Parental Responsibility EU: The Brussels Regulation 2ter
The Regulation no. 2019/1111, published on July 2, 2019, in the Official Journal of the European Union, regarding jurisdiction, recognition and enforcement of decisions concerning matrimonial matters and parental responsibility in the EU, and also regarding the international abduction of minors, represents the source intended to replace, with effect from August 1, 2022, the current Regulation no. 2201/2003, also known as Brussels II-bis.
With the so-called "Brussels II-ter" Regulation, a further step has been taken in the process of revising the acts of private international law of the European Union.
While confirming the same scope and general structure of this previous regulation, the new one contains numerous amendments and additions.
Parental Responsibility EU: Jurisdiction in Matters of Parental Responsibility
In regard to jurisdiction in matters of parental responsibility in the EU, it is necessary to look at articles 7, 8 and 9 of Regulation no. 2019/1111.
Like the aforementioned articles, the courts of a Member State are competent for questions relating to parental responsibility on a minor, if the latter habitually resides in that Member State on the date on which they are seized.
In the event of a lawful transfer of the residence of a minor from one Member State to another, which becomes his habitual residence, the jurisdiction of the Member State of previous residence still remains for a period of three months from the day of the transfer.
In the event of illegal transfer or non-return of a minor, the judicial authority of the Member State of the previous usual residence retains jurisdiction, until the minor acquires a new residence and:
- each person, institution or other entity holding the right of custody has accepted the transfer or non-return; or
- the child has resided in that other Member State for at least one year since the person, institution or other entity holding the right of custody knew, or should have known, the place in which the child was, and the child himself has integrated into the new environment, besides, at least one of the following conditions has to be met:
- within one year from the moment the holder of the right of custody became aware of, or should have known, the place where the child was, no request for the return of the child has been submitted before the competent authorities of the Member State in which the child has been transferred to or from which he has not returned;
- a request of return submitted by the holder of the right of custody has been withdrawn and a new request has not been submitted within the deadline referred to at point I);
- a request of return submitted by the holder of the right of custody has been rejected by a court of a Member State for reasons other than those referred to in Article 13, paragraph 1, letter b, or Article 13, paragraph 2, of 1980 Hague Convention, and this decision is no longer subject to ordinary appeal;
- no judicial authority has been seized in accordance with Article 29, paragraphs 3 and 5, in the Member State in which the minor had his usual residence immediately before the illegal transfer or non-return;
- the Court of the Member State in which the minor had his usual residence immediately before the illegal transfer or non-return, made a decision on the right of custody that does not involve the return of the minor.
Parental Responsibility EU: How to Proceed in Case of Parental Disputes?
The Court seized first is called upon to verify its jurisdiction; in the event that the dispute submitted for examination does not belong to those recognized to the court, it thus declines jurisdiction ex officio.
If several requests for divorce, separation of spouses or annulment of marriage have been submitted before courts of different Member States and between the same parties, the court, seized second, automatically suspends the proceedings until it has been ascertained the competence of the court seized beforehand.
The "Brussels II-ter" Regulation recognizes as a right of the minor, who is capable of discernment, and in accordance with national law and procedures, the possibility of expressing his or her opinion, directly or through an appropriate representative or body.
Decisions pronounced in one Member State are also recognized in other EU countries, without having to resort to any particular procedure. Indeed, no procedure is required for updating the registry of a Member State following a decision of divorce, separation of the spouses or annulment of marriage that was pronounced in another Member State, and against which it is no longer possible to bring an appeal under the law of that Member State.
A party wishing to invoke in a Member State a decision given by a Court of another Member State must produce:
- a copy of the decision;
- the certificate that has the characteristics referred to in Article 36.
Similarly, decisions on parental responsibility enforced in a particular Member State are also enforceable in other Member States, without the need for a declaration of enforceability.
For the sole purpose of enforcement in another Member State, the court of origin may declare that the decision granting visiting rights is provisionally enforceable, despite any eventual appeal.
Parental Responsibility EU: how can we help you
The Arnone & Sicomo Law Firm has a team of lawyers specialized in international family law. We assist foreigners and European citizens in the procedures concerning custody of minors, and guide them in procedures relating to the execution of decisions in matters of parental responsibility pronounced within the EU.
We actively collaborate with European Consulates and central authorities in the event of cases of international child abduction, and we care for ensuring the rapid resolution of issues related to the illegal transfer of a child to a country other than that of usual residence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.