Select Committee on European Scrutiny Thirty-Sixth Report



6. JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF JUDGMENTS IN MATRIMONIAL MATTERS AND IN MATTERS OF PARENTAL RESPONSIBILITY

 

(a)

(22652)

COM(01) 505

(b)

(23473)

8395/02

COM(02) 222

 

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

 

 

Draft Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters or parental responsibility repealing Regulation (EC) No. 1347/2000 and amending Regulation (EC) No. 44/2001 in matters relating to maintenance.

Legal base:

Article 61(c) EC; consultation; unanimity

   

Document Originated:

(b) 3 May 2002

Deposited in Parliament:

(a) 27 September 2001

(b) 17 May 2002

Department:

Lord Chancellor's Department; Scottish Executive Justice Department

Basis of consideration:

(a) Minister's letter of 30 January 2002

(b) EM of 10 June 2002

Previous Committee Report:

(a) HC 152-ix (2001-02), paragraph 4 (5 December 2001), HC 152-xxi (2001-02), paragraph 2 (13 March 2002)

(b) 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

    1. Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters relating to children have been the subject of a Regulation adopted by the Council (Council Regulation (EC) No. 1347/2000) and of a number of proposals to the Council. The Council Regulation (often referred to as the Brussels II Regulation), which came into force on 1 March 2001, is concerned with jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for the children of both spouses. That Regulation is limited to judgments on the parental responsibilities for the children of both spouses given on the occasion of matrimonial proceedings.
    2. 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. This initiative was similarly limited in its scope to children of both spouses, and was open to the criticism (including by the previous Committee[29]) that it could produce arbitrary results between children of the same family, since it would by no means always be the case that the children of divorced or separated couples would have the same biological parents. The Justice and Home Affairs Council concluded on 30 November 2000 that work of the French initiative could only proceed in parallel with work on the extension of the scope of Council Regulation (EC) No 1734/2000.
    3. The Commission presented a proposal (document(a)) for the extension of Council Regulation (EC) No 1734/2000 which we considered on 5 December 2001. This proposal was for a draft Council Regulation to establish a scheme of rules 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 would be excluded from the scope of the Regulation (since these were already dealt with under Council Regulation No 44/2001[30]), but otherwise it would apply to all civil proceedings relating to the care and protection of children, including those brought by or against local authorities.
    4. We noted that the draft Council Regulation departed from the generally accepted principle of following the child's habitual residence (which is the rule under both the 1980 and 1996 Hague Conventions in this field)[31] 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 the Regulation would depart from the rules of the 1980 and 1996 Hague Conventions in relation to child abduction, by overriding the effect of Article 13 of the 1980 Hague Convention. (This allows a court in the place to which a child has been wrongfully removed 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).
    5. We noted a number of other detailed differences between the proposed Regulation and the 1980 and 1996 Hague Conventions, and held the document under scrutiny pending deposit of a revised text.
    6. The new draft Council Regulation

    7. The new draft Council Regulation (document(b)) is a revised proposal which brings together in the one instrument the provisions of Council Regulation (EC) No 1347/2000, and those of the earlier proposed draft Regulation (document(a)), and elements of the French initiative. These would be consolidated into the one Regulation which would repeal the provisions of Regulation 1347/2000. The provisions of Regulation 1347/2000 on divorce and matrimonial proceedings are taken over in their entirety in the new draft Regulation, but a new set of rules is proposed in relation to parental responsibility. Maintenance obligations will continue to fall within Council Regulation No 44/2001 and the intention of the Commission is to withdraw its earlier proposal (document (a)).
    8. The proposal is divided into a series of Chapters dealing with jurisdiction in matters of divorce, legal separation and marriage annulment, and parental responsibility (Chapter II), child abduction (Chapter III), recognition and enforcement (Chapter IV), cooperation between central authorities (Chapter V) and relations with other instruments (Chapter VI).
    9. Chapter I (Articles 1 to 4) deals with scope, definitions and basic principles. By virtue of Article 1 the Regulation is to apply to all civil proceedings relating to divorce, legal separation, annulment of marriage and the 'attribution, exercise, delegation, restriction or termination of parental responsibility'. Matters relating to maintenance and measures taken as a result of penal offences committed by children are excluded.
    10. Articles 3 and 4 of the Regulation reproduce Article 24 of the Charter of Fundamental Rights and provide, respectively, for the right of the child 'to maintain on a regular basis a personal relationship and direct contact with both parents' and the right of the child to be heard on matters relating to parental responsibility.
    11. Chapter II Section 1 (Articles 5 to 9) is concerned with jurisdiction in matters of divorce, legal separation and marriage annulment and reproduces the corresponding provisions of Regulation 1347/2000.
    12. Chapter II Section 2 (Articles 10 to 15) contains a series of new rules on jurisdiction in matters of parental responsibility. Article 10 provides a basic rule that jurisdiction is to be based on the habitual residence of the child at the time the court is seised. This corresponds to the rule in the 1980 and 1996 Hague Conventions[32]. Article 11 departs from the rules of the Hague Conventions by providing for the jurisdiction of the Member State of the most recent judgment to continue for a period of six months where there is a change of residence of the child and a person having parental responsibility continues to reside in the Member State of the former residence of the child.
    13. Article 12 provides that the courts having jurisdiction over divorce, legal separation or the annulment of marriage are also to have jurisdiction in matters of parental responsibility if the child is habitually resident in one of the Member States and the jurisdiction is accepted by the spouses and is in the best interests of the child. The provision is similar to Article 10 of the 1996 Hague Convention. Article 13 provides for jurisdiction to be based on the child's presence, where no habitual residence can be established, and Article 14 provides for a residual jurisdiction to be established by the laws of the forum State where no other court has jurisdiction by virtue of Articles 10 to 13 or 21. These provisions correspond, respectively, to Article 6 of the 1996 Hague Convention and to Article 8 of Regulation 1347/2000.
    14. Chapter II Section 3 sets out a series of provisions common to the matters covered by Sections 1 and 2 and deals with the question of when a court is seised, the examination by a court of jurisdiction and admissibility, pending and related actions and provisional measures. These provisions have their equivalents in Regulation 1347/2000 and the 1996 Hague Convention.
    15. Chapter III (Article 21 to 25) is concerned with child abduction. Article 21 provides that the courts of the Member State in which the child was habitually resident before the abduction are to continue to have jurisdiction. However, this rule is displaced if the child has acquired an habitual residence in another Member State and if each holder of parental rights has acquiesced in the abduction or if the child has resided in that other Member State for at least a year after the holder of rights of custody 'has had or should have had knowledge of the whereabouts of the child' and no order has been made for his return and the child is settled in his new environment.
    16. Article 22 obliges the central authority to return the child within one month of finding him, unless an application for protective measures under Article 23 has been made. Under Article 23, the court hearing an application for protective measures may order that the child should not be returned if there is a grave risk that return would expose the child to physical or psychological harm or would otherwise place him in an intolerable situation, or if the child objects to being returned and 'has attained an age and maturity at which it is appropriate to take account of his of her views'. These provisions correspond to Article 13 of the 1980 Hague Convention, but, unlike the provision in the Hague Convention, the power of the court to order that the child not be returned is provisional only, and may be superseded by a judgment on custody given by the court of child's habitual residence immediately before his abduction.
    17. Article 24 provides for the judgment on custody to be taken by the court of the Member State in which the child had his habitual residence immediately before his abduction, and for this judgment to supersede any order made for protective measures. The central authorities of the Member State to which the child has been abducted will be obliged to inform the central authorities of the Member State of the child's habitual residence, which authorities will in turn be obliged, within one month of receiving this information, to seek a judgment on custody. Where such an order is sought, the court must hear the child, 'unless this appears inappropriate having regard to his of her age or degree of maturity'[33].
    18. Sections 1 and 2 of Chapter IV (Articles 26 to 44) deal with the recognition and enforcement of judgments in matrimonial and its provisions correspond to those made in Regulation 1347/2000.
    19. Section 3 of Chapter IV (Articles 45 to 49) contains provisions on the enforcement of rights of access to a child and on the return of a child. By virtue of Article 45, Section 3 applies to orders for the return of a child and to rights of access, but in the latter case only in respect of rights of access granted to a parent. Article 46 provides that judgments on rights of access are to be recognised and enforced without any special procedure being required if the judgment 'fulfils the procedural requirements' and has been certified in the country of origin in accordance with Article 46(2). Article 46(2) provides that the court of origin shall certify a judgment only if it was not given in default of appearance, and if the child was given an opportunity to be heard 'unless a hearing was considered inappropriate having regard to his or her age or degree of maturity'.
    20. Article 47 provides that an order for the return of a child under Article 24 is to be recognised and enforced on production of a certificate from the court of origin, and that no further procedure is to be required. The same restrictions on the production of a certificate apply in such a case as apply under Article 46(2). Article 48 provides that no appeal is to lie against the issue of a certificate under either Article 46 or 47.
    21. Section 4 of Chapter IV (Articles 50 to 54) contains further provisions on enforcement corresponding to those made in Regulation 1347/2000 and 44/2001.
    22. Chapter V (Articles 55 to 59) contains provisions on co-operation between central authorities, and Chapter VI (Articles 60 to 62) deals with the relationship between the proposed Regulation and other bi-lateral and international instruments. Article 61 provides that the Regulation is to take precedence over the 1980 and 1996 Hague Conventions.
    23. Chapters VI and VII (Articles 63 to 71) contain transitional and final provisions. Article 70 makes a minor amendment to Council Regulation 44/2001 (which Regulation covers, inter alia, the question of maintenance) by enabling a court to assume jurisdiction in matters relating to maintenance where these are ancillary to proceedings concerning matrimonial matters or parental responsibilities.
    24. The Government's view

    25. In their Explanatory Memorandum of 10 June the Parliamentary Secretary at the Lord Chancellor's Department (Baroness Scotland) and the Minister for Justice in Scotland (Mr Jim Wallace) explain that the United Kingdom has until 16 August 2002 to decide whether or not to opt into this proposal under Article 3 of the Protocol to the Treaty of Amsterdam on the position of the United Kingdom and Ireland.
    26. The Ministers welcome the principle of consolidating into one instrument the provisions on Regulation 1347/2000 (the 'Brussels II' Regulation), the provisions in the French initiative on rights of access and the provisions of the earlier Commission proposal on parental responsibilities. They consider that this will help to assure consistency.
    27. However, the Ministers express concern over the relationship between the proposed Regulation and the provisions of the 1980 and 1996 Hague Conventions. They point out that the 1996 Convention has wide support among judges, academic experts and family and child care law practitioners and that the Government has approved in principle the ratification of this Convention by the UK. They further point out that the proposed Regulation would take priority in intra-Community cases, with the Conventions addressing situations external to the Community.
    28. They draw attention to the child abduction provisions of Articles 21 to 24 of the proposal and point out that these may, through the rules governing Community competence, affect the freedom of Member States to negotiate amendments to the 1980 Hague Convention independently of the Community. They further consider that, for the purposes of consistency and ease of understanding and use, the provisions of the proposed Regulation should as a matter of policy be aligned as far as possible with those of the 1980 and 1996 Conventions.
    29. In addition to raising the question of the compatibility of the proposal with the 1980 and 1996 Conventions, the Ministers identify a number of provisions which they consider will require detailed consideration. These include the replication of Article 24 of the Charter of Fundamental Rights in Articles 3 and 4, the six month continuation of jurisdiction provided for in Article 11 and the child abduction provisions in Articles 21 to 25. The Ministers point out that these latter provisions depart significantly from those of the 1980 Hague Convention. The Ministers also draw attention to Articles 45 to 49 on the enforcement of orders concerning rights of access and for the return of a child as requiring careful consideration.
    30. More generally, the Ministers conclude that the Regulation will require further detailed examination and that the Government will ensure that all necessary consultation is carried out with judges lawyers and other professionals and specialist organisations in the field, in order that the legitimate interests of children, as well as of parents, are properly taken into account and reflected in the provisions of the Regulation.
    31. Conclusion

    32. We are grateful to the Ministers for their detailed and helpful description of this proposal. We agree with them in welcoming in principle the elaboration of a single instrument to deal with jurisdiction and recognition and enforcement of judgments in matrimonial proceedings and those concerning rights of access to and custody of children.
    33. We also agree with them in their desire to secure a Regulation which departs as little as possible from the provisions of the 1980 and 1996 Hague Conventions. We note with concern that the provisions on child abduction appear to depart from those of the 1980 Hague Convention and that they also appear to place greater weight on the rights of the parent than those of the child. We are particularly concerned that the court is given so much discretion not to hear the child's views and that the resulting order for return becomes automatically enforceable with no right of appeal. We ask the Ministers if they share this concern, and how they consider a better balance might be drawn between the rights of the child and those of the parents.
    34. We welcome the Ministers' intention to consult widely on this proposal and we shall look forward to an account, in due course, of the views which have been expressed. We shall hold the documents under scrutiny in the meantime.

 


29  (21662): HC 23-xxviii (1999-2000), paragraph 5 (1 November 2000). Back

30  OJ No L 12, 16.1.01, p.1. The Regulation converts the 1968 Brussels Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters into a Community Regulation. Back

31  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

32  The 1980 Hague Convention on the Civil Aspects of Child Abduction, 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

33  Unlike the position with protective measures, (and also unlike the position under Article 13 of the 1980 Hague Convention) there is no requirement for the court to consider whether or not the child objects to being returned or whether return would expose him to physical or psychological harm. Back

 
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