Personal Law

Movement of children within the EU - Brexit

April 7, 2020

The UK has left the EU and is now going through a transitionary period. This is due to last until December 2020 and may be extended, however this still remains an unknown.

Brussels IIa Regulation deals with the movement of children within the EU. This Regulation will no longer apply after the Brexit transition period. What does this mean? The UK loses some protective provisions enjoyed whilst part of the EU. We consider the most important provisions that we lose below.

Six weeks time frame
1. Brussels IIa requires that child abduction cases in the EU be dealt with within six weeks, save for in exceptional circumstances. The UK now must rely upon the 1996 Hague Convention, which does not have a swift time frame in place. Most Courts may take the view that it is within the best interests of the child to deal with the matter swiftly however this is not set out in legislation anymore. There is concern that child abduction cases will not be dealt with in the current 6 week timescale, which will likely cause undue stress and anguish on parents and guardians.

Parental Responsibility

2. Article 9 of Brussels IIa states that within the first three months following a child’s move to another Member State, the child’s habitual residence will remain in the ‘left behind” state. For example a child moves to Spain from England, the child’s home will still be considered England. However, this is no longer going to be the case. This can cause severe issues when dealing with a child’s relocation to the EU from the UK.

Second attempt at return proceedings
3. In losing Brussels IIa, the UK will lose the benefit of Articles 11(6) to (8) for cases of child abduction. These articles an applicant a second attempt at return proceedings. If your case fails after the transition period, then it is not going to receive the benefit of a second attempt.

Protective measures
4. Under the 1980 Hague Convention, an EU Member State can refuse to return a child to a another Member State (if there is a Court order) if the Member state believes that there is a grave risk that the return of that child would expose him or her to:

“physical or psychological harm or otherwise place the child in an intolerable situation”.

Brussels II allowed for this to be circumvented if (and only if) there were adequate protective measures in place to rectify that risk.  After the transition period even if there are protections in place, the other Member State (where the child has been abducted to) can refuse to return the child.

Legal aid
5. Under Brussels IIa legal aid is available for recognition and enforcement orders. With the removal of Brussels IIa, Legal aid will no longer be available.

Given the above, the UK can take steps to make similar laws to that of Brussels IIa. However, given the current climate, this is likely to be on the back burner.Movement of children within the EU - Brexit