Select Committee on European Union Forty-Ninth Report


PARENTAL RESPONSIBILITY (8395/02)

Letter from the Chairman to the Rt Hon Baroness Scotland of Asthal QC Parliamentary Secretary Lord Chancellor's Department

  Sub-Committee E (Law and Institutions) considered this proposal at its meeting on Wednesday 17 July. The Committee decided to retain the document under scrutiny. We would be grateful for the following information.

  First, the Committee is grateful for your Explanatory Memorandum and in particular for its analysis of the relationship of the Commission's proposal with the two Hague Conventions, of 1980 and 1996. You will recall that the Committee has previously taken the view that any Community instrument should seek to follow as closely as possible the provisions of the Hague Conventions, any departure needing objective justification and clearly identifiable benefits. In this context we note that our sister Committee in the House of Commons has drawn attention to how the proposed revisions on child abduction would appear to depart from the 1980 Hague Convention and in particular they appear to place greater weight on the rights of the parent than those of the child. The Commons Scrutiny Committee has expressed concern that the court would be given such wide discretion not to hear the child's views and also that the resulting order for return would become automatically enforceable with no right of appeal. We look forward to hearing your response on these points.

  Second, as you will be aware from previous correspondence on this and other subjects, the Committee is particularly concerned that the Government should undertake a sufficiently wide consultation in order to inform its policy making and decision taking. You say that the "Government will ensure that all necessary consultations will be properly carried out among judges, lawyers, and other professionals and specialist organisations in the field". The Committee would welcome details as to the extent of that consultation exercise. We would also be grateful if you could provide a summary of the results and of the Government's response to the main points made by consultees.

Letter from the Rt Hon Baroness Scotland of Asthal QC Parliamentary Secretary to the Chairman

  Thank you for sending to me the draft report of the European Select Committee on this proposal for a Regulation. I can confirm that in July, the President of the Council of the European Union was notified of the UK's intention to participate in this proposal.

  You referred to the comments of the European Scrutiny Committee of the House of Commons concerning the balance of interests between parent and child in the chapter on Child Abduction in the Commission proposal. You also requested an account of the views expressed by our consultees on the proposal.

  I continue to share your concerns on the child abduction provisions. There is strong opposition amongst Member States to the replacement of the 1980 Hague Convention on Child Abduction by an intra-Community scheme as envisaged by the Commission proposal. To move negotiations forward the Danish Presidency is presently working on a text to address situations of wrongful removal or retention in a different way: I understand that their intention is not to replace the Hague Convention with an intra-Community scheme, but to ensure eventual return in more cases by way of increased mutual recognition, within a limited range. I note the Committee's continuing support for a Regulation which departs as little as possible from the provisions of the 1980 and 1996 Hague Conventions. The UK will continue to maintain, and seek support for, the position that the text of the proposal should seek to follow the provisions of the two Hague Conventions of 1980 and 1996 as closely as possible, and should complement rather than override them.

  You also ask for an account of the views expressed by those we consulted over the Commission's revised text. The following bodies were consulted:

  The President of the Family Division and her International Committee

  Solicitors Family Law Association

  The Law Society

  Family law Bar Association

  Reunite

  Pact (Lady Meyer)

  The Child Abduction Unit (Office of the Official Solicitor).

  They were asked for their comments on (a) whether the UK should officially opt-in to negations in accordance with the Protocol to the EC Treaty and (b) on the text of the proposal.

  As to the opt-in, no dissent was expressed. Those who did comment were of the opinion that the UK should exercise the Protocol and formally opt-in.

  As to the text, the broadening of the scope of the Brussels II Regulation [on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses] was welcomed (so that in matters of parental responsibility all the children of the family would be covered irrespective of the marital status of their parents). There was also support for the principle or reciprocal recognition and enforcement of access orders, which it was felt should not be limited to parents only.

  The majority of the comments made concerned the child abduction provisions (Articles 21-24) and the role of the Central Authorities (Articles 55-59). These comments reflected the concerns that your Committee have expressed and which I share. The 1980 Hague Convention is seen by consultees as an instrument which works well and there is concern that the Regulation should not undermine it or affect its operation. There is also concern about the potentially onerous duties imposed on the Central Authorities and the extent to which they will be capable of being performed in practice; in particular Article 57, which puts the onus upon the Central Authority to locate and return the child within very tight time limits.

  In negotiations, the Commission has not gained majority support for, and has met significant opposition to, the provisions on child abduction and Central Authorities; and in each case the Commission has indicated that it will consider redrafting these provisions. We will consult on the revised texts when they are to hand.

  I hope this reply is helpful. However, if I can be of further assistance, please do not hesitate to return to me.

30 September 2002

Letter from the Chairman to the Rt Hon Baroness Scotland of Asthal QC Parliamentary Secretary Lord Chancellor's Department

  Thank you for your letter of 30 September which was considered by Sub-Committee E (Law and Institutions) at its meeting on 16 October. We are grateful for the information about your consultation exercise.

  We are pleased to note that you share the Committee's concerns on the child abduction provisions. We urge the Government to remain firm and resist any departure from the 1980 and 1996 Hague Conventions.

  The Committee decided to retain the document under scrutiny. We will be pleased if you would keep us informed of the progress of the negotiations.

Letter from the Rt Hon Baroness Scotland of Asthal QC Parliamentary Secretary to the Chairman

  Thank you for your letter of 21 October. I am writing to provide additional information to that contained in the Supplementary Explanatory Memorandum of 13 November, for the benefit of the Committee in considering this item. It is my intention to give political agreement to this proposal by the Danish Presidency, should it be necessary to do so, at the Justice and Home Affairs Council meeting on 29 November, 2002.

  This remains a difficult dossier to negotiate, particularly and principally because of the drive to include provisions dealing in some way with child abduction. There is still strong support from certain Member States for the replacement of the 1980 Hague Convention with in intra-Community scheme for EU cases along the lines proposed in the Commission's revised text of May of this year.

  However, the Danes have throughout their tenure of the Council Presidency sought, creatively and from the UK's point of view helpfully, to break the impasse on the child abduction issue. They have now produced a proposal, JUSTCIV 175, upon which they will seek to obtain agreement of Ministers at the forthcoming JHA Council meeting.

  As is explained in the Supplementary Explanatory Memorandum, this new proposal make significant changes to the Commission's proposal, which owe much to the thinking underlying the UK's own arguments for a completely different approach based around enhanced mutual recognition, and which I can accordingly support. It is important and in the UK's interests that those gains are now secured, before the Presidency passes to Greece and then Italy, neither of which is so well in tune with our thinking on these issues.

  The Presidency proposal is based on the retention of the 1980 Convention in EU cases, with limited EU provisions where Convention proceedings have been concluded and resulted in a non-return order, which are intended as complementary to the Convention and which will not affect its operation. Moreover, the jurisdictional provisions are based on Article 7 of the 1996 Hague Convention on Parental Responsibility, and stay far closer to that Convention's approach than some other Member States had been arguing for.

  If the Presidency is able to deliver agreement on this proposal, I feel that we will have secured not only our main negotiating aims for this element of the dossier, but will have produced worthwhile additional measures which will make the 1980 Convention more robust. At present under the Convention once a non-return order has been made, there is no internationally agreed procedure whereby a subsequent decision on custody can be enforced, and it is a matter of national law, which tends to mean that it will be very difficult to enforce such an order. This is despite the fact that Article 19 of the Convention makes it clear that a non-return order should not be taken as a determination on the merits of any custody issue. The Hague Children Convention of 1996 goes some way towards making enforcement of such an order possible; and the Presidency proposal goes further in providing for the enforcement of such a custody order by way of an accelerated process, in certain circumstances where it is considered in the interests of the child to do so.

  The Government has continued to consult throughout the negotiations. The President of the Family Division, Lord Justice Thorpe, senior practitioners and others including the well-respected NGO Reunite have been consulted over the principles behind the Presidency paper. They remain firmly of the view that the 1980 Hague Convention should not be replaced for EU cases. They also support the Presidency proposal.

  The Presidency has also made it clear that agreement on child abduction provisions will mean that the ratification of the 1996 Hague Convention on Parental Responsibility should proceed without any further delay. To this end the draft Council Decision authorising the Member States to sign the 1996 Hague Convention is also on the agenda of the Council of Ministers Meeting on 29th November.

  I would see the agreement of child abduction provisions in the Regulation on the lines of the Presidency proposal, coupled with the agreement to authorise Member States to sign the 1996 Convention, as a very important step forward in this area.

14 November 2002

COUNCIL OF THE EUROPEAN UNION

Brussels, 7 November 2002

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

1.  INTRODUCTION

  1.  In the light of the priorities defined at the European Council in Tampere in 1999, France presented on 3 July 2000 an initiative for abolishing the exequatur procedure for rights of access. At its meeting on 30 November 2000 the Council was of the view that the French initiative on rights of access should be pursued in parallel with the extension of the scope of the system to all children.

  2.  This was followed on 6 September 2001 by a Commission proposal for a Regulation extending the rules laid down in Council Regulation No. 1347/2000 to cover all judgments on parental responsibility. It also dealt with the issue of child abduction through provisions on jurisdiction and the return of the child. [49]

  3.  The Commission presented on 3 May 2002 a new proposal combining the French initiative on access rights, Council Regulation No. 1347/2000 and the Commission proposal of 6 September 2001. The new proposal extends the principle of mutual recognition to all decisions on parental responsibility, draws up a Community-specific solution for the return of abducted children and abolishes the exequatur procedure for access rights as well as for the return of the child.

  4.  The European Parliament has not yet delivered an Opinion on the proposal from the Commission. The Economic and Social Committee delivered its Opinion on 18 September 2002.

  5.  In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on the European Union and to the Treaty establishing the European Community, Ireland and the United Kingdom have given notice of their wish to take part in the adoption and application of the proposal.

  6.  In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on the European Union and to the Treaty establishing the European Community, Denmark does not participate in the adoption of the Regulation, and is therefore not bound by it or subject to its application.

  7.  During the second half of 2002 the Committee on Civil Law mattes (parental responsibility) closely examined matters relating to the return of the child. This work was carried out on the basis of the Commission proposal as well as on various alternative solutions submitted by delegations. During the discussions in the Civil Law Committee broad agreement emerged on a number of principles.

  8.  In particular, there is agreement among Member States that the Regulation should contain provisions which improve cooperation between central authorities on specific cases and on contact between the courts in different Member States, which are to decide on the return of a child. The details of these provisions have to be worked out in the Committee on Civil Law Matters.

  9.  It has become clear that the issue of child abduction is a key issue. Despite the substantial efforts made over several Presidencies, it has not been possible to reach a common solution on all the key questions concerning this issue. The Presidency therefore suggests the following with a view to all delegations reaching a common political view as part of an overall package on the main principles relating to cases where a child has been wrongfully removed or retained in another Member State.

  10.  The Presidency is of the opinion that, in order to reach a solution on this issue, five main questions have to be resolved. The Presidency suggests that Coreper consider the proposals suggested in item II, as set out in Annex I and illustrated by the example in Annex II.

II.  SOLUTIONS SUGGESTED BY THE PRESIDENCY

a)  Shift of jurisdiction to decide on custody in cases of child abduction

  11.  There is broad agreement that the Member State of habitual residence of the child (Member State of origin) should retain jurisdiction to decide on the issue of custody in cases where the child has been wrongfully removed or retained in another Member State.

  12.  These also seems to be a common understanding that, under certain conditions defined in the draft Regulation, the child's stay in the Member State to which it has been abducted should shift jurisdiction to this Member State.

  13.  Several delegations favour the solution stipulated in Article 7 of the 1996 Hague Convention[50] according to which jurisdiction remains in the Member State of origin (habitual residence) unless the holders of custody consent or acquiesce to a shift of jurisdiction or the child has resided in that Member State for a period of one year, under certain specific conditions.

  14.  A number of these delegations are, however, open to slightly amending the wording of Article 7 to take into account those few cases where the procedure for returning the child to the Member State of origin takes more than a year (see Article 13 of the 1980 Convention).

  15.  Other delegations, however, are strongly of the opinion that a person who abducts a child should never be able to take advantage of the abduction and benefit from a change of jurisdiction to the Member State where the child has been abducted. Accordingly, any shift in jurisdiction should be strictly limited to very few cases. [51]

  16.  The Presidency suggests that the Regulation should contain strict rules on the shift of jurisdiction so that the person who has abducted the child should not be able to obtain a shift in jurisdiction by delaying the case of the return of the child. Shifts in jurisdiction should be limited to the following four cases:

    —  agreement of the holders of custody;

    —  the parent from whom the child has been abducted does not lodge an application for the return of the child within one year;

    —  where the court of habitual residence delivers a judgment on custody that does not entail the return of the child

    —  where the court in the Member State to which the child has been abducted has issued an order of non-return and no custody case has been initiated in the Member States of habitual residence within a time limit of 3 months[52]

b)  Subsequent decision on custody[53]

  17.  A number of delegations have expressed the view that a subsequent decision on custody in the Member State of origin should be necessary in all cases where a court in the Member State to which the child has been abducted has issued an order that the child shall not be returned. These delegations propose that if the person who has abducted the child does not seize the courts in the country of origin within one month of an order for non-return being issued, the order for non-return shall cease to apply and the authorities in the Member State to which the child has been abducted shall immediately return the child.

  18.  Other delegations do not believe that a subsequent decision on custody should be necessary in all cases. In a number of cases the parents have joint custody and do not want this to change which means that no new decision is necessary. More importantly, according to these delegations, the benefits from creating a deterrent effect are by far outweighed by the risk of serious harm to the child inherent in a system where the child must—simply because the person who abducted the child neglects to seize the courts within one month—automatically be returned to the Member State of origin in circumstances where the welfare of the child is at serious risk according to the view taken by the courts in the Member State in which the child is present.

  19.  The Presidency suggests that a subsequent judgment on custody in the Member State of origin should not be necessary in all cases where a non-return order has been issued in the Member State of presence of the child. In fact, if neither parent seeks a new decision on custody, they should not be forced in those circumstances to institute court proceedings.

  20.  However, the Presidency underline that if the person from whom the child has been abducted does not accept a decision on non-return issued pursuant to the 1980 Hague Convention, that person should be entitled to seize the courts in the Member State of origin. In such a case, those courts will have the final say. To this end, the parent can be assisted by the central authorities.

  21.  The Presidency recognises that due weight has to be given to both the aim of creating a strong deterrent effect and to the aim of protecting the child, which has already suffered a child abduction. The overall compromise covering all five central outstanding issues seeks to strike the right balance between deterring child abductions and protecting the welfare of the child. The Presidency notes that, in particular, the very limited rules on shift of jurisdiction suggested by the Presidency serve to create a strong deterrent effect in addition to the rules in the 1980 Hague Convention. So does the abolition of exequatur procedure suggested below under point c).

c)  Abolition of the exequatur procedure

  22.  A number of delegations are in favour of abolishing the exequatur procedure for the subsequent decision on custody issued in the Member State of origin. These delegations argue that this is necessary in order to ensure the swift return of the child.

  23.  Other delegations take the view that the exequatur procedure should at this stage only be abolished for decisions on access rights. These delegations argue that abolishing the exequatur for such custody decisions will not be in accordance with the conclusions of the European Council in Tampere and the programme of measures adopted by the Council in November 2000.



  24.  The Presidency considers this to be an important element in the overall political compromise, which at the same time will ensure the effectiveness of the jurisdiction rules and the swift return of the child. The Presidency suggests that the exequatur for the subsequent decision on custody for the purpose of returning the child should be abolished.

  25.  In this regard it should also be noted that the conclusions of the European Council in Tampere and the Council programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters clearly state that the aim at a later stage is to abolish the exequatur for all the areas covered by the Brussels II Regulation and for family situations arising from relationships other than marriage. Accordingly, these conclusions should not prevent the Council from taking a more ambitious step where this is needed in order to obtain a viable solution to a key question such as child abduction.

d)  Time limits for decisions concerning the return of the child

  26.  Certain delegations suggested that the Regulation should provide for time limits for decisions concerning the return of the child. Such a decision should be issued within a short period of time. Other delegations do not find it necessary to include such time limits in the Regulation.

  27.  The Presidency suggests that, in the context of this package, the Regulation should contain a provision according to which the court in a Member State to which an application for return of a child is made should act expeditiously in proceedings on the application and the court should as far as possible make its order no later than six weeks after it is seized of the application.

e)  1980 Hague Convention or a Community regime for the return of the child

  28.  A number of delegations have opposed introducing Community-specific rules on child abduction. They are committed to the continuous application of the 1980 Hague Convention also for cases of child abduction within the Community.

  29.  These delegations are in general satisfied with the rules of the 1980 Hague Convention and are worried that Community-specific rules that interfere with the working of these rules could jeopardize the functioning of these rules and thereby ultimately lead to less favourable protection from child abduction than provided by the 1980 Hague Convention today—eg because of lengthy proceedings which might result from a request for a preliminary ruling from the European Court of Justice.

  30.  Other delegations have emphasised the need for solutions that go beyond those in existing international conventions and urge that Community rules be developed that are better tailored to a common judicial area based on the principle of mutual recognition.

  31.  Moreover, a number of these delegations are of the view that such rules, for reasons of clarity and practicability, should be autonomous thus replacing the 1980 Hague Convention within the Community. The relevant provisions of the 1980 Hague Convention could then be incorporated into the Regulation.

  32.  The Presidency suggests that the Community rules on child abduction should focus on those cases where the 1980 Hague Convention does not lead to the return of the child. The Presidency therefore proposes that the 1980 Hague Convention should continue to apply in cases of child abduction between Member States without actually incorporating the rules of the Convention into Community law.

  33.  However, the Regulation should contain rules on child abduction that complement the 1980 Hague Convention in order to ensure that, in those cases where an order not to return the child is issued in the Member State to which the child has been abducted, the courts in the Member State of origin have the final say concerning the return of the child. Community rules will also facilitate the swift return of the child in those cases where the Member State of origin issues a judgment on custody entailing the return of the child.

  34.  The Presidency is also of the opinion that the well functioning of the future Regulation should be evaluated within a short period of time. The Commission should therefore be invited to present a report on the functioning of the Regulation five years after it entry into force.

III.  CONCLUSIONS

  35.  Coreper is invited to consider whether it can accept the solutions outlined above with a view to reaching an agreement on these issues bearing in mind that this file, as well as that relating to the signature of the 1996 Hague Convention, is included on the agenda of the JHA Council at the end of November

Annex 1

THE PRESIDENCY'S PROPOSAL SET OUT IN ARTICLES

Chapter II

Jurisdiction

ARTICLE 11BIS

(EX ARTICLE 21)

JURISDICTION IN CASES OF CHILD ABDUCTION

  In case of wrongful removal or retention of the child, the courts of the Member State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another Member State and:

  (a)  each person, [institution or other body] [54]having rights of custody has acquiesced in the removal or retention;

  or

  (b)  the child has resided in that other Member State for a period of at least one year after the person, [institution or other body] having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and any of the following conditions are fulfilled:

    (i)  within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;

    (ii)  a request for return lodged by the holder of custody has been withdrawn and no new request has been lodged within the time limit defined in paragraph (i);

    (iii)  within three months after the person whose rights of custody have been breached by the removal or retention has been notified of the order on non-return mentioned in article 11ter (4), no custody proceedings have been initiated before the courts in the Member State in which the child was habitually resident immediately before the removal or retention;

    (iv)  a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State referred to in paragraph (iii);

ARTICLE 11 TER

(EX ARTICLE 22)

RETURN OF THE CHILD

  1.  When a person [institution or other body] having rights of custody apply to the competent authorities in a Member State to deliver an order on the basis of the 1980 Hague Convention, in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State of the child's habitual residence immediately prior to the removal or retention, paragraphs 2 to 5 apply. [55]

  2.  When applying Articles 12 and 13 of the 1980 Hague Convention, the court of a Member State shall ensure that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity

  3.  A Court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application.

  Without prejudice to the paragraph above, the Court shall, as far as possible, make its order no later than six weeks after it is seized of the application.

  4.  A court cannot refuse to return a child on the basis of article 13 b of the 1980 Hague Convention if it is established that adequate arrangements are provided to secure the protection of the child after its return.

  5.  Notwithstanding the making of a non-return order pursuant to article 13 of the 1980 Hague Convention, a subsequent judgment which requires the return of the child issued by a court that has jurisdiction under this Regulation shall be enforceable in accordance with section 3 of chapter III below in order to secure the return of the child.

Chapter III on child abduction is deleted.

Chapter III (ex Chapter IV)

Recognition and enforcement

Section 3

  Enforceability of certain judgments concerning rights of access and of certain judgments which require the return of the child

Article 45

SCOPE

  1.  This section shall apply to:

    (a)  [The wording of this paragraph is not part of the compromise]

    (b)  the return of a child entailed by a judgment which require the return of the child issued by a court mentioned in Article 11ter (4).

  2.  The provisions of this Section shall not prevent a holder of parental responsibility from seeking recognition and enforcement in accordance with the provisions in Sections 1 and 2 of this Chapter.

Article 46

  [The wording of article 46 is not part of the proposed compromise]

Article 47

RETURN OF THE CHILD

  1.  The return of a child referred to in Article 45 (1) (b) entailed by an enforceable judgment given in a Member State shall be recognized and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment fulfils the procedural requirement and has been certified in the Member State of origin in accordance with paragraph 2 of this Article.

  If national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11ter(4), the judge may declare that the judgment shall be so enforceable.

  2.  The judge that delivered the judgment referred to in Article 45 (1) (b) shall issue the certificate referred to in paragraph 1 only if:

    (a)  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,

    (b)  the parties were given an opportunity to be heard, and

    (c )  the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to article 13 of the 1980 Hague Convention.

  In the event that the court or any other authority will take measures to ensure the protection of the child after its return to the State of habitual residence, the certificate shall contain details of such measures.

  The court of origin shall issue that certificate at its own initiative and using the standard form in Annex VII (certificate concerning return).

  The certificate shall be completed in the language of the judgment. [56]

Annex II

Example illustrating how the Presidency's compromise proposal regarding child abduction cases is to work in practice

  The parents Bj½rn and Heidi live in Sweden with their son August, who is 2 years old. They have joint custody over August, and this means that neither parent can remove August from Sweden without the consent of the other.

  Following a family quarrel, Heidi travels to Austria with August without the consent of Bj½rn. Through the central authorities of Sweden and Austria, Bjo½rn asks the court in Vienna for the return of August. Heidi objects to August being returned to Sweden claiming that he has been abused by Bjo½rn.

  In accordance with the Presidency proposal, the Hague Convention will apply in this case. In accordance with this Convention and as proposed in Article 11ter(3) of the compromise proposal the court in Vienna has to act expeditiously in issuing a decision on return, and the court should as far as possible issue a decision within six weeks.

  The proposed rules on jurisdiction in Article 11bis will ensure that Heidi cannot obtain a shift in jurisdiction by delaying the procedure before the court in Vienna.

  According to Article 13b of the 1980 Hague Convention, the court in Vienna can decide not to return August if the court finds that there is a grave risk that the return would expose him to physical or psychological harm.

  In this example, the court in Vienna finds that there is evidence that August has been abused by Bjo½rn and accordingly the court issues a decision of non-return. In this situation the Presidency proposal leaves it up to the parents to decide whether they want to obtain a subsequent decision on custody.

  If Bjo½rn does not accept the decision on non-return, he can institute custody proceedings before the court in Stockholm and this court will have the final say on the matter of the return of August. If Bjo½rn believes or is advised by his lawyers that a subsequent decision by the Swedish courts will not benefit him, or if he can reach an amicable agreement with Heidi, the parents are not forced to institute court proceedings. Heidi will of cause also have the option of instituting proceedings before the court in Stockholm if, for example, she wishes to obtain sole custody.

  The proposed jurisdiction rules ensure that Bjo½rn will always have the opportunity of obtaining a subsequent decision on custody from the court in Sweden, even if the procedure on return before the court in Vienna is exceptionally lengthy. If this is one of those rare cases, where the return procedure takes a year or more before resulting in a decision on non-return, the court in Stockholm still retains jurisdiction, but Bjo½rn will have to institute proceedings within 3 months of being notified of the decision on non-return. If he does not institute proceedings within 3 months, and August has been habitually resident in Austria for a year and is settled in his new environment, jurisdiction will shift to the courts in Austria.

  In this example Bjo½rn decides to institute proceedings before the court in Stockholm to obtain the return of August. The court in Stockholm then takes into account the reasons given by the court in Vienna for the decision on non-return and the evidence underlying this decision. If the court delivers a judgment that does not require the return of August, August can remain in Austria, and jurisdiction will shift to the Austrian courts. If, on the other hand, the court in Stockholm finds that August will not be at risk if returned to Bjo½rn and delivers a judgment requiring his return (eg by awarding sole custody to Bjo½rn), this judgment will be enforceable in Austria notwithstanding the order on non-return issued by the court in Vienna and without an exequator procedure. That the judgment is enforceable in Austria without an exequator procedure means that Bjo½rn does not have to apply for a declaration of enforceability before the decision can be enforced. It also means that the judgment has to be treated in the same way as a judgment issued in Austria.

PROPOSAL FOR A COUNCIL REGULATION ON MUTUAL RECOGNITION OF DECISIONS ON PARENTAL RESPONSIBILITY

Supplementary Explanatory Memorandum

  Submitted by the Lord Chancellor's Department and the Scottish Executive on 14 November 2002.

Subject Matter

  The purpose of this Supplementary Memorandum is to report the progress that has been made in negotiations and in particular to refer to the Committees a recent proposal by the Presidency for revision of the provisions relating to child abduction in the Regulation.

  Reference is made to EM No. 8395/02 submitted by the Lord Chancellor's Department and the Scottish Executive on 10 June 2002.

Scrutiny History

  The Select Committees of both Houses of Parliament have retained the proposal under scrutiny. Concern has been raised by both Committees on the provisions on child abduction in the Commission proposal. The UK Government has been urged by both Committees to remain firm on the policy approach outlined in the original Explanatory Memorandum and resist the replacement of the 1980 Hague Convention on Child Abduction with an intra-Community scheme for EU cases.

Ministerial Responsibility

  See EM No. 8395/02

Legal and Procedural issues
1.  Legal Basis
See EM No. 8395/02
2.  European Parliamentary Procedure
See EM No. 8395/02
3.  Voting Procedure
See EM No. 8395/02
4.  Impact on United Kingdom Law
See EM No. 8395/02


  The impact of the Presidency's proposal on the United Kingdom law systems would be substantially less than would occur under the provisions contained in the Commission's proposal. Instead of replacing the 1980 Hague Convention on International Child Abduction as regards intra-EC Cross-border child abduction cases, the effect of the proposal would be to create complementary arrangements within the EC for such cases. The resultant EC provisions would be limited to (a) binding courts of member states to apply certain provisions of the Hague Convention in accordance with certain generally accepted elements of Hague best practice to which courts in the UK already adhere; and (b) providing an additional means of securing return of an abducted child, supplementary to the Convention and operative only where proceedings under the Convention have concluded and the outcome has been a non-return order.

Policy Implications

  As is was made clear in EM No. 8395/02 the Government was against the replacement of the 1980 Convention by an intra-Community scheme for EU cases, and took the view that any provisions in this area would have to be complementary to the 1980 Convention and additionally not depart substantially from the 1996 Hague Convention on Parental Responsibility. The Government considers that the Presidency proposal will achieve these aims.

The Presidency's proposal for provisions on child abduction (JUSTCIV 175)

  The Danish Presidency is under considerable pressure to secure, at the Justice and Home Affairs Ministerial Council Meeting on 29 November, a resolution of the continuing impasse regarding child abduction provisions. Member States have, so far, remained evenly divided between those which seek the replacement of the 1980 Hague Convention for EU cases and those which wish to see it retained. However the Presidency is confident that it can reach agreement based on the proposal in JUSTCIV 175. [It should be noted that this proposal deals only with provisions on child abduction, and that the remainder of the Commission's proposal—which is generally to be welcomed, as explained in the original Explanatory Memorandum—is still to be considered in negotiations at working group level.]

  The Presidency proposal is based on the premise that the Hague Convention should be retained for intra-Community cases but that it should be complemented by additional provisions where the proceedings under the Convention have concluded with the making of a non-return order under Article 13. Where the "left-behind parent" (to use the most common case) does not accept the decision not to return the child pursuant to Article 13, he or she is to be entitled to apply, within three months, to the courts of the Member State of origin (that is, the State in which the child was habitually resident immediately before the wrongful removal or retention) for a determination of custody. It is proposed, to put it another way, that in practical terms (although not as a matter of operation of the Hague Convention) that the courts in the State of origin would be entitled to have the final say.

  This is based on the argument—which underlies the approach of both the 1980 and 1996 Hague Conventions—that the court of the habitual residence of the child will usually be in the better position to decide on what is in the best interests of the child; and additionally that the court of origin would be bound in doing so to take into account the concerns of the court which made the non-return order.

  In the event that the court of origin, having taken into account the concerns of the court which made a non-return order, makes an order on the merits of custody which requires the return of the child to the custody of the left-behind parent, and as long as certain procedural safeguards have been observed and this has been certified in an accompanying certificate from that court, then the subsequent custody order will be entitled to enforcement in any other EC State where the child is present. In cases where an appeal is lodged in the court of origin against the subsequent custody order, there will be a discretion, in member States under whose law judgments are not necessarily enforceable when subject to appeal, for the judge to declare the order enforceable for the purpose of returning the child notwithstanding the appeal.

  The document is divided into principles and text, followed by examples.


PRINCIPLES

a)  Shift of jurisdiction to decide on custody in cases of child abduction

  The Presidency's proposal is based on Article 7 of the 1996 Hague Convention (jurisdiction to remain with court of origin and to shift only in restricted circumstances), with the addition of a provision necessitated by the "subsequent custody order" process outlined above, allowing for a shift of jurisdiction where no application for a subsequent custody order (in the court of origin) has been made within 3 months of the making of a non-return order under Article 13 of the 1980 Convention.

b)  Subsequent decision on custody

  Here, as explained above, it is proposed that a subsequent custody order in the court of Origin will be enforceable (with accelerated procedure) notwithstanding that an application under the Hague Convention resulted in a non-return order under Article 13 of that Convention. This reflects the thinking behind the 1980 Convention, which states in Article 19 that a decision concerning the return of a child is not a determination on the merits of any custody issue. It is also, although it does not impact on the Convention as such, consistent with the intention of Article 36 of the Convention, which makes it clear that nothing prevents two or more Contracting States (and all EU member States are Hague Contracting States, as are all the "Laeken 10" candidates for accession) "in order to limit the restrictions to which the return of the child is subject, from agreeing among themselves to derogate from any provisions of this Convention which may imply such a restriction".

c)  Abolition of Exequatur

  This is in accordance with the conclusions of the European Council in Tampere for the progressive implementation of the principle of mutual recognition of decisions in civil matters. This provision will not have any great effect upon the recognition of European Judgements in the United Kingdom. Unlike most continental systems here there is no additional procedure required to recognise a judgment before it is enforced ("exequatur"). Instead, the only requirement is that a foreign judgment is registered.

d)  Time limits for decisions concerning the return of the child

  This is in accordance with existing provisions (Article 11) of the 1980 Convention.

e)  1980 Hague Convention or an autonomous Community regime for the return of the child

  The Presidency proposes that the 1980 Convention should continue to apply in cases of child abduction between member States and that any EU provisions in this area should be complementary to the Convention.

THE TEXT

Article 11 bis: Jurisdiction in cases of child abduction

  The terms "wrongful removal or retention" follow the terminology in both the 1980 and 1996 Hague Conventions (and will be defined in terms identical to those Conventions in a definition article not forming part of this text). This jurisdictional provision is based upon Article 7 of the 1996 Hague Convention.

Article 11 ter: Return of the Child

  Paragraph 1 is a "paving" provision to show that the 1980 Hague Convention will apply to EU cases with the addition of a EU provision applicable where the Convention has been exhausted and the outcome was a non-return order.

  Paragraph 2 requires member States in applying certain provisions of the Hague Convention to ensure that the child in question, if of sufficient age and maturity, is given the opportunity to make his or her views known. This reflects existing "best practice" in the operation of the Convention, already adhered to by courts in the UK (and effectively required by the UN Convention on the Rights of the Child and the Children Act 1989).

  Paragraph 3 requires a court of a member State seised of an application for return under the Hague Convention to act expeditiously, and in any event to made best efforts to reach its decision within six weeks. This also reflects Hague best practice (and is consistent with Article 11 of the Hague Convention) and the existing approach of courts in the UK.

  Paragraph 4 has the effect of requiring a court of a Member State which considers there to be prima facie grounds for declining to order return under Article 13 nevertheless to order return if it is also satisfied that adequate arrangements are provided to ensure that the child is protected after return. Again, this reflects Hague best practice (indeed it was suggested by the Permanent Bureau), and is consistent with the existing approach of courts in the UK.

  Paragraph 5 contains the "subsequent custody order" provision. It is in its terms operative only when a non-return order has been made pursuant to Article 13 of the Hague Convention, which is to say that it is operative only once that Convention is exhausted and does not apply. The conditions under which any such subsequent order will be enforceable are contained in Article 47 of the Presidency proposal, explained below.

Article 45: recognition and enforcement—scope

  This simply makes it clear that the accelerated enforcement procedure of Article 47 will apply to a "subsequent custody order" which meet the requirements of Article 47.

Article 47: return of the child

  This Article provides for the abolition of the exequatur procedure, found in continental jurisdictions, and for the automatic recognition of certain orders that comply with (1) certain procedural measures, for example, opportunity for the child and parties to be heard, and (2) the reasons for and evidence underlying the decision not to order return by the other court which considered the Hague Convention have been taken into account (which will require the court of origin to address the availability and adequacy of the protective measures at its disposal). This will have to be certified by the court of origin if the order is to be enforceable, and the detail of how this is to be done remains to be worked through at working group level: it is likely to involve acceptance that the court of origin may not go behind the findings of fact made by the other court in reaching its decision not to return the child, or at least may only do so in restricted circumstances.

FINANCIAL IMPLICATIONS

  See EM No. 8395/02.

Patricia Scotland, Baroness Scotland of Asthal QC Parliamentary Secretary Lord Chancellor's Department

Letter from the Chairman to The Rt Hon Baroness Scotland of Asthal QC, Parliamentary Secretary, Lord Chancellor's Department

  Thank you for your letter of 14 November 2002 and for coming to meet Sub-Committee E (Law and Institutions) yesterday. The Committee is most grateful for the information and explanations given in your letter and in your replies to the Committee's questions at the meeting. The document has been cleared from scrutiny.

  A copy of the transcript of the meeting will be sent to you in the next few days and the corrected transcript will be published with the earlier correspondence in due course.

26 November 2002


49   Council Regulation No. 1347/2000 of 29 May 2000 contains rules on jurisdiction, recognition and enforcement of judgments on parental responsibility. Its scope is, however, limited to judgments on parental responsibility that concern children of both spouses and that are delivered in connection with proceedings for divorce, separation or marriage annulment. Moreover, a special procedure to obtain a declaration of enforceability (an exequatur procedure) is still required before a judgment delivered in one Member State can be enforced in another. Back

50   The Hague 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) Back

51   Where the holders of custody agree, where the parent from whom the child has been abducted does not request the return of the child within one year or where the country of origin issues a judgment on custody that does not entail the return of the child Back

52   This indent follows from the proposal under b) with regard to the need for a subsequent decision on custody. Back

53   For the purpose of this note, a decision on custody must be understood as a decision that can require the return of a child. Back

54   Whether or not the words "institution or other body", which are mentioned in the Hague 1996 Convention, are to be included, will depend on the scope of the Regulation. This is not a part of the compromise proposal. Back

55   The intention behind this paragraph is that the 1980 Hague Convention remains applicable in cases of child abduction between Member States. The wording of this paragraph may have to be adjusted in the light of future work in the Committee on Civil Law Matters. Back

56   The details concerning the contents of the certificate needs to be worked out in the Civil Law Committee Back


 
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