Brecht's European Civil Law (ECL) - Comment Brussels II Regulation

The Brussels II Regulation 2003

CHAPTER IV COOPERATION BETWEEN CENTRAL AUTHORITIES IN MATTERS OF PARENTAL RESPONSIBILITY

Article 53 of the Brussels II Regulation

Designation [Article 53 BR II]

Article 53 Designation
Each Member State shall designate one or more central authorities to assist with the application of this Regulation and shall specify the geographical or functional jurisdiction of each. Where a Member State has designated more than one central authority, communications shall normally be sent direct to the relevant central authority with jurisdiction. Where a communication is sent to a central authority without jurisdiction, the latter shall be responsible for forwarding it to the central authority with jurisdiction and informing the sender accordingly.

Each Member State shall designate one central authority. These may be existing authorities entrusted with the application of international conventions in this area.

Article 54 of the Brussels II Regulation

General functions [Article 54 BR II]

Article 54 General functions
The central authorities shall communicate information on national laws and procedures and take measures to improve the application of this Regulation and strengthening their cooperation. For this purpose the European Judicial Network in civil and commercial matters created by Decision No 2001/470/EC shall be used.

In the first place, as members of the European Judicial Network, the Central Authorities work on an information system and discuss issues of common interest and their methods of cooperation. In this context they may also develop best practices on family mediation or facilitate the networking of organizations working in this area.

Article 55 of the Brussels II Regulation

Cooperation on cases specific to parental responsibility [Article 55 BR II]

Article 55 Cooperation on cases specific to parental responsibility
The central authorities shall, upon request from a central authority of another Member State or from a holder of parental responsibility, cooperate on specific cases to achieve the purposes of this Regulation. To this end, they shall, acting directly or through public authorities or other bodies, take all appropriate steps in accordance with the law of that Member State in matters of personal data protection to:
(a) collect and exchange information:
(i) on the situation of the child;
(ii) on any procedures under way; or
(iii) on decisions taken concerning the child;
(b) provide information and assistance to holders of parental responsibility seeking the recognition and enforcement of decisions on their territory, in particular concerning rights of access and the return of the child;
(c) facilitate communications between courts, in particular for the application of Article 11(6) and (7) and Article 15;
(d) provide such information and assistance as is needed by courts to apply Article 56; and
(e) facilitate agreement between holders of parental responsibility through mediation or other means, and facilitate cross-border cooperation to this end.

The specific duties of the Central Authorities are listed in Article 55 BR II. They include facilitating court-to-court communications, which will be necessary in particular where a case is transferred from one court to another (See Chapters III and VII). In these cases, the Central Authorities will serve as a link between the national courts and the central authorities of other Member States.

Most importantly, Central Authorities assume an active role for the purpose of ensuring the effective exercise of rights of parental responsibility in specific cases, within the limits placed on their action by national law. Hence, they share information, give advice, promote mediation, and facilitate court-to-court communications. They play a particularly important role in cases of child abduction, where they have an obligation to locate and return the child, including where necessary to institute proceedings for this purpose.

Article 56 of the Brussels II Regulation

Placement of a child in another Member State [Article 56 BR II]

Article 56 Placement of a child in another Member State
- 1. Where a court having jurisdiction under Articles 8 to 15 contemplates the placement of a child in institutional care or with a foster family and where such placement is to take place in another Member State, it shall first consult the central authority or other authority having jurisdiction in the latter State where public authority intervention in that Member State is required for domestic cases of child placement.
- 2. The judgment on placement referred to in paragraph 1 may be made in the requesting State only if the competent authority of the requested State has consented to the placement.
- 3. The procedures for consultation or consent referred to in paragraphs 1 and 2 shall be governed by the national law of the requested State.
- 4. Where the authority having jurisdiction under Articles 8 to 15 decides to place the child in a foster family, and where such placement is to take place in another Member State and where no public authority intervention is required in the latter Member State for domestic cases of child placement, it shall so inform the central authority or other authority having jurisdiction in the latter State.

The seised court of a Member State, having jurisdiction under Section 2 of Chapter II over matters of parental responsibility, may think it's in the best interest of the child to place it in institutional care or with a foster family. Usually this is done in an institution or with a foster family domiciled in that same State. However, sometimes it's necessary to place the child in an institution or with a foster family in another Member State, for instance because the child is present there or has more connections with that State. In such event the court which has the intention to place the child in another Meber State, must consult firstly the Central Authorities of that other Member State. Only when the requested authorities of that other Member State, where the child is to be placed, have consented therein, the court may give a judgment for the placement of the child in institutional care or with a foster family in that other Member State.

Article 57 of the Brussels II Regulation

Working method [Article 57 BR II]

Article 57 Working method
- 1. Any holder of parental responsibility may submit, to the central authority of the Member State of his or her habitual residence or to the central authority of the Member State where the child is habitually resident or present, a request for assistance as mentioned in Article 55. In general, the request shall include all available information of relevance to its enforcement. Where the request for assistance concerns the recognition or enforcement of a judgment on parental responsibility that falls within the scope of this Regulation, the holder of parental responsibility shall attach the relevant certificates provided for in Articles 39, 41(1) or 42(1).
- 2. Member States shall communicate to the Commission the official language or languages of the Community institutions other than their own in which communications to the central authorities can be accepted.
- 3. The assistance provided by the central authorities pursuant to Article 55 shall be free of charge.
- 4. Each central authority shall bear its own costs.

The ability to work in other languages and the provision of services free of charge are very important considerations for facilitating access to the central authorities.

Article 58 of the Brussels II Regulation

Meetings [Article 58 BR II]

Article 58 Meetings
- 1. In order to facilitate the application of this Regulation, central authorities shall meet regularly.
- 2. These meetings shall be convened in compliance with Decision No 2001/470/EC establishing a European Judicial Network in civil and commercial matters.

It is also foreseen to use the network to hold meetings of the Central Authorities.