Observatory on European Studies _ Brussels IIa Regulation Recast and the importance of the new article 21

2021-06-14

Carla Lerin *

Laís Dall Oglio Lorenzini **

Analysing human history with the eyes of the Modern Age and the constant need for legal interpretation that goes along with the protection of human rights, it is inevitable the astonishment in front of the treatment reserved for the children, not only in the legal and juridical context but in all matters of the society. Such context is part of a scenario of constant misinterpretation of children’s best interests, as well as its necessity of juridical protection.

In front of that, the extreme importance of an effective legal system that protects the rights of the children is shown.

The 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, known as Brussels IIa Regulation, is one of the legal ways found by Private International Law to provide the protection of matters concerning the judicial aspects of the best interests of the children. One of its main objectives is to ensure equality for all children, through the regulation of decisions on parental responsibility and measures for the protection of the child.

Since its implementation, it has been applied in the EU’s legal system in measures of designation of a person or body having charge of the child’s property, through representation or assistance, and the administration or disposal of the child’s property. Cases, where the parents are in dispute regarding the administration of the child’s property, are one of the main cases of judgment.

In the meantime, the world has changed, and the necessity of children’s legal protection has improved. The creation of the Brussels IIa Recast (Council Regulation (EU) 2019/1111of 25 June 2019 on the jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction) represents the constant necessity of reformulation of the legal system in front of the increasing amount of people moving freely across Europe.

With more families moving across Europe, the more common it is to find families with different nationalities[1]. To guarantee that those people will have their rights ensured, the mere suppression of physical borders is not enough. The legal system has to find a way in which the rights of those “cross-border” families are ensured.

In front of that, one of the main changes of the Brussels IIa Recast is in the aspects related to the child’s hearing. The topic was already in the scope of Brussels IIa. However, its practical implementation was not satisfactory, since the current jurisprudence of the Court of Justice of the European Union, formed mainly from Povse (C - 211/10) and Aguirre Zarraga (C 491/10) leading cases, demonstrates that the child's hearing, as well as their opinion, are not essential for the final decision-making, especially in cases involving child´s wrongful removal or retention. This demonstrates that most of the decisions take into account, "mutual trust" principle between Member-States rather than the best interest of the child.

In this view, article 21 is of great importance: it covers matters concerning the right of the child to have “a genuine and effective opportunity to express his or her views". From now on, when the child complies with the maturity and age requirements the courts must take into account in their decisions the manifestation of the will of the children.

More than that, Brussels IIa Recast abolishes the exequatur for decisions concerning parental responsibilities, i.e the decisions regarding access rights and the return of the child. When related to matters of parental responsibility, the Member-State’s authorities have the duty to ensure that the child is given an effective chance to express himself or herself during the proceedings.

It is important to emphasize the need for psychological training and pedagogic background of the judges[2]. Since they are dealing with decisions that can change the day-to-day lives of entire families and the dynamics that involve the growth of the children, all the care possible is required. Otherwise, in private civil law decisions, this care is not as necessary: judges have the possibility to resolve issues in a neutral way, without necessarily having to consider all aspects that concern the individual’s life. Having to organise the logistics of broken homes,[3] it is extremely necessary that the children of those families are heard in order to respect his or her views in the decision-making.

In the post-modern world legal normativity must be concerned with the needs and wants of unique individuals, who have particular interests that must, to a certain extent, be taken into account in the decision making. When the issue involves children’s lives, which can be changed for better or worse, this need for care in legal decisions is even greater.     Article 21, much more than regulating the demonstration of the will and interest of children, allows them to be considered as human beings, whose interest cannot be left aside in the cross-border world.

 

[1] https://www.ejtn.eu/PageFiles/17914/TH-2019-02%20TEAM%20PORTUGAL%20I.pdf

[2] https://www.europarl.europa.eu/RegData/etudes/STUD/2016/571383/IPOL_STU(2016)571383_EN.pdf

[3] IBID

 

*Carla Lerin

Master’s Candidate in Law at Federal University of Santa Catarina (UFSC)

**Laís Dall Oglio Lorenzini

Law student at Federal University of Santa Catarina (UFSC)