INTRODUCTION

It is unanimously acknowledged that speedy action by courts is crucial when it comes to protecting the legal rights of minors in disputes concerning them, particularly where young children are involved. Thus, we may certainly say that speed is an essential element of the adjudication process for pursuing the best interests of children, as a procedural rule. On the other hand, the need to analyse all the elements necessary in the particular case to determine the best interests of the child in the substantive sense inevitably affects the duration of proceedings, which can oft en become quite complex. Moreover, the conflict between speed and thoroughness is heightened in matters of parental responsibility, and is balanced within domestic legal systems by procedural rules that provide for interim measures of protection. The provisions on provisional and protective measures found in Regulation (EC) No. 2201/2003 are intended to bring about the same result in cross-border controversies. This chapter will investigate the ways in which this Regulation implements the principle of the superior interests of the child, as well as how this principle, as incorporated in EU law, may be perceived through it. This analysis is particularly timely today, in light of the recent recast of the Regulation, not least of all in order to verify if, and to what degree, the modifications that had been proposed by the Commission, and those eventually adopted, effectively move toward strengthening the protection of children.

JURISDICTION ON THE SUBSTANCE AND JURISDICTION TO ISSUE INTERIM RELIEF

As well known, Article 20 of the Brussels IIa Regulation contains a rule that specifically addresses provisional and protective measures and allows them to be established even by the judicial authorities of Member States different from the one with jurisdiction over the substance of the matter. Nevertheless, the Regulation first and foremost confers jurisdiction to adopt provisional measures on the latter courts. As is the case with other European Union Regulations that regulate jurisdiction, this is not stated explicitly in any particular rule, and yet it has never been called into question. This is also supported by the precedent established by the 1968 Brussels Convention: the CJEU, albeit without any textual support, has not hesitated to declare that the same court identified as having the jurisdiction on the substance of the matter, ‘also has jurisdiction to order any provisional or protective measures which may prove necessary’.