Select Committee on European Scrutiny Ninth Report


MUTUAL RECOGNITION OF DECISIONS ON PARENTAL RESPONSIBILITY


(22652)

COM(01) 505

Draft Council Regulation on jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility.

          
Legal base: Article 61(c) EC; consultation; unanimity
Deposited in Parliament: 27 September 2001
Department: Lord Chancellor's Department; Scottish Executive Justice Department
Basis of consideration: EM of 31 October 2001
Previous Committee Report: None
To be discussed in Council: No date set
Committee's assessment: Legally and politically important
Committee's decision: Not cleared; further information requested

Background

  4.1  The principle of mutual recognition of judicial decisions was endorsed by the Tampere European Council in October 1999. One of the matters identified as a priority for such judicial cooperation was that of decisions relating to visiting rights to children. As the Commission explains in its explanatory memorandum on this proposal, cooperation in relation to visiting rights "is a response to a real social need. As people increasingly move from one Member State to another, and families break up and are recomposed, children need a secure legal environment for maintaining relations with persons who have parental responsibilities over them and who may now live in different Member States".

  4.2  In the area of family law, Council Regulation (EC) No 1734/2000 sets out rules on jurisdiction and recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses.[11] The scope of that Regulation is limited to judgments on the parental responsibilities for the children of both spouses rendered on the occasion of the matrimonial proceedings. The Regulation follows the pattern of the 1968 Brussels Convention of jurisdiction and the recognition and enforcement of judgments in civil and commercial matters[12] in that it sets out rules of jurisdiction and provides for the recognition and enforcement of judgments based on such rules of jurisdiction.

  4.3  In July 2000, France presented an initiative aimed at facilitating the exercise across borders of rights of access to children of divorced or separated couples. Since the proposal was confined in its scope to that of Council Regulation (EC) 1734/2000, it was criticised (including by the previous Committee)[13] as having the potential to produce arbitrary results between children of the same family, since it would by no means always be the case that such children would have the same biological parents.[14] The Justice and Home Affairs Council of 30 November 2000 concluded that work on the French initiative could proceed only in parallel with work of the extension of the scope of Council Regulation (EC) 1734/2000.

The draft Regulation

  4.4  The proposed Regulation seeks to establish a scheme of jurisdiction for all civil proceedings relating to parental responsibility, to provide for recognition and enforcement of orders made in such proceedings and to provide for a system of cooperation between central authorities of Member States. Maintenance obligations are excluded from the scope of the Regulation, since these already fall within the scope of Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

  4.5  The Regulation would apply to all civil proceedings relating to "parental responsibility" (Article 1(1)). It is not limited to matrimonial proceedings, and, on its face, would seem to apply to all cases where civil proceedings relate to the care and protection of children, including those brought by or against local authorities.

  4.6  Article 3 provides that the courts for the place where the child has his habitual residence are to have jurisdiction. Habitual residence is determined at the time the court is seised, so that if the habitual residence of the child changes, the jurisdiction of the courts will also change.

  4.7  Article 4 departs from the general principle of following the child's habitual residence (which is the rule under both the 1980 and 1996 Hague Conventions in this field)[15] by introducing the concept of the 'continuing jurisdiction' of the courts of the Member State in which the most recent judgment was given within the preceding six months.

  4.8  Article 5 also depart from the rules of the 1980 and 1996 Hague Conventions in relation to child abduction. As with the 1980 Hague Convention, the courts for the place to which the child has been wrongfully removed must order the immediate return of the child. However, in such circumstances, Article 13 of the Hague Convention allows the court not to order immediate return where there is a grave risk that return would expose the child to physical or psychological harm or otherwise place him or her in an intolerable situation. Under the proposed Regulation, this exception to return would no longer apply, and the court would be limited to ordering provisional measures under Article 9(2).[16]

  4.9  Articles 6 to 8 set out further rules of jurisdiction based, respectively on agreement or submission to the jurisdiction, on the child's presence (where the child's habitual residence cannot be established) and a residual rule under which jurisdiction may be asserted under national law where no other ground applies.

  4.10  Article 9 provides for jurisdiction to take provisional measures. In urgent cases, the courts of a Member State may take jurisdiction to protect a child present in that Member State even if the courts of another Member State have jurisdiction, but they must set a time not exceeding one month in which those courts must be seised.

  4.11  Under Article 10 the courts of a Member State where parental responsibility is exercised or enforcement of a judgment is sought may assert jurisdiction 'for the purpose of making practical arrangements for organizing the exercise of parental responsibility'.

  4.12  By virtue of Article 11, the court of a Member State which is seised of a case over which it has no jurisdiction must decline jurisdiction. Article 12 provides for an examination by the court as to the admissibility of proceedings where the respondent is not habitually resident in that State and has not received the document instituting the proceedings or an equivalent document in sufficient time for him to be able to arrange his defence.

  4.13  Article 13 permits a court which has jurisdiction over the substance of the matter to transfer the case to the courts of another Member State 'in exceptional circumstances where this is in the best interests of the child.'[17] Article 14 contains provisions requiring the court which is the second to be seised to stay proceedings pending a decision as to the jurisdiction of the court first seised.

  4.14  Article 15 provides that judgments are to be recognised and enforced in accordance with Chapter III of Regulation (EC) No 1347/2000. Articles 16 to 18 provide for cooperation between central authorities.

The Government's views

  4.15  In their Explanatory Memorandum of 31 October, the Parliamentary Secretary at the Lord Chancellor's Department (Mr Michael Wills) and the Minister for Justice in Scotland (Mr James Wallace) explain that the proposal is a measure under Title IV of the EC Treaty, and that the United Kingdom therefore has a period of three months within which to decide whether or not to opt in to the measure. They further explain that the measure was formally presented on 25 September, so that the United Kingdom must notify the Council no later than 24 December of its intention to opt in. They also explain that in taking this decision the Government is consulting judges and practitioners and that further information will be provided in due course.

  4.16  The Ministers assess the impact of the measure on United Kingdom law in these terms:

"This proposal envisages amendments to the scope of EC Regulation 1347/2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for the Children of both Spouses (the 'Brussels II Regulation'), which came info force on 1 March 2001. The scope of the regulation in relation to Parental Responsibility is limited to judgments regarding the children of both spouses in the course of matrimonial proceedings. It is likely that the provisions relating to children will be removed from the Brussels II Regulation and incorporated into this proposed Regulation. This will require amendments to existing provisions. Further, amendments to Part 1 of the Family Law Act 1986 and to Parts I and II of the Child Abduction and Custody Act 1985 will need to be considered."

  4.17  In describing the policy implications of the proposal, the Ministers draw attention to the effect it might have on the freedom of Member States to ratify the 1996 Hague Convention, as well as describing its relationship with existing EC measures. The Ministers comment as follows:

"This proposed Regulation seeks to establish a scheme of jurisdiction relating to all orders of parental responsibility, the recognition and enforcement of such orders and a system of co-operation between central authorities. Maintenance obligations, (which are covered by EC Regulation No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters), are excluded. As the scope of the proposed Regulation extends to access orders, consideration will have to be given as to how to proceed with negotiations on the French initiative on the mutual enforcement of judgments on rights of access to children (SN 3383/00). The consolidation of all these initiatives, including those relating to children in the Brussels II Regulation, into one single instrument to assure consistency would be desirable. The Commission has indicated that it is agreeable to this.

"Consideration will have to be given to the relationship of this proposed Regulation to the provisions of the two Hague conventions in this area: the 1980 agreement on the Civil Aspects of Child Abduction and the 1996 agreement on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. In May of this year, the Government approved the ratification of the 1996 Convention. The proposed Regulation would take priority, with the Conventions addressing situations external to the Community. Article 5(2)-(4) of the proposal may affect the competency of Member States to negotiate independently amendments to the 1980 Hague Convention. This will require further consideration. For the purposes to consistency, ease of understanding and use, the provisions of this proposed Regulation in principle should be aligned with those of the 1996 Convention.

  4.18  The Ministers also comment in detail on the Articles of the proposal. Their principal comments are as follows:

"Article 1 scope, the Regulation shall apply to all civil proceedings relating to parental responsibility. Parental Responsibility is not defined in the Regulation. It will be necessary to consider whether a definition is required and if so whether it should follow that contained in the 1996 Hague Convention.

"Article 2 holder of parental responsibility, consideration of this widely drafted definition will be required."

"Article 4 continuing jurisdiction, provides for the jurisdiction of the Member State of the last judgment to continue for six months in certain circumstances. This is a departure from the rule of Habitual Residence and careful consideration will have to be given as to whether such a provision is desirable.

"Article 5 child abduction, in such cases the courts of the Member State to which the child has been wrongfully removed or retained must order the immediate return of the child, not withstanding Article 13 of the 1980 Hague Convention, subject to their power to take provisional measures to protect the child under Article 9 for a period of 1 month. Here the courts of the Member State of the child's habitual residence would determine the Article 13 issue, rather than the court of the Member State to which the child has been removed, as in the said Hague Convention. This departure from the 1980 Hague Convention will require careful consideration.

"Article 6 prorogation of jurisdiction, allows for the agreement between the holders of parental responsibility to bring the case before the courts of a Member State where the child has a substantial connection. This is similar to the provisions of Article 10 of the 1996 Hague Convention. However, 6(2) submission to the jurisdiction, may be too inflexible in the context of family law. This will require consideration."

"Article 10 jurisdiction to organise exercise of parental responsibility, this enables courts of a Member State where parental responsibility is exercised or enforcement of a judgment is sought to make practical arrangements for the exercise of parental responsibility. There is no corresponding provision in the 1996 Hague Convention. Careful consideration will have to be given as to whether such a provision is necessary or desirable."

"Article 13 transfer to a court better placed to hear the case, this is a limited provision based on the ground of forum conveniens. This provision is more limited than that in the 1996 Hague Convention. This will require further consideration."

Conclusion

  4.19  We are grateful to the Ministers for their detailed and helpful Explanatory Memorandum. We note that no decision has yet been taken on whether to opt in to this measure, and we ask the Ministers to inform us of the decision as soon as possible.

  4.20  We agree with the Ministers that the provisions of this proposal should be aligned with those of the 1996 Hague Convention, in the interests of consistency, ease of understanding and use. We do not see what useful purpose is served by adopting yet further variations from international standards in this area.

  4.21  We note that in May of this year the Government approved the ratification of the 1996 Hague Convention, but we understand that the presentation of this proposal by the Commission has raised doubts over the United Kingdom's competence to do so. We note that the Commission has said that it is preparing a proposal to approve the 1996 Hague Convention. We ask the Ministers for their assessment of the effect of the present proposal on the question of competence and on the scope for ensuring that adoption of the present proposal is linked to adoption of the promised measure approving the 1996 Hague Convention.

  4.22  In the meantime, we shall hold the document under scrutiny.


11  OJ No. L 160, of 30.6.00, p.19. Back

12  Now embodied in Council Regulation (EC) No. 44/2001, OJ No. L 12, 16.1.01 p.1. Back

13  (21662) -; HC 23-xxviii (1999-2000), paragraph 5 (1 November 2000). Back

14  For example, the children of the first marriage of a widow who remarries would be covered by different rules from those applying to her children of the second marriage. Back

15  The 1980 Hague Convention on the Civil Aspects of Child Abduction and the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. Back

16  The Commission explains that its proposed solution is 'premised on a level of trust inherent in a common judicial area that the courts of another Member State can equally protect the child'. The Commission does not explain why this 'level of trust' might not equally apply to the application of the exception under Article 13 of the Hague Convention by the courts of Member States, making it unnecessary to remove this guarantee for the child.  Back

17  To a limited extent, this introduces the concept of forum non conveniens which is well established in English law, but rarely applied in EC measures. Back


 
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