Brussels II ter Regulation (2019/1111)

The Brussels II ter Regulation (Regulation 2019/1111) is the cornerstone of EU judicial cooperation in matrimonial matters and matters of parental responsibility. It recast and replaced the earlier Brussels II bis Regulation (2201/2003), entering into force on 1 August 2022. The Regulation is directly applicable in all Member States except Denmark, which participates via a parallel agreement.

Scope and Objectives

The Regulation applies to civil proceedings relating to divorce, legal separation, and marriage annulment (matrimonial matters), as well as to the attribution, exercise, delegation, restriction, and termination of parental responsibility. Its objectives include ensuring the free movement of judgments within the EU, enhancing the protection of children in cross-border disputes, and streamlining the return of abducted children.

Jurisdiction in Matrimonial Matters

Articles 3 through 7 establish uniform jurisdictional grounds for divorce, legal separation, and annulment. Jurisdiction is based primarily on habitual residence of the spouses, last habitual residence if one still resides there, nationality, or domicile under Article 3(1). Unlike the parent Regulation, Brussels II ter introduces limited party autonomy: Article 7 allows spouses to choose a competent court by mutual agreement, provided a substantive connection exists. This innovation aims to reduce forum shopping while respecting party expectations.

Parental Responsibility Jurisdiction

Article 10 vests jurisdiction in the courts of the Member State of the child’s habitual residence at the time the matter is brought before the court. The previous rule in Brussels II bis that jurisdiction “survives” a lawful change of habitual residence has been refined. Article 12 continues to allow prorogation of jurisdiction if at least one holder of parental responsibility agrees and the child has a substantial connection to the forum. The child’s right to be heard is expressly recognised in Article 20, reflecting Article 24 of the EU Charter of Fundamental Rights.

Child Abduction

The most significant reforms concern return proceedings under The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. Brussels II ter strengthens the voice of the child: Article 26 mandates that the child be given a genuine and effective opportunity to be heard during return proceedings, in accordance with their age and maturity. The Regulation also tightens timeframes — Article 24(2) requires the court to issue a return order within six weeks of the application, aligning with the 1980 Convention’s aspirational standard.

Article 28 introduces a significant shift: a court cannot refuse return solely on the ground that adequate arrangements to protect the child after return have not been established in the requesting State. Instead, the court must issue a return order and rely on the requesting State’s authorities to make protective arrangements. This reverses the approach taken by some courts under Brussels II bis.

Enforcement and Safeguards

Brussels II ter abolishes exequatur entirely for decisions on access rights and certain judgments requiring the return of the child. Articles 34 through 38 provide for the direct enforcement of certified judgments without intermediate proceedings. The Regulation introduces a new European Certificate on Parental Responsibility (Article 71), which facilitates the recognition and enforcement of judgments across Member States.

The receiving Member State cannot review the merits of the judgment, and the grounds for refusal of enforcement are narrowly circumscribed: irreconcilable judgments, public policy (only where it conflicts with the child’s best interests), and procedural deficiencies in service of documents.

Hearing the Child

Article 20 mandates that Member States ensure courts provide the child with a genuine and effective opportunity to express their views. This applies both to proceedings concerning parental responsibility and to return proceedings under the 1980 Convention. The Regulation does not prescribe the method — whether direct hearing by the judge, interview by a social worker, or representation — leaving Member States procedural autonomy so long as the opportunity is meaningful.

Relocation

Although the Regulation does not contain specific provisions on relocation disputes, its jurisdictional framework governs resolution. Where a parent wishes to move with the child to another Member State, the court of the child’s habitual residence retains jurisdiction over the requisite variation of custody arrangements. The case law of the Court of Justice, including C. v M. (Case C-376/14 PPU), establishes that a proposed relocation may constitute a matter of parental responsibility requiring judicial determination.

Relationship with Other Instruments

Brussels II ter operates alongside the 1980 Hague Abduction Convention and the 1996 Hague Convention on the Protection of Children. The Regulation takes precedence between Member States in matters falling within its scope, but does not affect the operation of the 1996 Convention in relations with non-Member States.