INTRODUCTION

In this chapter, we will explain the role of private international law instruments in seeking to ensure children's right to participation.

Private international law instruments most often do not impose direct duties to hear the child or do not address the opportunity or the methods for child participation in judicial proceedings. This branch of law addresses four issues: which court has jurisdiction to hear disputes linked to two or more legal systems, what the applicable law is, what the conditions for the recognition and enforcement of foreign judgments are, and how authorities can cooperate across borders to solve disputes between individuals. In other words, private international law comprises road signs pointing the way to the legal system within which a certain case should be settled, not detailed traffic rules. Therefore, how children should participate in proceedings is generally a matter for national procedural law.

The fundamental rights of the child must be respected in all actions concerning the child, transnational cases included. This includes children's right to participate in all proceedings concerning them. In this context, the borders between private international law and human rights law are slowly fading, in the sense that the second influences the functioning of the first.

Supranational legislators of private international law are not blind to the importance of child participation, especially when their instruments have as a fundamental objective the protection of the best interests of the child. As will become apparent in this chapter, legislation on private international law more and more frequently makes explicit reference to the protection of the fundamental rights of the child as a primary concern and (at the same time) as a principle inspiring the interpretation and application of its rules.

In this chapter we identify indirect duties and careful nudges by supranational legislators to better respect children's right to participation. This includes explaining the role of private international law instruments like the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the 1996 Hague Child Protection Convention, the Brussels II bis and ter Regulations and maintenance conventions and Regulation.

CHILD PROTECTION

1980 HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

One of the areas in which the issue of child participation has emerged is international child abduction, a phenomenon that has become one of the most important concerns for public institutions since the second half of the 20th century.

INTRODUCTION

The European Enforcement Order (EEO) makes it quicker and easier to have judgments of a court in one EU country recognised and enforced in another for uncontested claims. The EEO Regulation forms part of a series of EU procedural instruments that were launched within the framework of the Area of Freedom, Security and Justice (AFSJ).

The adoption of the EEO Regulation in 2004 has been an important step in the elaboration of this Area, since this instrument abolishes exequatur for uncontested claims. This means that the certification of a judgment as an EEO in one Member State can be enforced in another Member State, without having to go through an intermediate procedure in the latter Member State (Art. 5 EEO Regulation). In fact, ‘a judgment certified as a EEO shall be enforced under the same conditions as a judgment handed down in the Member State of enforcement’ (Art. 20 EEO Regulation). This was at that time completely new in the EU and it has paved the way for the full abolishment of exequatur for civil claims in general, a process that culminated with the launch of the Brussels Ibis Regulation.

In this chapter we provide a brief general outline of the EEO, while the following chapters will deal with the practical application of the EEO in the selected Member States. The following topics will be discussed: the scope of the EEO; the optional nature of the EEO; the entity issuing the EEO; the safeguards of the EEO; and the concept of mutual trust in the EEO. We will also discuss the important question whether the EEO in itself still has a raison d’être, given the various developments regarding EU civil procedure instruments such as the Brussel Ibis Regulation.

THE SCOPE OF THE EEO

CIVIL AND COMMERCIAL MATTERS

The first scope rule of the EEO is that this instrument can be applied only in civil and commercial matters. Art. 2 EEO Regulation states more specifically:

INTRODUCTION

Private international law is that field of the law that regulates the interaction between the private law systems of different States. It is an often forgotten field of law, also in comparative law projects.

In the area of family law the European Union (EU) legislator has been very active over the past 15 years. Many aspects of private international law have been unified. There is EU legislation on divorce, parental responsibility, maintenance, matrimonial property, and the property consequences of registered partnerships. On the international level, the Hague Conference on Private International Law has concluded conventions on child protection (including parental responsibility), the civil aspects of international child abduction, inter-country adoption and maintenance.

The area of the establishment of parenthood is still governed by national private international law rules. As is clear from the national reports in this volume, the rules of substantive law are diverse. Where substantive laws are diverse, it is difficult to agree on common private international rules. Even in the fields where the EU has legislated, the most recent efforts did not result in common private international law instruments throughout the EU, but only in instruments of enhanced cooperation. This is the case for divorce (applicable law), matrimonial property and the property consequences of registered partnerships. The EU has not yet endeavoured to take initiative in the field of parenthood. The International Commission on Civil Status has in the past tackled this issue, but their Conventions deal mainly with children born out of wedlock. They are old and have not been broadly ratified. They do not establish common private international rules, but oblige Contracting States to recognise certain aspects of parenthood from abroad. Since 2015, the Hague Conference on Private International Law has been working on a project on parentage and surrogacy. The work is currently done by an Expert Group and it is as yet unknown what the outcome will be.

INTRODUCTION: BRUSSELS CALLING

During the nineteen-sixties the European Economic Community (EEC) was a regional organisation with only six Member States, all adhering to the continental European civil law legal tradition. They were only at the start of a long process to incorporate their markets. Already at this early stage, it became apparent that in order to ensure the proper functioning of an internal market and to avoid abuses (debtors quickly and easily moving their assets), a regime of the recognition and enforcement of judgments within the EEC was necessary.

From an outside (sometimes referred to as ‘third State’) perspective, two elements of this early choice are significant. First, the focus was on the recognition and enforcement within the EEC: this was an internal initiative serving an internal goal. Its aims were different from the initiatives undertaken by the Hague Conference on Private International Law, which were more global in their nature.

Second, the Member States of the EEC opted for a double convention (sometimes called a ‘mixed convention’), i.e. a convention including provisions not only on recognition and enforcement, but also on jurisdiction. This choice has had a vital impact outside the Member States.

The purpose of this contribution is to examine the effect of the Brussels Ibis Regulation outside its natural place of functioning, namely the EU. Many transactions today are concluded and/or executed partly in the EU and partly elsewhere. This extra-EU effect was not a major concern for the drafters of the previous editions of the Brussels Convention or the Brussels I Regulation (2001 version)4. At the time of the drafting of the Brussels Ibis Regulation, the EU institutions did consider the issue of its global effect. However, only small changes were made. These include a broadened scope for the benefit of certain forum agreements and of EU consumers dealing with companies outside the EU. Important improvements in Brussels Ibis include the limited possibility to decline jurisdiction in favour of courts outside the EU and a yielding to the Hague Choice of Court Convention. All considered, the current calls by Brussels to the world are still insufficient in a global context.