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

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. 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 Regulation (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, the 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 analysed 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 System 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 approach. In the operation of the Brussels II ter Regulation the key question will be – what exactly is meant by a 'genuine and effective' opportunity given to the child to express her or his views? Pro futuro, the EU activities on the development of minimum common guidelines for the implementation of the child's procedural rights, in particular the right to express views in matters of parental responsibility should be considered and planned. In international child abduction cases, maybe is time to think about a special regulation in the area of judicial cooperation in the taking of evidence which will take into account the specific characteristics of cooperation and hearing the child in these matters, as well as the new technology.

right to express an opinion, child, parental responsibility, Brussels II Regulation, recast, procedure

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