Parental responsibility in a cross-border context

The enforceability of access rights

During the drafting of the Regulation, it was regarded as highly important that holders of rights of access to the child should be able to enforce their rights quickly and easily, for the benefit of the child and for the holder of access rights.

Under the Regulation, ‘rights of access’ includes the right to take the child to a country other than their habitual residence, and usually refers to the situation where a parent has contact with the child but is not the primary carer.
As the holder of access rights is not the primary carer, it is important that they can ensure their rights are protected in relation to the child so that the child does not lose contact with one parent, especially if they live in different countries. The Regulation aims to ensure that these access rights are effectively protected in cross-border situations so that contact is not lost.

The enforcement of a judgment regarding rights of access is made very straightforward by Article 41.

Article 41(1): The rights of access... granted in an enforceable judgment given in a Member State shall be recognised and enforceable in another member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin.

There are no defences to the recognition of a judgment that has been certified.
Enforcement requires no declaration of enforceability.

This is a simpler procedure than recognition and enforcement of other judgments under Brussels IIbis. It only applies to judgments defining rights of access. The holder of rights of access can approach a foreign court for the expedited procedure if certain requirements are made out:

Requirements before a certificate may be issued under Article 41(2):

Where the judgment was given in default of appearance, the documents instituting proceedings were issued in sufficient time to enable the person in default to prepare a defence
All the parties concerned were given an opportunity to be heard
The child was given an opportunity to be heard if they were of an appropriate age and maturity

These requirements are checked by the court of origin, the court issuing the judgment on access rights. Even if the court asked to recognise and enforce the judgment knows that there is a problem with the procedure leading up to the judgment, for example that a child of appropriate age and maturity has not been heard in the proceedings, it must recognise and enforce it if the certificate is issued.