The Hague Convention on the Civil Aspects of International Child Abduction and Brussels II bis Regulation – Mechanism of Overriding Ddecision, Article 11 of the Regulation

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.