15 September 2011
In the EU, most matters of international family law are regulated by the European Commission, drawing on the Hague Conference on International Private Law.
Recently, legislative efforts in Brussels and The Hague have resulted in three significant changes, which will reshape some core aspects of international family law.
This legislative proposal was introduced on 12 April 2010 by the Government and was adopted on 18 January 2011 by the Dutch Parliament, waiting at present approval by the Dutch Senate.
Bringing a child from abroad into The Netherlands by a parent who, by this act, is in breach of the custodial ruling concerning that child, qualifies as child abduction. In such cases, the Central Authority (CA) assists the other parent, in order to facilitate the return of the child; if necessary in court, as well. The new legislative proposal aims to abolish the competence of the CA to legally represent the other parent, who will therefore need to act assisted by an attorney. Once this legislative proposal takes effect, the CA will lose its monopoly position.
The Hague Child Protection Convention 1996 has taken effect on 1 May 2011 in The Netherlands, replacing the Hague Child Protection Convention 1961. These conventions compete with the Brussels II bis Regulation. The Convention and the Regulation both start from the premise that the country of the child’s habitual residence has jurisdiction to take measures to protect the child – such as custody, visitation, habitual residence, co-parenting, etc. Rather than taking into account the nationality of the child and of the parents, the judge will therefore apply the law of the country of the child’s habitual residence.
The Child Maintenance Regulation has taken effect on 18 June 2011, founding an EU wide system that allows the recognition and enforcement of child maintenance provisions in all EU member states. Thus, in most cases, a ruling concerning child maintenance obligations can be enforced without much further ado in another EU member state. The Regulation also spells out the competent judge and the law applicable, in cases of cross-border child maintenance obligation disputes; the law applicable deriving from the Hague Protocol that is part of the Hague Child Support Convention 2007. The Regulation replaces, in the EU context, all national and international legislations that were previously applicable; however, the recognition and enforcement of child maintenance obligations can still be a complex and tricky procedure.
Please contact me for further advice if any of the above raises questions with you.
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