The recast proposal of Council Regulation (EC) No 2201/2003 of 27 November 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 (hereafter, “the Proposal”) was published on 30 June 2016 by the European Commission, containing, among others, a clarification of the rules on cross-border placement of children. Indeed, the European Commission indicated in its previous Report that “a uniform procedure enabling a swifter and more efficient application of the provisions on the placement of a child in another Member State could be explored”. This post will focus on a brief analysis of the proposed rules on cross-border placement of children.
First of all, it is important to recall what should be understood under cross-border placement of children. As defined in the report prepared by the Committee of Legal Affairs of the European Parliament, it is a child-protection measure established in cases where the child does not have anyone to look after her/him or when she/he needs support due to a mental or physical deficiency or illness. The cross-border element implies that the competent authority of the State having jurisdiction considers that, among other care solutions, the best interests of the child require the measure to be put in place in another State.
Various situations are encompassed under this procedure:
- a child who has no one to be looked after in his/her own State, but someone of his/her extended family (e.g. aunts, grandparents) are better placed to take care of the child in another Member State;
- an unaccompanied refugee child arriving in an EU Member State, where a foster family in another Member State can take care of him/her;
- a child suffering from serious mental illness living in a EU Member State where no adequate treatment can be provided, but which can be provided in another Member State.
In order to appreciate the scale of the use of this procedure, some data can be mentioned. For example in 2015 it was used in 929 cases in Germany, 151 in Spain, 187 in Czech Republic, 133 in Belgium and 89 in Italy.
So far, the CJEU has ruled on this topic in three different cases (notably, “C”, “A” and “Health Service Executive”), which, among other issues, shed light on the scope of application of the Regulation.
The current rules on cross-border child placement have been proven to be unclear. Among others, the problems pointed out are the duality of proceedings, the lack of coordination and clarity of roles between authorities taking part in this proceeding which lead to the required consent given on many occasions late and ex post or the length of the proceedings (which in some cases took about one year to be accomplished). The suggested new wording of the Proposal on the topic, mainly contained in article 65, is briefly described below.
- Unified procedure for cross-border child placement rules: the rules now in force for cross-border child placement envisages two procedures, depending on whether the intervention of public authorities is required for domestic child placements. If the latter intervention is required (which is the rule in the vast majority of the EU Member States), the authorities have to undertake a previous consultation and subsequently grant the consent to that placement. Otherwise, only the information to those authorities is required.
In order to avoid the uncertainity on the applicable procedure, the Proposal has unified the procedure, and consent needs to be granted with following requirements:
- Ex ante and mandatory consent: consent needs to be granted by the requested Central Authority for the cross-border child placement (either in a foster family or in an institution).
- Term: given the urgency of such decisions, the Proposal introduces a two-month term upon receipt of the request for the Central Authority to transmit the decision on the cross-border placement.
- Report on the child: a report on the child and the reasons for the proposed placement or provision shall be included. This report needs to contain the reasons for the proposed placement or provision of care.
- Translation: the Proposal includes a need for translation of the cross-border request and the accompanying documents into the languages accepted by the Member State Central Authority.
- Central Authorities role: communications should be always channeled through Central Authorities.
- Recognition and enforcement of the cross-border placement order:
- Abolition of the ground of non-recognition in case of non-compliance with the cross-border placement procedure, which is now established by art. 23, letter (g).
- Abolition of exequatur: the existing procedure, which is limited to the return procedure and access rights, is to be extended to all decisions, therefore including cross-border placement orders.
Having analysed the amendments of the Regulation, the improvement of the existing rules is generally welcomed, as it will ensure certainty and will assure the best interest of the child in cases of cross-border placement.
Article by Marta Tarragona Fenosa