Stop child abductions

Until now, there have been no provisions in EU legislation that deal with the identity of a child. This right is instead listed in Articles 8 and 20 of the UN Convention on the Rights of the Child, which has no enforcement mechanism.

The main objective was, therefore, to amend 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 (the so-called Brussels IIA), which is the main instrument of cooperation in family and matrimonial matters governing the recognition and enforcement of judgments in matters of parental responsibility and matrimonial matters, in order to ensure the rights of the child provided for in that Convention are observed by respecting the child's national, cultural, religious and linguistic identity when he or she is placed with a foster family.

The problem of a child’s identity, which was an issue raised by the Polish delegation, was understood by the other Member States and was firmly supported by the AT Presidency and the European Commission, which also referred to this aspect as a violation of fundamental rights.

On 7 December 2018, the Justice and Home Affairs Council in Brussels unanimously adopted a provision granting the request made by Poland and others (HU, LV).

The said provision of the UN Convention on the right to the protection of the child's identity was introduced in the recitals of the draft amendment to the Brussels IIa Regulation. The working group also succeeded in introducing a mechanism to ensure that this right is implemented and that the child has access to his or her parents or relatives.

This mechanism is based on a system of notification by the country which is conducting child foster custody proceedings, the country with which the child has a significant connection. The other country is informed of the fact that such proceedings are being conducted.

An authority conducting foster custody proceedings that is aware of a child's close relationship with another country, may follow the following procedures at the earliest possible stage of proceedings:

1. the procedure under the regulation, i.e. by notifying the central authority of the Member State with which the child has a significant connection (in Poland – the Minister of Justice), or
2. the procedure under the Consular Convention – Article 37(b) of the 1963 Vienna Convention on Consular Relations.

 

As a result, the authority conducting foster custody proceedings will therefore follow the notification procedure it considers the most appropriate in a given case, taking into account the mandatory character of the Consular Convention.

Such information allows the country with which a child has a significant connection to take appropriate measures to identify and name families from a similar cultural background, and preferably the child's relatives, who are ready to provide foster care for the child.

Notwithstanding the notification, a country interested in the well-being of its citizens may declare that a child has a close connection with that country, for example, the child has relatives in that country who are willing to provide foster care for the child.

The information provided is not binding on the country conducting the proceedings, and the final decision concerning the persons who will be appointed to provide foster care for the child is made by the authority conducting the proceedings, which should consider all the circumstances of the case and be guided primarily by the best interests of the child. Nevertheless, the Regulation obliges the Member States to ensure that, in foster custody proceedings, the child's right to the protection of his or her identity as defined in Articles 8 and 20 of the UN Convention is preserved and, to that end, appropriate measures are taken at the earliest possible stage of those proceedings.

The introduction of the described mechanism will truly help to enhance and strengthen respect for children's rights to their identity. The Brussels IIa Regulation is a well-known and widely used instrument of EU law in cross-border family matters. The introduction of this mechanism in EU law might also render more effective and improve compliance with both the Consular Convention and the UN Convention on the Rights of the Child (which have not always been followed although they are in force in the Member States).

Possible violation by a Member State of the Regulation may lead to:

1. complaints about a violation of a treaty obligation by a Member State, in the event of a violation of the Regulation by the authorities of that Member State. The complaint may be lodged by the European Commission or by another Member State. The European Court of Justice assesses whether a violation has occurred,
2. complaints seeking damages for violation of EU law by a Member State – related to the principle of accountability of public authorities towards individuals, where the state has violated a provision which confers rights on an individual, the violation is sufficiently serious, and there is a causal link between the violation and the damage. The European Court of Justice assesses whether a violation has occurred.

 

We recommend reading the article on this reform (click on the link below)