The Brussels IIa recast: Being heard is not enough
In 2018, the 116 000 European hotline for missing children answered 1246 calls related to parental child abduction. Within the European Union, the Brussels IIa Regulation is the most important judicial instrument in these international child abduction cases. In December 2018, the Council of the European Union approved the Brussels IIa recast, which aims to improve the current legal EU rules that protect children in the context of cross-border parental responsibility disputes related to custody, access rights and child abduction.
Missing Children Europe welcomes update to the 2003 Regulation because it refines and officialises practices in the field of international child abductions in the past sixteen years. We are very pleased that the Brussels IIa recast gives more visibility to mediation and alternative dispute resolution. We regret however that while remaining a right of the child, hearing the child is under the revised Regulation still no absolute obligation.
The right of the child to express their own views
The recast aims to set clear rules on the opportunity of the child to express their views. The basic principle states that all children who are capable of forming their own views should be given a genuine and effective opportunity to express them. Additionally, due weight should be given to those views when assessing the child’s best interest.
Under the revised Regulation however, the right is assessed taking into account the best interests of the child rather than as an absolute obligation. Furthermore, the Regulation leaves open the question of who will hear the children and how they will be heard.
Missing Children Europe's research shows that children find it important to have the opportunity to be heard in court. However, being heard is not enough. Children who had the opportunity of being heard noted that the proceedings, outcomes and reasons for court decisions were not adequately communicated and explained to them.
Therefore, Missing Children Europe stresses that professionals should employ the necessary attention and genuine interest to ensure that children feel respected and taken seriously in all conversations. The person talking to the child should be specifically trained to hear children and should allocate enough time for the conversation.
To avoid unrealistic expectations and disappointment, children should additionally receive adequate and transparent information about the hearing procedure, their role, the weight and confidentiality that can be given to their views as well as the role of the person hearing them.
Lastly, the judgment should be accessible to the child. If it is written in legal language, a professional should explain its content to the child.
The new article 23a quotes that the court shall, as early as possible and at any stage of the proceedings, invite the parties to consider whether they are willing to engage in mediation.
Missing Children Europe strongly believes in the added value of mediation to solve cross-border family disputes. An agreement through mediation is not only faster and cheaper than a court decision but is a more sustainable solution since both parents agreed upon it. Research has further shown that if parents perceive a solution as ‘fair’, the wellbeing of their children is enhanced.
However, mediation in these high conflict and international cases requires specific expertise and experience. Therefore, it is important that mediation is further promoted within the EU laws and processes.
Additionally, Missing Children Europe hopes that this will be done with the assistance of existing networks of mediators and supported by structures of mediation in cross-border parental responsibility disputes. The network of Cross-Border Family Mediators brings together approximately 200 mediators from all EU member states and other countries across the world. They have specific expertise and knowledge in dealing with cross-border family disputes and child abductions. They all work with the same mediation model, thus ensuring that abduction cases are resolved quickly to minimize harm to children and to fit into the strict timeframes of the Hague Child Abduction Convention.
Missing Children Europe will continue to collaborate with all stakeholders on European level to further promote the use of mediation and implement the recast of the Brussels IIa Regulation. In this way, we wish to contribute to the quest for smoother solutions for international child abductions.
 Regulation (EC) N° 2201/2003, Jurisdiction, recognition and enforcement of matrimonial and parental judgements.