The Voice of the Child: Are the Procedural Rights of the Child Better Protected in the New Brussels II Regulation?

• Author: Sla?ana Aras Kramar
• Position: University of Zagreb, Faculty of Law, Zagreb, CROATIA
• Pages: 87-98

Center for Open Access in Science  https://www.centerprode.com/ojls. html

Open Journal for Legal Studies, 2020, 3(2), 87-98.

ISSN (Online) 2620-0619  https://doi.org/10.32591/coas.ojls.0302.01087a

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© Authors. Terms and conditions of Creative Commons Attribution 4.0 International (CC BY 4.0) apply.

Correspondence: Slađana Aras Kramar, Ph.D., Associate Professor, University of Zagreb, Faculty of Law,

Department for Civil Procedure, CROATIA. E-mail: saras@pravo.hr.

The Voice of the Child: Are the Procedural Rights of the

Child Better Protected in the New Brussels II Regulation?

Slađana Aras Kramar

University of Zagreb, Faculty of Law, Zagreb, CROATIA

Received: 9 April 2020  Accepted: 9 July 2020  Published Online: 25 July 2020

Abstract

The procedural rights of children in civil court proceedings, and in particular the right of children

to be heard in such proceedings, play a significant and growing rol e in international, European

and national context. At the EU level, the growing relevance of the procedural rights of the child

has shaped the Brussels II system, originally adopted in the Council Regulat ion (EC) No

1347/2000 of 29 May 2000, now in the Council Regulation (EC) No 2201/2003 of 27 November

2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial

matters and the matters of parental responsibility. Recently, th e Brussels II system has been the

subject of a second recast aimed at better protection of the best interest of the child, including

the right to be heard in these matters. The new Regulation II ter will start to apply from 1 August

2022. In this paper, the importance and role of the right of the child to be heard in the Brussels

II bis Regulation will be analyzed and discussed, taking into account the jurisprudence of the

Court of Justice of the EU. Following that , the impact of the right of the child to be heard on the

second recast of the Brussels II S ystem will be evaluated. Last but not least, the paper will try to

answer the question of what we have achieved with the new Brussels II ter Regulation in

proceedings on parental responsibility from a child rights-based ap proach.

Keywords: right to express an opinion, child, parental responsibility, Brussels II Regulation,

recast, procedure.

1. Introduction

The procedural rights of children in civil court proceedings, and in particular the right

of children to be heard in such proceedings, play a significant and growing role in international,

European and national context. The right of the child to be heard is one of the key principles of

the 1989 Convention of the Rights of the Child (hereinafter: CRC) (Art. 12 of the CRC; Kilkelly,

2011: 180-182; Committee on the Rights of the Child, 2009: 5, 17-21; Fortin, 2003: 37-38). Article

12 of the CRC addresses the participation of children in proceedings in a way that guaranties to

the child who is capable of forming her or his own views, the right to express those views freely in

all matters affecting the child, and the right to have her/his views accorded due weight in

accordance with the age and maturity of the child. For this purpose, the Paragraph 2 states, in

particular, that the child shall be provided the opportunity to be heard in any judicial and

administrative proceedings affecting the child, either directly, or through a representative or an

appropriate body, in a manner consistent with the procedural rules of national law.