Enforcing parental responsibility decisions under Brussels II ter: refusal and suspension

On December 12, 2022, in Brussels, the closing conference of the European FILIT project held a panel on the enforcement of parental responsibility decisions under the Brussels II ter Regulation. Moderated by Nadia Rusinova, it brought together Haldi Koit of the European Commission, Aleksandra Asscheman of The Hague University, and me, covering refusal and suspension of enforcement. Here are the key takeaways, along with the presentation materials.

A reversal of logic

Regulation (EU) 2019/1111 of June 25, 2019, known as Brussels II ter, makes all parental responsibility decisions immediately enforceable as a matter of principle and abolishes the declaration of enforceability. The aim is to cut the length and cost of cross-border proceedings: the foreign decision is treated as if it had been given in the State of enforcement. In a reversal of the original logic, the only remaining procedure is the application for refusal of enforcement, before the "authorities competent for enforcement," which may be judicial or not depending on the State (Recital 60).

Only parental responsibility decisions are concerned: divorce decisions are recognized, not enforced, and their financial consequences fall under other regulations.

Six grounds for refusal, only one for privileged decisions

Under Article 41, enforcement may be refused on the grounds for refusing recognition set out in Article 39: a manifest breach of the public policy of the State of enforcement, taking into account the child's best interests; a default judgment where the document instituting proceedings was not served in time; infringement of the parental responsibility of a person who was not given an opportunity to be heard; irreconcilability with a later decision concerning the same child; placement of the child in another Member State without following Article 82; and, finally, failure to give a child capable of forming views an opportunity to express them.

That last ground calls for particular care. Hearing the child, now a rule under Article 21, is also a ground for refusing recognition of authentic instruments and agreements (Article 68(3)): keep it in mind when drafting a divorce by mutual consent (divorce par consentement mutuel). Enforcement cannot, however, be refused merely because the court of origin used a different hearing method from the State of enforcement (Recital 57). For privileged decisions, which grant contact rights or order a child's return notwithstanding a non-return decision, only one ground is available: irreconcilability with a later decision. More generally, for all decisions, the jurisdiction of the court of origin may not be reviewed (Article 69) and a breach of the lis pendens rules may not be invoked (Recital 56).

The refusal procedure and suspension

The applicant produces a copy of the decision and the certificate; the enforcement authority may require a translation. The applicant needs no address in the State of enforcement but must be represented if that State's law so requires. Refusal may be partial, with enforcement still possible for the rest (Article 53), and either party may appeal under the law of the State of enforcement.

Article 56 allows enforcement to be suspended where the enforceability of the decision has been suspended in the State of origin, without the authority having to investigate actively absent any indication (Recital 67), or where an ordinary appeal has been lodged or is still possible. Exceptionally, enforcement is suspended if it would expose the child to a grave risk of physical or psychological harm because of circumstances arising after the decision; it resumes as soon as that risk ceases, and it is refused if the risk is lasting and no appropriate measure can address it. For privileged decisions, an application for refusal or for withdrawal of the certificate may also justify suspension.

How the Regulation interacts with national law

The Regulation seeks a balance between harmonization and State sovereignty. The enforcement procedure and the procedure for an application for refusal are governed by the law of the State of enforcement (Articles 51 and 59), which also decides whether grounds for refusal are examined of the authority's own motion (Recital 62). National grounds for suspension or refusal may still be invoked if compatible with the Regulation (Article 57): a formal error in the enforcement measure, a decision already enforced, impossibility owing to force majeure, or the serious illness, imprisonment or death of the person to whom the child was to be handed over (Recital 63). Finally, the enforcement authority may specify contact arrangements that were not sufficiently organized, while respecting the essential elements of the decision (Article 54) and the prohibition of review on the merits (Article 71), for instance with the help of a child protection service or a child psychologist (Recital 61). The goal: enforcement that is as little traumatic as possible for the child.

Key takeaways

1. 1Enforceable as of rightThe declaration of enforceability disappears for parental responsibility decisions.
2. 2Six grounds for refusalArticle 41 refers to the grounds for refusing recognition in Article 39.
3. 3Hearing the childTo be planned for in all proceedings, including amicable agreements.
4. 4Privileged decisionsContact rights and return notwithstanding a non-return decision: one ground only, irreconcilability.
5. 5SuspensionAvailable pending an appeal or, exceptionally, in case of grave risk to the child.
6. 6National lawThe enforcement procedure remains governed by the law of the State of enforcement.

Training excerpts

General information. This account of a talk reflects only my personal opinion and is not legal advice. The cases mentioned are fictional, or inspired by real cases, modified and anonymized.