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The protection of minors in international civil cases. Taking civil evidence by international letters rogatory in the EU.

Mădălina Merlusca

The protection of minors has always been a sensitive subject, raised by the legislative forums, the doctrine and the jurisprudence. There are numerous national and international acts which aim at protecting minors, but there are cases when they are not sufficient. Minors protection is not always concrete, effective in terms of applicable rules.

The principle of the superior interest of the children is tied to the necessity to protect children, and it implies two essential rules. First, all the decisions regarding children have to be taken in the exclusive interest of each child to ensure their immediate and future well being. Second, all the decisions and acts must imperatively guarantee child rights.[1]

The leading international normative provisions addressing the minors’ protection issue are the following: The New York Convention of 1989[2], The 1970 Hague Convention; The European Union legislation (the European Convention on the Rights of Minors in Strasbourg, EU Regulation no. 106/2001, the EU Regulation no. 2201/2003, Regulation no. 1393/2007, at art. 65 of the Treaty of Amsterdam, Regulation no. EU 4/2009, Regulation no. 1259/2010).

In particular, in the context of the intense mobility of European citizens within the community space, numerous family disputes have arisen, involving the establishment by a court of how minors with parents residing in different EU states maintain family relationships with them.

A European judge called to determine whether the parent of a child resident in State A has adequate conditions in the territory of State B to establish the child’s home or to dispose of the place where the minor maintains relations with their parents for a period of time, must acquire evidence through the letters rogatory.

Thus, based on the European Judicial Atlas platform, the magistrate identifies the competent court in the equivalent state. Additionally, it is necessary to fill in standardized online forms[3] within the same platform.

The concrete problem consists in the fact that these forms are transmitted through traditional mail with acknowledgment of receipt and the response of the requested authorities comes in the same way to the case of merits from another state. In practice, this way of communicating the evidence leads to 80% of the cases having communication dysfunctions between the courts. For example, in Romania, the time for taking such evidence is eight months. In the case of a minor aged between 0 and 5, such a term inevitably leads to the breaking of family relationships and the non-observance of the minor’s right to family relations. In the case of adolescents aged between 12 and 17, this phenomenon of delaying the judicial settlement of family relationships leads to constant juvenile delinquency, even to the creation of psychological problems, deviations, for minors involved in such causes.

Starting from the above-described reality, the Romanian lawyer Geta Lupu proposed to the European Parliament in April 2019 that taking evidence through letters rogatory should be compulsorily made by electronic communication between competent magistrates. Moreover, she considers that there should be at least terms of recommendation, if not mandatory, in which the magistrate in the third state collaborates with the co-owner of the case, is bound to make the necessary arrangements for an effective response within a reasonable time. She proposed the designation of magistrates specialized in juvenile courts in each community state. These magistrates should take over, based on a standard algorithm, eventually integrated into the same European Atlas of Justice, the cases transmitted by colleagues in the third state.

Another suggestion consisted in involving the lawyer in the taking of evidence. Statements, certifications of documents proving the locative, work situation can be communicated through the lawyer—the eventual establishment of an entity – the European lawyer of the child. 

The blockage of the situation caused by this procedure in acquiring evidence in civil matters from the EU Member States, particularly Italy, Spain, UK, lately leads to decisions taken by the judges (e.g., to establish the residence of a minor abroad) without even taking the evidence.

The competent European institutions must unblock the situation of communication as soon as possible, acquiring evidence in civil matters in cases involving minors. When it comes to the safety of children, no check is useless.

[1] Rachel Taylor, Putting children first? Children’s interests as a primary consideration in public law, Child and Family Law Quarterly, Vol 28, No 1, 2016, available at https://www.familylaw.co.uk/docs/pdf-files/2016_01_CFLQ_45.pdf, visited 24 September 2020. 

[2] Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990, by article 49. To see https://www.ohchr.org/en/professionalinterest/pages/crc.aspx (visited 5 September 2020). 

[3] Annexed forms of EC Regulation 1206/2001 on the filing of evidence requesting the equivalent court in the requested state to conduct the investigation (namely acquiring proof) with the necessary elements for the settlement of each case.

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