Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast)

(39) Proceedings in matters of parental responsibility under this Regulation as well as return proceedings under the 1980 Hague Convention should, as a basic principle, provide the child who is subject to those proceedings and who is capable of forming his or her own views, in accordance with the case-law of the Court of Justice, with a genuine and effective opportunity to express his or her views and when assessing the best interests of the child, due weight should be given to those views. The opportunity of the child to express his or her views freely in accordance with Article 24(1) of the Charter and in the light of Article 12 of the UN Convention on the Rights of the Child plays an important role in the application of this Regulation. The Regulation should, however, leave the question of who will hear the child and how the child is heard to be determined by national law and procedure of the Member States. Consequently, it should not be the purpose of this Regulation to set out whether the child should be heard by the judge in person or by a specially trained expert reporting to the court afterwards, or whether the child should be heard in the courtroom or in another place or through other means. In addition, while remaining a right of the child, hearing the child cannot constitute an absolute obligation, but must be assessed taking into account the best interests of the child, for example, in cases involving agreements between the parties. Whilst, according to the case-law of the Court of Justice, it is not a requirement of Article 24 of the Charter and of Regulation (EC) No 2201/2003 that the court of the Member State of origin obtain the views of the child in every case by means of a hearing, and that that court thus retains a degree of discretion, the case-law also provides that, where that court decides to provide the opportunity for the child to be heard, the court is required to take all measures which are appropriate to the arrangement of such a hearing, having regard to the best interests of the child and the circumstances of each individual case, in order to ensure the effectiveness of those provisions, and to offer to the child a genuine and effective opportunity to express his or her views. The court of the Member State of origin should, in so far as possible and always taking into consideration the best interests of the child, use all means available to it under national law as well as the specific instruments of international judicial cooperation, including, when appropriate, those provided for by Council Regulation (EC) No 1206/2001.

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(71) Although the obligation to provide the child with the opportunity to express his or her views under this Regulation should not apply to authentic instruments and agreements, the right of the child to express his or her views should continue to apply pursuant to Article 24 of the Charter and in light of Article 12 of the UN Convention on the Rights of the Child as implemented by national law and procedure. The fact that the child was not given the opportunity to express his or her views should not automatically be a ground of refusal of recognition and enforcement of authentic instruments and agreements in matters of parental responsibility.