BRUSSELS IIa regulation: Mediation between parents and listening to children in court cases affecting them makes all the difference
“I don’t really have the feeling that they took my opinion into account. I mean, I am younger than a certain age, but that doesn’t mean that I'm invisible right…”
Rebecca, 14 years old
In the EU, the Commission estimates that there are 16 million international families. When a family conflict escalates, one parent may decide to return to his/her home country with his/her child. If done without the consent of the other parent, this qualifies as a parental child abduction. The Brussels IIa Regulation has, for over a decade, been the most important judicial instrument used in cases of international child abduction, setting the rules for immediate return of the abducted children amongst EU Member States.
On January 18th, more than a year and half after the proposal of the Commission, the European Parliament voted on a set of amendments to this proposal to further emphasise the protection of the rights of the child.
We have summarized the two most relevant amendments and our accompanying recommendations.
1. Mediation to solve an international child abduction
Missing Children Europe coordinates a network of Cross-border Family Mediators. This network brings together 178 family mediators from 37 countries across the globe who have expertise and knowledge in dealing with cross-border family disputes and child abductions. These mediators work with the same mediation model and ensure that each mediator comes from the same country as each parent. The model ensures that abduction cases are resolved quickly to minimise harm to children.
In 2016, the mediators of the network dealt with on average only two and a half cross-border family mediation cases per mediator despite the large number of children reported to have been abducted by a parent. This demonstrates that further promotion of mediation is necessary.
- Therefore, Missing Children Europe strongly welcomes the proposal that judicial and administrative authorities should assist the conflicting parties/parents before and during the judicial proceedings in the selection of appropriate mediators and in support of mediation. Missing Children Europe further agrees with the European Parliament that this should be done with the assistance of existing networks of mediators and supported by structures for mediation in cross-border parental responsibility disputes.
Last year, almost two thirds (62%) of the cross-border family mediation cases resulted in a (partial or full) mediation agreement. This clearly demonstrates the added value of mediation on the lives of these families and children but also on the workload of European courts.
Therefore, Missing Children Europe believes the further promotion of mediation within the EU laws and processes are vital and urges the Council of the European Union to accept the proposed amendments on mediation.
2. Focus on the best interest of the child
In 2017 Missing Children Europe, in collaboration with research partners, published a research study on the wellbeing of children in cases of international child abduction. The study revealed that most children don’t understand what is happening when an abduction or legal battle happens. They complained about a lack of clear communication and a limited understanding of the situation. Even children who were heard in court cases related to child abduction complained about this lack of understanding in terms of what is expected from them, if their opinions will influence the final decision, etc. …. Children who weren’t heard felt that they were not being taken seriously, or even felt invisible. Additionally, in most cases children were barely or not at all informed in cases where they were made to return to the left behind parent. Often, the abrupt return is associated with negative feelings of ambivalence, anger and intrusiveness.
- Missing Children Europe welcomes the European Parliament’s emphasis on the importance of taking the child’s view into account and supports the obligation for national governments to conduct a thorough examination of the best interest of the child.
Missing Children Europe stresses the importance of hearing children in court cases affecting them, which merits detailed provisions. Additional measures must be put in place to assure the wellbeing of children is better guaranteed.
Missing Children Europe requests the Council of the European Union to strongly consider the following recommendations on the issue of hearing children within the scope of the Brussels IIa Regulation:
1) Children should receive adequate support to prepare them for a hearing. It should be communicated to the child, in appropriate language, that while the child’s view is important, children do not bear the responsibility of the decisions made in the case. Transparency about the hearing procedure, the child’s role, the weight that can be given to the child’s views as well as the role of the person hearing the child, can avoid disappointment and unrealistic expectations which may be harmful for the child’s wellbeing.
2) Legislation should not contain age limits for hearing the child. All children capable of forming and expressing their views, should be given an opportunity to be heard. Such capability should be interpreted widely.
3) When assessing maturity, judges and other professionals hearing the child should take into account personality differences between children. Children who are shy, lack self-confidence or who are not very assertive should get equal chances to express their views in their own way, and have their views considered in an appropriate fashion.