitual residence is a question of fact and not dependent on any legal qualifications. In general, the child’s habitual residence is ascertained through two basic criteria:

  • the physical presence on the territory, as qualified by some degree of integration in a social and family environment (objective criterion) and
  • a certain degree of evidenced intention to create a stable life in the country (subjective criterion).

These criteria derive from the CJEU judgment in A, the first to provide the detailed analysis of the concept of the child’s ‘habitual residence’ in the context of parental responsibility cases. Physical presence and intention complement each other: where the child’s presence is shorter, the strength of the intention may compensate and still provide basis for conclusion in favour of the child’s habitual residence.

What are the two criteria for establishing the child's habitual residence?

What are the circumstances on the child's side that are relevant for establishing his or her habitual residence?

  • duration and regularity of the child’s physical presence in the country
  • child’s enrolment to school or kindergarten
  • child’s enrolment into extracurricular activities
  • parents' last common intention where the child should live
  • child’s registration for the purpose of receiving social benefits
  • child's wishes when heard by the court
  • child’s registration for the purpose of health care and actual use of it
  • child’s family ties in a particular country
  • child's last presence in the country
  • child’s languages spoken and at which level
  • child’s friends and other social connections
  • child's religious beliefs
  • child’s nationality
  • child's affection to a country

Small and older children

Difference in assesing the habitual residence in children of different age

While infants engage mainly in social contacts within their family, small children tend to be more integrated outside the family depending on family circumstances, such as lifestyle, enrollment in kindergarten, etc. Somewhere at the school-going age, children are being increasingly independent and integrated into the wider social environment. They engage in curricula and extracurricular activities, where they constantly meet new children and adults and adopt the ways of the social community they live in.

Small child

In case of an infant or a small child, intention of a primary carer to establish himself or herself in certain country is of particular importance. The younger the children, the more their habitual residence is connected to that of the parent(s) in whose care they are. The state of their physical and intellectual development prevents infants from integrating into society themselves or have an intention to establish habitual residence in a certain State. Consequently, infant’s primary carer becomes the anchor on which his or her habitual residence is determined.

Older child

The courts should analyse the habitual residence of an older child separately from that of his or her primary carer, considering the possibility that a child could be habitually resident elsewhere, for instance with another parent holding no custody rights, with grandparents or other relatives. Moreover, the child’s state of mind as to his or her habitual residence might become relevant.

Jurisdiction based on child's presence

Article 13

In accordance with Article 13, where a child’s habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12 on prorogation of jurisdiction (see Chapter 6), the courts of the State where the child is present have jurisdiction. It is important to stress that the Article 13 is residual in relation to the jurisdictional grounds in the preceding Articles and may only be used after having properly investigated and assessed that no other court in all EU has jurisdiction under Articles 8 and 12.

Residual jurisdiction

Article 14

In order to cover all the possible situations and deal with remaining cases, the Regulation provides for residual jurisdiction, by calling for the application of national rules whenever jurisdiction under the Regulation can not be established. In this respect, Article 14 provides that where no court of a Member State has jurisdiction pursuant to Articles 8 to 13, jurisdiction shall be determined, in each Member State, by the laws of that State.

Article 14 comes into play only in these circumstances: when a court deals with a case related to a child whose residence is outside the EU, who does not claim refugee status and who is not considered to be displaced because of disturbances in their country and there is no possibility of prorogation of jurisdiction. Therefore, to rely on Article 14, the court dealing with a case should – as a necessary precondition – evaluate whether jurisdiction could be established pursuant to Articles 8 to 13. Only if the court finds no jurisdiction in accordance with the Regulation, Article 14 opens the door to jurisdictional rules in national law. In addition, it is important to note that Article 14 can only be used if the child is not habitually resident in a third State which is party to the 1996 HC on Protection of Children (this Convention is applicable to all EU Member States).

Transfer of proceedings

General note

The general rule under Article 8(1) of the Brussels II bis Regulation is that jurisdiction lies with the courts of the Member State in which the child is habitually resident at the time the court is seized. However, Article 15 of the Regulation permits, by way of exception, transfer of proceedings to courts of other Member States. Thus, within the general structure of the Regulation the rule on transfer of proceedings works as an exception to the general rule. Indeed, the main jurisdictional rule on parental responsibility may become too rigid, centered as it is on the principle of sole competence of the court of the child’s habitual residence. In this regard the Article 15 provides some flexibility in exceptional circumstances, however, as an exception to general rules, it should be construed narrowly.

Who may initiate transfer of proceedings?

  • Social worker
  • Seised court
  • Court which has connection to the child
  • State Attorney
  • Parties to the proceeding before the seised court

Child abduction

Applicable instruments

Applicable instruments

The two main legal instruments important in international child abduction cases are the 1980 Hague Convention on the Civil Aspects of International Child Abduction (1980 HC on Abduction) and the Regulation Brussels IIa. The 1980 HC on Abduction can be found here. There almost 100 countries around the world which have signed this convention and are parties to it. The list of the parties to the Convention is managed by the HCCH. The Regulation Brussels IIa, is an EU instrument and bind EU Member States. However, it does not apply to Denmark.

In relations between Member States, Brussels IIa rules take priority over the rules of the 1980 HC on Abduction in all matters covered by the Regulation (Article 60 of the Regulation). Despite of that, 1980 HC on Abduction continues to apply as complemented by the provisions of the Regulation.

Which particular legal instrument is to be applied in child abduction cases depends on the country of the child’s habitual residence and a country to which the child was abducted. A judge practicing on EU might confront three situations in this regard: 

  1. both countries are EU Member States, or
  2. one country if an EU Member State and the other a non-EU Member State but party to 1980 HC on Abduction, or
  3. one country is an EU Member State and the other a non-EU Member State and not party to 1980 HC on Abduction.

What instrument applies in case of child abduction?

  • EU Member States
    1980 HC on Abduction and Brussels IIa Regulation
  • EU Member State and non-EU Member State but party to 1980 HC on Abduction
    1980 HC on Abduction
  • EU Member State and non-EU Member State and not party to 1980 HC on Abduction
    bilateral treaty on legal assistance (if signed) and national law apply

Definition of child abduction

1980 HC on Abduction

Article 3

The removal or the retention of a child is to be considered wrongful where -

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

Brussels IIa Regulation

Article 2(11)

11. the term "wrongful removal or retention" shall mean a child's removal or retention where:

(a) it is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention;

and

(b) provided that, at the time of removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Custody shall be considered to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child's place of residence without the consent of another holder of parental responsibility.

What are the three conditions which have to be cumulatively fulfilled for child abduction to exist In accordance with Article 2(11) of the Regulation Brussels IIa?

  • the child was removed from, or has not been returned to, the Member State of habitual residence
  • there was a breach of the right of custody
  • rights of custody were actually exercised, either jointly or alone, or would have been so but for the removal or retention
  • the child has not given his or her consent for the relocation to another Member State
  • the the social services did not approve of the child's relocation to another Member State
  • the child is still inadequately adjusted in the Member State in which it has been relocated after one year has passed from the relocation

The rights of custody

How to define the rights of custody?

The rights of custody are defined in Article 2(9) of the Regulation: “the term "rights of custody" shall include rights and duties relating to the care of the person of a child, and in particular the right to determine the child's place of residence”.

It is important to note that, as the CJEU has explained in McB, the concept of ‘rights of custody’, defined in Article 2(9) of the Regulation, is an autonomous concept, independent of the law of Member States. As the Court put it, it follows from the need for uniform application of European Union law and from the principle of equality that the terms of a provision of that law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Union, having regard to the context of the provision and the objective pursued by the legislation in question. However, Article 2(11) relies on the existence of rights of custody is conferred by the national law applicable. To put it in a simple way, only national law establishes who has custody right towards a child, but only right to determine the child's place of residence will be taken into account when considering a situation of child abduction. See CJEU, 5 October 2010, C-400/10 PPU, J. McB. v L. E., EU:C:2010:582.

Who has custody right as understood by under Article 2(9) of the Brussels IIa Regulation?

  • None of the answers is precise enough
  • Always the mother and the father of the child
  • The grandmother if she lives with the child and takes case of the child
  • The biological father, if he can prove his paternity
  • The stepfather if he lives with the child and has recognised the child as his own

Jurisdiction in cases of child abduction

Article 10 of the Brussels IIa Regulation

Article 10 of the Regulation Brussels II a provides that an act of abduction of a child does not affect jurisdiction in parental responsibility cases. Therefore, in case of wrongful removal or retention of the child, jurisdiction to decide on the merits of the case (e.g. determining custody rights, residential parent, visitation/access rights, issuing contact order, etc.) is maintained with the court of the state of child’s habitual residence prior to abduction.

Only on strict conditions, listed in Article 10(a) and (b), as an exception to this general rule jurisdiction may be attributed to the courts of the Member State to which the child was abducted.

Article 10(a) allows for transfer of jurisdiction in a situation where:

  • a child has acquired habitual residence in this new State and
  • all persons with rights of custody acquiesced in the abduction.

Article 10(b) allows for transfer of jurisdiction in a situation where:

  • a child has acquired habitual residence in this new State and
  • the child has resided in State of refuge for a period of at least one year after those with rights of custody learned or should have learned of the whereabouts of the child; and
  • one of the four conditions set in 10(b) were fulfilled:
    • (i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;
    • (ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);
    • (iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);
    • (iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.

See CJEU, 1 July 2010, C-211/10 PPU, Povse v Alpago, EU:C:2010:400.

Which of the following confirms father’s true and unequivocal consent consent in a case described below?

Circumstances of the case

The parents and the child lived in Praha, until the mother took the child and decided to move to the UK. The child started school there, they found a house, the mother started working. When the father claimed abduction of the child, the mother said she removed the child with the father’s consent. She also claims the child has acquired habitual residence in the UK. 

  • Certificate from a notary where the father allows the mother with the child to live in another state
  • SMS saying: ‘Do whatever, I am already doubting the child is mine’
  • Pressing ‘like’ on facebook pictures posted by mother from the UK
  • Paying for mother’s and child’s one-way plane tickets
  • Visiting the child in the UK

Procedure in case of child abduction

Article 11 of the Brussels IIa Regulation

Article 11 builds upon the 1980 HC on Abduction, however, it further strengthens its model in intra-EU abduction cases. In particular, it:

- provides a specific duty for the hearing of the child and of the left-behind parent;

- limits the possibility to refuse return of a child, as allowed by the 1980 HC on Abduction (by ordering to hear the child and the party requesting return, and by compelling to use adequate arrangements in regard of Article 13(b) defence);

- speeds-up return proceedings, by requiring the use of the most expeditious procedures, and providing a timeframe not exceeding six weeks and other time-limits;

- mandates for the transmission of all documents to the State of habitual residence;

- establishes a procedure in case a subsequent judgment which requires the return of the child is issued by the court having jurisdiction under the Regulation.

As a general rule, it is the courts of the State of refuge that are approached with the application to return a child and deal with return proceedings. When filed with an application for return under the 1980 HC on Abduction, the courts of the State of refuge should be aware that the procedure before them is not about the future of the child, but about the returning of the child to his original home State so that the custody questions be decided there. The return of the child does not necessary imply returning him/her to the custody of the left behind parent – it only means returning to the State of habitual residence before the abduction.

Therefore, once a national court receives a request to return an abducted child, it is in principle under the duty to issue a decision to return him/her under the 1980 HC on Abduction. However, prior to this the court should make sure abduction indeed took place and there are no grounds to refuse return. Important to remember, that if returning to the State of habitual residence can amount to a risk of harm to the child, adequate arrangements under the Article 11(4) of the Regulation might be established.

Article 11(3) of the Regulation requires the most expeditious procedures available under national law to be applied for decisions on return of a child - except where exceptional circumstances make this impossible, the courts should issue the judgment no later than six weeks after the application is lodged.

.

Articles 11(2) of the Regulation highlights the importance of giving the child the opportunity to be heard during the proceedings. From what age should the child be heard?

  • It varies.
  • 3 years
  • 5 years
  • 6 years
  • 10 years
  • 12 years
  • 4 years

Should the left behind parent also be given opportunity to be heard?

  • Yes, it is required under the Regulation.
  • It is up to the court to decide.
  • No, only the child.

Exceptions for return

General note

Exceptions for return of the child are established in the 1980 HC on Abduction. Under Article 13 of the 1980 HC on Abduction, the return can be refused if:

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

c) the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In addition, Article 12 and Article 20 of the 1980 HC on Abduction provide for additional grounds for refuse. Article 12 refers to situation of inactiveness of the left behind parent in submitting application for return and child’s settlement in a new environment. Article 20 provides that the return of the child may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

 Even though it is not formally a reason to refuse application for return, it is often that the return is refused as the court finds that no abduction took place. This happens when a court considers that a child was not habitually resident in the State of former residence.

What are the exceptions for return under Article 13(b) of the 1980 HC on Abduction?

  • where there is a grave risk that child’s return would expose him/her to physical harm
  • where there is a grave risk that child’s return would expose him/her to psychological harm
  • where there is a grave risk that child’s return would expose him/her to otherwise place the child in an intolerable situation
  • where there is a grave risk that the child's return would expose him/her to economically poorer living conditions
  • where there is a grave risk that the child's return would expose him/her to growing up in the religious environment not approved by adbucting parent

Who bears the burden of proof under Article 13(1)(b) of the 1980 HC on Abduction?

  • the person who opposes return
  • the person who requests return
  • the court has to do it ex officio
  • the central authorities
  • the social services

Which are adequate arrangements under Article 11(4) of the Brussels IIa Regulation?

Adequate arrangements

Article 11(4) of the Regulation restricts the ‘grave risk’ exception foreseen in Article 13(b) of the 1980 HC on Abduction. It in principle establishes, that the child shall always be returned if it is established that adequate arrangements have been made to secure the protection of the child after the return.

  • providing secure accommodation to the mother and/or to the child
  • ensuring that the left behind parent who is considered a source of danger keeps away from the mother and the child upon their return
  • suspending criminal investigation or proceedings towards the abducting parent
  • left-alone parent's promise not to hurt the abducting parent or the child

Overriding mechanism

General note

The procedure envisaged in Article 11(6) to (8) of the Regulation Brussels IIa, often referred to as the ‘overriding mechanism’ or ‘overruling procedure’, is a specific feature of the Regulation and EU child abduction regulation in general.

This procedure can be explained as follows. When the court of the State of refuge issues order refusing the return of the child grounded on Article 13 of the 1980 HC on Abduction, it shall transmit the decision and all the relevant documents to the State of the child’s former habitual residence. The State of the child’s former habitual residence having received such documents notifies the parties.

The parties, mainly the left behind parent, can then file a full custody proceedings before the court of the State of former residence of the child. Such court can then take a decision on custody, placement and access rights of the child in question. In case such decision entails the return of the child, this decision ‘overrides’ the prior non-return order issued in the State of refuge. If afterwards Article 42 certificate is issued, such a decision can be enforced without exequatur or any further procedure being required in any Member States. See CJEU, 11 July 2008, C-195/08 PPU, Rinau, EU:C:2008:406.

In respect of what type of decision issued by the court of the State of refuge should Article 11(6)-(8) procedure apply?

  • Any decision refusing return
  • Only if such decision has not been suspended, overturned, set aside
  • Final decision refusing return

In respect of what type of decision issued by the court of the State of refuge (from the perspective of content) Article 11(6)-(8) procedure might be used?

  • Only decisions refusing return on the ground of Article 13 of the 1980 HC on Abduction
  • When the non-return order is based on the finding that no abduction took place
  • When refusal is grounded on settlement of the child after one year from abduction (Article 12(2))
  • Any decision refusing return, irrespective of arguments in it and its basis