Britain’s exit from Europe, has caused a lot of uncertainty about the service of judicial and extrajudicial documents in civil or commercial matters in the European Union. It is particularly of interest in matters regarding the custody of a minor child, as there are many cases where a child was born of a Romanian parent and non-Romanian parent.
The recognition and enforceability of a final family order in the English proceedings regarding the right of custody and access in Romania for the non-Romanian parent will depends on the terms under which the United Kingdom will exits the European Union.
In this context there are two possible situations that can occur:
1. The United Kingdom continues applying the Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children remaining with one of the contracting parties.
In this situation, since both Romania and United Kingdom remain Contracting States of the Hague Convention, art 23 of the Convention will be applicable in respect of any court decision regarding parental responsibility and visitations rights obtained in one of the two states, more exactly: “The measures taken by the authorities of a Contracting State shall be recognized by operation of law in all other Contracting States”. Therefore, a Court Order obtained in England in respect of rights of custody and access will be recognized and enforceable in Romania based on the legal disposition mentioned above.
2. The United Kingdom no longer applies the Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children.
In this situation, the United Kingdom will no longer be considered being a Contracting party and therefore any disposition regarding recognition and enforceability mentioned by the Convention will no longer be applicable in case of a court order issued by English courts.
In this scenario, an order regarding rights of custody and access that will be obtained in England will need to be recognised in Romania for it to be enforced.
With regard to the procedure and timescales for obtaining recognition and enforcement of court Order obtained in a third party state in Romania, it involves an application to be filed by the party/parties who have an interest in obtaining the recognition of a foreign decision. For such an application to be lodged and a decision to be obtained, certain conditions must be met such as:
• The foreign decision must be final.
• The foreign court that issued the order must have had, jurisdiction to rule upon the case, according to the legislation of the issuing state.
• Reciprocity between Romania and the state where the order was issued in respect of recognition of the effects of the court orders.
If during the original court proceedings, the party that lost the case was not present at the hearing, the decision must show that this party received notice of the proceedings in time and had the possibility to prepare a defence. It must also be shown that they were properly summoned in due time for the final hearing as well as the fact that this party had the possibility to challenge the decision.
The Romanian court instructed to decide over the recognition of a foreign order cannot review the grounds of the case already solved by the foreign court and is only required to verify if the specific conditions needed for the recognition of the order to be granted are met.
This procedure can take between 6 to 12 months. All documentation provided to the court that was not initially drafted in Romanian must be translated in Romanian by an authorised translator. Once the court decision acknowledging the recognition of a foreign court order is obtained, this decision can be enforced in Romania, this Order having the same effects as a Romanian court decision.
Enforcement proceedings can be started in cases where the party against whom the order was granted does not voluntarily comply with the original Order.
The enforcement procedure is conducted by a bailiff and it is commenced by issuing instructions to him. All necessary measures needed in order to enforce the Order will be conducted by the Bailiff.
An initial part of the Bailiff’s fee will be advanced by the party seeking enforcement at the beginning of the procedure; the rest of the fee is paid by the other party at the end of the procedure.
The most important difference will be the fact that the recognition must be obtained before enforcement proceedings can be commenced. This may mean that the order cannot be enforced quickly enough, and this will have a bearing on cases where there is an order to return a child to another jurisdiction. In practise Romanian courts are unwilling to send a child back to another country if they are “settled”. The obtaining of quick professional advice will in these circumstances be a pre-requisite to obtain a satisfactory outcome to any enforcement proceedings.
