The Brussels II Regulation 2003

Enforceability of judgments concerning rights of access and the return of a child

Immediate enforceability of judgments in other Member States

The Brussels II Regulation 2003 encloses, in Section 4 of Chapter III (‘Recognition and enforcement’), special rules on the enforceability of certain judgments concerning rights of access and of certain judgments which require the return of the child. This Section does away with the exequatur in the Member State of enforcement for judgments that have been certified in the Member State of origin. As a result, the judgment shall be treated for enforcement purposes as if it were given by a court in the Member State of enforcement itself. In order to get this result, the court of origin must follow strict formalities at the process of giving its judgment. It must, first of all, comply with the conditions of Article 40 and Article 42 BR II 2003. Secondly, it must issue a specific certificate and deliver it to the court of the Member State where its judgment will be enforced.

Nevertheless the normal exequatur procedure of Section 2 of Chapter III of the Brussels II Regulation 2003 stays open to achieve the recognition and enforcement of these judgments in other Member States. Sometimes this is the only way, namely when not all requirements are met to make use of the possibility to acquire immediate enforceability. Should a judgment not benefit from certification pursuant to this Section, it may still be recognized and enforced by applying the provisions of Sections 1 and 2 of Chapter III of the Brussels II Regulation 2003 (Article 40(2) BR II 2003). This could, for instance, concern a default judgment on rights of access. Default judgments are judgments given in a case where one of the parties has not appeared at all, not in person and not by means of a solicitor who represents him. The special rules on enforcement of Section 4 do not apply to such judgments as far as it concerns rights of access.

As regards default judgments a distinction is drawn between rights of access and the return of the child. On the one hand, abolishing exequatur for rights of access does not apply to default judgments (the alternative would have been to set out minimum standards on the service of documents). On the other hand, this is not a concern in cases of child abduction given their nature as well as the elaborate cooperation mechanism foreseen in Chapter III of the Brussels II Regulation 2003.

As regards Article 23(e)(f) BR II 2003, it should always be possible to invoke the existence of an irreconcilable later judgment at the enforcement stage under the law of the Member State of enforcement. This is the case today, for instance, where the second judgment is issued after the first judgment has obtained the exequatur but before any action for enforcement has been undertaken.

As regards Article 23(a) BR II 2003, the ground of public policy is not expected to be invoked often for the non-recognition of judgments under Brussels II 2003. Should Member States have specific concerns about situations where this may still be relevant, they can make specific proposals in this respect.

As regards the right to be heard of other holders of parental responsibility (Article 23(d) BR II 2003, their views would normally be taken into account in both rights of access and return cases. Should this not have been the case, the original judgment can be appealed and may be modified accordingly.

Judgments concerning rights of access (Articles 40 and 41)

On condition that at least one of the parties has submitted a request or lawsuit at the court of origin (within the stated time-limit), this court gives a judgment about the rights of custody and access of the parties, and it can order as a result that the child must be returned to one of the parties, even if this would mean that, contrary to a judgement of the requested court of the other Member State, it has to come back to the Member State where it had its habitual residence immediately before it was abducted. Access rights are directly recognised and enforceable under the Brussels II Regulation 2003.

‘One of the main objectives of the Regulation is to ensure that a child can maintain contact with all holders of parental responsibility after a separation even when they live in different Member States. The Regulation will facilitate the exercise of cross-border access rights by ensuring that a judgment on access rights issued in one Member State is directly recognised and enforceable in another Member State provided it is accompanied by a certificate. The consequence of this new rule is two-fold: (a) it is no longer necessary to apply for an “exequatur” and (b) it is no longer possible to oppose the recognition of the judgment. The judgment is to be certified in the Member State of origin provided certain procedural safeguards have been respected. The new procedure does not prevent holders of parental responsibility from seeking recognition and enforcement of a judgment by applying for exequatur under the relevant parts of the Regulation if they wish to do so (Article 40(2)) (Practice Guide 2005, p. 25).

Article 40(1)(a) BR II 2003 indicates that Section 4 of Chapter III shall apply to rights of access. Subsequently, Article 41 BR II 2003 enfolds specific rules concerning the enforceability of judgements with regard to rights of access. With respect to rights of access, the scope of Section 4 was initially limited to parents, as national laws were regarded to differ considerably on the issue of rights of access of holders of parental responsibility other than parents. This limitation has been repealed afterwards.

‘2. Which access rights are concerned?
“Access rights” include in particular the right to take a child to a place other than the habitual residence for a limited period of time (Article 2(10)).
The new rules on access rights apply to any access rights, irrespective of who is the beneficiary thereof. According to national law access rights may be attributed to the parent with whom the child does not reside, or to other family members, such as grandparents or third persons.
“Access rights” include all forms of contacts between the child and the other person, including for instance contact by telephone or e-mail.
The new rules on recognition and enforcement apply only to judgments that grant access rights. Conversely, decisions that refuse a request for access rights are governed by the general rules on recognition’ (Practice Guide 2005, p. 26).

Paragraph 1 of Article 41 BR II 2003 states the basic principle whereby a special procedure in the Member State of enforcement shall not be required for the recognition and enforcement of judgments that have been certified in accordance with the provisions of this Section. ‘The rights of access referred to in Article 40(1)(a) granted in an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2. Even if national law does not provide for enforceability by operation of law of a judgment granting access rights, the court of origin may declare that the judgment shall be enforceable, notwithstanding any appeal’ (Article 41(1) BR II 2003).

Paragraph 2 of Article 41 BR II 2003 sets out the relevant procedural requirements, namely that the judgment was not given in default of appearance and that the child was given an opportunity to be heard having regard to his or her age and maturity. Also a standard certificate must be handed over to the court of the Member State of enforcement. This standard form is drawn up in Annex VI. It guarantees that certain procedural safeguards have been respected during the procedure in the Member State of origin.

‘The judge of origin shall issue the certificate referred to in paragraph 1 using the standard form in Annex III (certificate concerning rights of access) only if:

1. where the judgment was given in default, the person defaulting was served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence, or, the person has been served with the document but not in compliance with these conditions, it is nevertheless established that he or she accepted the decision unequivocally;
2. all parties concerned were given an opportunity to be heard; and
3. the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity. The certificate shall be completed in the language of the judgment’ (Article 41(2) BR II 2003).

‘Where the rights of access involve a cross-border situation at the time of the delivery of the judgment, the certificate shall be issued ex officio when the judgment becomes enforceable, even if only provisionally. If the situation subsequently acquires a cross-border character, the certificate shall be issued at the request of one of the parties’ (Article 41(3) BR II 2003).

‘3. What are the conditions for issuing a certificate?
A judgment on access rights is directly recognised and enforceable in another Member State provided it is accompanied by a certificate, which shall be issued by the judge of origin who issued the judgment. The certificate guarantees that certain procedural safeguards have been respected during the procedure in the Member State of origin.
The judge of origin shall issue the certificate once he/she has verified that the following procedural safeguards have been respected:
- all parties have been given the opportunity to be heard;
- the child has been given an opportunity to be heard, unless a hearing was considered inappropriate having regard to the age and maturity of the child;
- where the judgment was given in default, the defaulting party has been served with the document instituting the proceedings in sufficient time and in a manner enabling that person to prepare his or her defence, or if the person was served with the document but not in compliance with these conditions, it is nevertheless established that the person has accepted the judgment unequivocally.
The judge of origin shall issue the certificate by using the standard form in Annex III in the language of the judgment. The certificate not only indicates whether the abovementioned procedural safeguards have been respected, but it also contains information of a practical nature, intended to facilitate the enforcement of the judgment (e.g. the names and addresses of the holders of parental responsibility and the children concerned, any practical arrangements for the exercise of access rights, any specific obligations on the holder of access rights or the other parent and any restrictions that may be attached to the exercise of access rights). All obligations mentioned in the certificate concerning access rights are, in principle, directly enforceable pursuant to the new rules.
Although this is not regulated in the Regulation, judges may consider that it would be good practice to include in their judgment a description of the reasons why a child has not been given an opportunity to be heard.
If the procedural safeguards have not been respected, the decision will not be directly recognised and declared enforceable in other Member States, but the parties will have to apply for an exequatur to this end (see chapter V).

4. When shall the judge of origin issue the certificate? (Article 41(1)(3))

This depends on whether, at the time that the judgment is delivered, the access rights are likely to be exercised in a cross-border context.

(a) The access rights involve a cross-border situation

If, at the time the judgment is issued, the access rights concern a cross-border situation, e.g. because one of the parents is a resident of or plans to move to another Member State, the judge shall issue the certificate of his/her own initiative (“ex officio”) when the judgment becomes enforceable, even if only provisionally. The national laws of many Member States provide that judgments on parental responsibility are “enforceable” notwithstanding appeal. If national law does not enable a judgment to be enforceable, whilst an appeal against it is pending, the Regulation confers this right on the judge of origin. The aim is to prevent dilatory appeals from unduly delaying the enforcement of a decision.

(b) The access rights do not involve a cross-border situation

If, at the time the judgment is delivered, there is no indication that the access rights will be exercised across national borders, the judge is not obliged to deliver the certificate. However, if the circumstances of the case indicate there is an actual or potential chance that the access rights will have a cross-border character, judges may consider it good practice to issue the certificate at the same time as the judgment. This could, for instance, be the case where the court in question is situated close to the border of another Member State or where the holders of parental responsibility are of different nationalities. If the situation subsequently acquires an international aspect, e.g. because one of the holders of parental responsibility moves to another Member State, either party may at that time request the court of origin that delivered the judgment to issue a certificate.

5. Is it possible to appeal against the certificate? (Article 43 and Recital 24)

No, it is not possible to appeal against the issuing of a certificate. If the judge of origin has committed an error in filling in the certificate and it does not correctly reflect the judgment, it is possible to make a request for rectification to the court of origin. The national law of the Member State of origin shall apply in that case.

6. What are the effects of the certificate?

- A judgment on access rights, which is accompanied by a certificate, is directly recognised and enforceable in other Member States (Articles 41(1), 45)

The fact that the judgment on access rights is accompanied by a certificate entails that the holder of access rights may request that the decision is recognised and enforced in another Member State without any intermediate procedure (“exequatur”). In addition, the other party may not oppose the recognition of the judgment. Consequently, the grounds of non-recognition listed in Article 23 do not apply to these judgments. A party who wishes to request the enforcement of access rights in another Member State shall produce a copy of the judgment and the certificate. It is not necessary to translate the certificate, with the exception of point 12 concerning the practical arrangements for the exercise of access rights.

- The certificate ensures that the judgment is treated in the other Member State as a judgment issued in that Member State for the purpose of recognition and enforcement (Article 44, 47)

The fact that a judgment is directly recognised and enforceable in another Member State means that it is to be treated as a “national” judgment and be recognised and enforced under the same conditions as a judgment issued in that Member State. If a party does not comply with a judgment on access rights, the other party may directly request the authorities in the Member State of enforcement to enforce it. The enforcement procedure is not governed by the Regulation, but by national law (See chapter VIII).

7. The power of the courts in the Member State of enforcement to make practical arrangements for the exercise of access rights (Article 48)

Enforcement can be rendered difficult or even impossible if the judgment contains no or insufficient information on the arrangements of access rights. To ensure that the access rights can nevertheless be enforced in such situations, the Regulation gives the courts of the Member State of enforcement the power to make the necessary practical arrangements for organising the exercise of access rights, whilst respecting the essential elements of the judgment. Article 48 does not confer jurisdiction as to the substance on the court of enforcement. The practical arrangements ordered pursuant to this provision cease therefore to apply once a court of the Member State having jurisdiction as to the substance of the matter has issued a judgment’ (Practice Guide 2005, p. 26-28)

Judgments ordering the return of a child (Article 42)

Article 40(1)(b) BR II 2003 states that Section 4 of Chapter III shall apply also to the return of a child entailed by a judgment of the court of origin given pursuant to Article 11(8) BR II 2003. Article 42 BR II 2003 especially deals with the enforcement of judgments to return the child.

Paragraph 1 of Article 42 BR II 2003 states the basic principle whereby a special procedure in the Member State of enforcement shall not be required for the recognition and enforcement of judgments that have been certified in accordance with the provisions of Section 4. ‘The return of a child referred to in Article 40(1)(b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2. Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11(b)(8), the court of origin may declare the judgment enforceable’ (Article 42(1) BR II 2003).

Paragraph 2 sets out the relevant procedural requirements, namely that the child was given an opportunity to be heard having regard to his or her age and maturity and that a standard certificate must be handed over to the court of the Member State of enforcement, which guarantees that certain procedural safeguards have been respected during the procedure in the Member State of origin. The standard form in Annex VII must be used for this certificate. ‘The judge of origin who delivered the judgment referred to in Article 40(1)(b) shall issue the certificate referred to in paragraph 1 only if:

1. the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity;
2. the parties were given an opportunity to be heard; and
3. the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention. In the event that the court or any other authority takes measures to ensure the protection of the child after its return to the State of habitual residence, the certificate shall contain details of such measures.

The judge of origin shall of his or her own motion issue that certificate using the standard form in Annex IV (certificate concerning return of the child(ren)). The certificate shall be completed in the language of the judgment’ (Article 42(2) BR II 2003).

As described above (….), a court that is seised with a request for the return of a child pursuant to the 1980 Hague Convention shall apply the rules of the Convention as complemented by Article 11 of the Regulation. If the requested court decides that the child shall not return, the court of origin will have the final say in determining whether or not the child shall return.
If the court of origin takes a decision that entails the return of the child, it is important to ensure that this decision can be enforced quickly in the other Member State. For this reason, the Regulation provides that such judgments are directly recognised and enforceable in the other Member State provided they are accompanied by a certificate.
The consequence of this new rule is two-fold: (a) it is no longer necessary to apply for an “exequatur” and (b) it is not possible to oppose the recognition of the judgment. The judgment shall be certified if it meets the procedural requirements (….).
The judge of origin shall issue the certificate by using the standard form in Annex IV in the language of the judgment. The judge shall also fill in the other information requested in the Annex, including whether the judgment is enforceable in the Member State of origin at the time it is issued.
The court of origin shall in principle deliver the certificate once the judgment becomes “enforceable”, implying that the time for appeal shall, in principle, have elapsed. However, this rule is not absolute and the court of origin may, if it considers it necessary, declare that the judgment shall be enforceable, notwithstanding any appeal. The Regulation confers this right on the judge, even if this possibility is not foreseen under national law. The aim is to prevent dilatory appeals from unduly delaying the enforcement of a decision’ (Practice Guide 2005, p. 40).

Hearing the child (Articles 23, 41, 42)

‘The Regulation emphasises the importance of giving children the opportunity to express their views in proceedings concerning them. Hearing the child is one of the requirements for the abolition of the exequatur procedure for access rights and decisions entailing the return of the child (see chapters VI and VII). It is also possible to oppose the recognition and enforcement of a judgment relating to parental responsibility on the basis that the child concerned was not given the opportunity to be heard (see Chapter V).

The Regulation sets out the main principle that a child shall be heard in proceedings that concern them. As an exception, a child may not be heard if this would be inappropriate having regard to the child’s age and maturity. This exception should be interpreted restrictively.

The Regulation does not modify the applicable national procedures on this question (Recital 19). In general, listening to the child needs to be carried out in a manner which takes account of the child’s age and maturity. Assessing the views of younger children needs to be done with special expertise and care and differently from adolescents.
It is not necessary for the child’s views to be heard at a court hearing, but they may be obtained by a competent authority according to national laws. For instance, in certain Member States, the hearing of the child is done by a social worker who presents a report to the court indicating the wishes and feelings of the child. If the hearing takes place in court, the judge should seek to organise the questioning to take account of the nature of the case, the age of the child and the other circumstances of the case. In any situation it is important to enable the child to express his or her views in confidence.

Whether the hearing of the child is carried out by a judge or another official, it is of the essence that that person receives adequate training, for instance how best to communicate with children and to be aware of the risk that parents seek to influence and put pressure on the child. When carried out properly, and with appropriate discretion, the hearing may enable the child to express his or her own wishes and to release him or her from a feeling of responsibility or guilt.

Hearing the child may have different purposes depending on the type and objective of procedure. In a proceeding concerning custody rights the objective is usually to assist in finding the most suitable environment in which the child should reside. In a case of child abduction the purpose is often to ascertain the nature of the child’s objections to return and why they have developed, and also to ascertain whether, and if so in what way, the child may be at risk. There is always a possibility that parents try to influence the child in such cases (Practice Guide 2005, p. 43-44).

New removal of the child to another Member State (Article 42)

It must be emphasised that the decision of the court of origin is automatically enforceable in all the Member States and not only in the Member State in which the decision of non-return was pronounced. This results clearly from the wording of Article 42(1) and corresponds to the objective and spirit of the Regulation. A (new) removal of the child to another Member State has therefore no effect on the decision of the court of origin. It is not necessary to start a new procedure for the return of the child pursuant to the 1980 Hague Convention, but merely to enforce the decision of the court of origin.