Select Committee on European Scrutiny Twenty-First Report


MUTUAL RECOGNITION OF DECISIONS ON PARENTAL RESPONSIBILITY


(22984)
14411/01
COM (01) 680

Draft Council Decision authorising the Member States to sign in the interest of the European Community the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Hague Convention).
Legal base:Article 61(c) EC; consultation; unanimity
Document originated20 November 2001
Forwarded to the Council: 20 November 2001
Deposited in Parliament: 10 December 2001
Department:Lord Chancellor's Department; Scottish Executive Justice Department
Basis of consideration: Minister's letter of 30 January; EM of 5 February 2002
Previous Committee Report: None; but see (22652) —: HC 152-ix (2001-02), paragraph 4 (5 December 2001)
To be discussed in Council: No date set
Committee's assessment:Legally and politically important
Committee's decision:Cleared



Background

  10.1  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 decisions relating to visiting rights to children.

  10.2  On 5 December we considered a draft Regulation[15] which sought 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. We noted that the Regulation departed 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)[16] 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. We also noted that Article 5 departed from the rules of the 1980 and 1996 Hague Conventions in relation to child abduction.

  10.3  A particular concern was the effect the Regulation might have on the freedom of Member States to ratify the 1996 Hague Convention. In May 2001, the Government had approved the ratification of the 1996 Convention, but we understood that, for reasons of external Community competence, the presentation of the draft Regulation by the Commission has raised doubts as to the freedom of the UK to sign and ratify that Convention[17].

  10.4  The Council Legal Service has concluded that an element of external Community competence has been established in this area. It considers that ratification of the 1996 Hague Convention would affect the scope of Council Regulation (EC) No. 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses[18] ('the Brussels II Regulation'), where the judgments sought to be enforced under the Hague Convention concern parental responsibility for the children of both spouses and those children are resident outside the European Community. In this area, the rules in the two instruments differ and those in the Hague Convention would prevail over those in the Brussels II Regulation.

The draft Council Decision

  10.5  The draft Council Decision would authorise the Member States (except Denmark, which is not a party to the Brussels II Regulation) to sign the 1996 Hague Convention. When signing the Convention, each Member State would be required to make a declaration in the following terms:

    "The Member States of the European Community have been authorised in the interests of the Community to express their consent to be bound by the provisions of the Convention that fall under the competence of the Community. As a result, in conformity with Article 52 of the Convention, the Convention shall take precedence over Community rules in respect of children who are not habitually resident in a Member State and who are habitually resident in another Contracting State.

    "As soon as possible, the necessary steps will be taken to open negotiations for a protocol to the Convention that would allow for the accession of the Community and would safeguard the application of Community rules for the recognition and enforcement of a decision taken in one Member State in another Member State.

    "For purposes of this declaration, the term 'Member States' refers to the Member States of the European Community bound by common rules in the areas covered by the Convention."

The Government's view

  10.6  In their Explanatory Memorandum of 5 February 2001, the Parliamentary Secretary at the Lord Chancellor's Department (Mr Michael Wills) and the Minister for Justice in Scotland (Mr James Wallace) welcome the draft Decision is so far as it authorises Member States to sign the 1996 Hague Convention, but they note that a further Decision will be required from the Council in due course to permit ratification of the Convention. They question the need for any protocol to the Hague Convention and point to the delay that this would cause, since it might not be practicable, at least in the short term, to secure the holding of a Diplomatic Conference at the Hague in order to conclude a protocol with non-Member States.

  10.7  The Ministers refer to the Commission's reasons for proposing a protocol as being based on the concern that the rules in the Hague Convention would take precedence over those of the Brussels II Regulation in relation to children who are not habitually resident in a Member State but who are resident in another Contracting State, and that this would undermine the principle of the mutual recognition of judgments within the Community. This concern reflects the fact that the rules on recognition and enforcement in the Hague Convention differ from those in the Brussels II Regulation. In particular, under the Hague Convention the court before which enforcement is sought may review the jurisdictional basis on which the order was made and may refuse recognition if the basis used does not conform to the grounds contained in the Convention. By contrast, under the Brussels II Regulation, no such jurisdictional challenge is permitted at the recognition stage.

  10.8  The Ministers propose that this concern be met by the making of a suitable declaration by Member States when signing the Convention. They explain this as follows:

    "Because the grounds of non-recognition in the Convention are optional (unlike the mandatory rules in the Brussels II Regulation) the Government supports the idea of the Member States in declarations to be made when signing the Convention committing themselves to specifying in their legislation implementing the Convention that the ground of non-recognition contained in Article 23(2)(a)[19] of the Convention should not be applied to judgments from other Member States which concern children who are habitually resident in Contracting States outside the Community. This pragmatic approach should serve both to preserve the legitimate Community interest whilst avoiding the need for Protocol."

  10.9  The Ministers also express concern about the possible future effect of any legal requirement for simultaneous ratification of the 1996 Hague Convention by all the Member States. They point to the risks of significant delay to the entry into force of the Hague Convention, and undertake that the Government will do its best to work with other Member States to avoid such an outcome.

  10.10  Finally, the Ministers report that one Member State[20] has indicated that it will not agree to authorisation by the Community of ratification of the Hague Convention until sufficient progress has been made on the negotiations for the Council Regulation on parental responsibility[21]. The Ministers again indicate that the Government will do its best to ensure that this does not result in any undue delay to the ratification of the Hague Convention.

Conclusion

  10.11  We thank the Ministers for their detailed and helpful Explanatory Memorandum. We agree that it is impracticable and unnecessary to make signature of the 1996 Hague Convention conditional on the opening of negotiations for a Protocol to that Convention, and that declarations along the lines of those advocated by the Ministers would provide the pragmatic solution.

  10.12  We note with concern the reports that one Member State has indicated that it will oppose a decision to permit ratification of the Hague Convention until what it considers to be sufficient progress has been made on the draft Council Regulation on parental responsibility. We urge the Ministers to make it clear in response that agreement to the Council Regulation will be conditional on agreement to a decision to authorise ratification of the Hague Convention.

  10.13  Having made this observation, we have no further questions to ask on the present document and we therefore clear it from scrutiny.



15  (22652) -; see headnote to this paragraph. Back

16  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

17  The argument was that the adoption of Council Regulation (EC) No. 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses conferred external competence on the Community in relation to this subject-matter, and therefore prevented Member States from signing and ratifying the 1996 Hague Convention on their own. The Netherlands has already signed the 1996 Hague Convention, but has yet to ratify. Back

18  OJ No L160, 30.6.00, p.19. Back

19  This provides that recognition may be refused if jurisdiction was not based on one of the grounds provided for under Chapter II of the Convention. Back

20  Because of the Council's rules on the confidentiality of its proceedings, this Member State is not identified. Back

21  See footnote 15. Back


 
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