Select Committee on European Communities Fifth Report


22 July 1997

  By the Select Committee appointed to consider Community proposals, whether in draft or otherwise, to obtain all necessary information about them, and to make reports on those which, in the opinion of the Committee, raise important questions of policy or principle, and on other questions to which the Committee considers that the special attention of the House should be drawn.




  1.    The purpose of the proposed Convention is to extend to matrimonial matters the concept and scheme of the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters[1] ("the 1968 Brussels Convention"). That Convention provides a set of rules determining which Member State's courts have jurisdiction in relation to a particular matter (such as a commercial contract) and when and how the judgments of the courts of one Member State acting under the Convention must be recognised and enforced in other Member States. The 1968 Brussels Convention applies to all "civil and commercial matters" but expressly does not apply to "the status or legal capacity of natural persons". This phrase is generally understood to include questions of nullity of marriage, divorce and judicial separation. At the time of its conclusion, the jurisdictional laws of the Member States on matrimonial matters were considered so disparate as to preclude their effective unification in the 1968 Convention without major change to its nature[2].

  2.    The present initiative began in 1992 when Germany proposed that the 1968 Brussels Convention be extended to cover certain family law matters. One of its purposes was to deal with problems experienced in particular between France and Germany, on account of the lack of mutual recognition of their divorce decrees and the possibility of competing divorce proceedings relating to the same marriage. In June 1994 the Council of Justice Ministers instructed a Working Group of experts to prepare a draft convention on jurisdiction and the recognition and enforcement of judgments in matrimonial matters. In June 1995 the Council considered the progress made and agreed that work continue and that child custody orders made ancillary to divorce proceedings be included in the scope of the Convention.

  3.    The Convention (frequently referred to as "Brussels II") would have two principal fields of application; the first concerning divorce, nullity of marriage and legal separation; the second relating to the exercise of parental authority over the children of the spouses on the occasion of such matrimonial proceedings (for convenience we use the term "custody order"[3] in relation to the latter). The draft Convention is broadly modelled on the 1968 Brussels Convention. It sets out rules as to when a State will have jurisdiction in matters relating to nullity, divorce and judicial separation and child custody. The Convention provides for the situation where the same matter, or related matters, is brought before the courts in different States. It also contains rules for the recognition and enforcement of judgments in matrimonial matters and for Conventions in the field. It is proposed that the European Court of Justice be given jurisdiction to rule on questions of interpretation of the Convention.

  4.    International co-operation in these matters is not new. There exists already a number of conventions dealing with matrimonial and child custody matters.

    -  The 1970 Hague Convention on recognition and enforcement of judgments in matrimonial matters[4] ("the 1970 Hague Convention") sets out rules for the reciprocal recognition of divorce decrees and legal separations. Some thirteen States (including the United Kingdom) are party. The Member States which have not ratified are Austria, Belgium, France, Germany, Greece, Ireland and Spain.

    -  The Hague Convention on the civil aspects of international child abduction 1980 ("the Hague Child Abduction Convention") has the object of restoring children who have been wrongfully removed from the State of their habitual residence and lays down a procedure to enable their prompt return. It is, in practice, a most important instrument in relation to international custody disputes. Some twenty-four States are party to the Convention including the United Kingdom[5] and all other Members of the Union except Belgium.

    -  The European Convention on recognition and enforcement of decisions concerning custody of children ("the Luxembourg Convention") emanates from the Council of Europe. It provides for the recognition in one Contracting State of decisions made in another Contracting State except in certain limited circumstances. The United Kingdom is a party to the Convention[6], as are all other Member States.

    -  The Hague Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children ("the 1996 Hague Convention") provides a comprehensive regime for child custody matters which is not restricted to questions arising in the context of matrimonial proceedings but deals also with independent proceedings relating to parental responsibility. It extends to the placement of a child in institutional care and the supervision by a public authority of the care of a child It deals with applicable law as well as jurisdiction, recognition and enforcement and provides for co-operation between the authorities of Contracting States. The Convention was opened for signature on 19 October 1996.

  5.    Sub-Committee E (Law and Institutions), whose members are listed in Appendix 1, carried out an enquiry into the main issues raised by the proposal for a Convention. Witnesses were invited to consider all or any of the following questions:

    (i)  Is there a need for the Convention?

    (ii)  What is the role of the Community?

    (iii)  What would be the impact of the Convention on the law and practice in the United Kingdom?

    (iv)  What would be the relationship of the Convention with other international instruments?

Witnesses were also invited to describe what advantages and disadvantages they foresaw arising from the proposal and to comment on the practical implications. The Sub-Committee received the written and oral evidence from the witnesses listed in Appendix 2. The evidence is printed with the Report. We are grateful to all those who assisted in this enquiry.

1   Given effect in the United Kingdom by the Civil Jurisdiction and Judgments Act 1982. The 1968 Convention has been amended from time to time to take account of the accession of new Member States to the Community. The 1968 Convention formed the basis of the Lugano Convention 1988 which extends the rules on jurisdiction and enforcement of judgments to the EFTA countries. Back

2   The position is described in the official report on the Convention prepared by Mr P Jenard. [1979] O.J. C59, at pp 8-13. Back

3   The term "custody order" is used in this report to embrace judgments relating to the exercise of parental authority (under the proposal) or parental responsibility (in the terms of the 1996 Hague Convention). Domestic law in the United Kingdom no longer uses the term "custody order". Since the Children Act 1989 the concept of "parental responsibility" has replaced the notion of "custody" and the term" custody orders" has become technically redundant. English courts now make a range of orders including "residence orders", "contact orders", "prohibited steps orders" and "specific issues" orders. Scottish courts have a wide jurisdiction to make orders relating to parental responsibility or parental rights, including residence orders and contact orders. Back

4   Originally given effect in the United Kingdom by the Recognition of Divorces and Legal Separations Act 1971 and now subsumed in Part II of the Family Law Act 1986. Back

5   The Hague Child Abduction Convention is given effect in the United Kingdom by the Child Abduction and Custody Act 1985. Back

6   With the exception of its provisions on abduction (where the Hague Child Abduction Convention is preferred) the Luxembourg Convention is given effect in the United Kingdom by the Child Abduction and Custody Act 1985. Back

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Prepared 30 July 1997