The mechanism of overriding decision
stipulated in Article
11(6–8) of Brussels II bis Regulation was argued to be an upgrade of the return mechanism
laid down in the 1980 Hague Convention on Civil Aspects of International Child
Abduction aiming at strengthening the Convention. The mechanism in Article
11(6–8) enables "second chance” decisions
in cases of issuing the non-return order by guaranteeing a court of child’s
habitual residence immediately before the removal to decide again on the child’s return, using the "extension proce- dure”. By establishing such mechanism, the EU not only raises the
question of mutual trust principle, but
also remodels the Convention’s basic
aim, i.e. to pursue the best interest of the child. A positive impact of the
mechanism can be attained (only) in the case where the provisional measure is
acting as the "overriding” decision,
however not without affecting the mutual trust princi- ple. The Recast Brussels
II bis Regulation prevents
the use of provisional mea- sures as "overriding” decisions and thus exposes the main goal of the mechani-
sm, which is to guarantee the final decision to the court of habitual
residence, even though it may, by doing so, hinder
the efforts in pursuing the best interest of the child and efforts to build
mutual trust among the national courts.
Keywords: The Hague Convention on the Civil
Aspects of International Child Abduction, Mechanism of overriding decision, Article 11 of the Brussels
II bis Regulation, provisional measure, enforcement, mutual trust.