MUTUAL RECOGNITION OF DECISIONS ON PARENTAL
Draft Council Regulation on jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility.
||Article 61(c) EC; consultation; unanimity
|Deposited in Parliament:
||27 September 2001
||Lord Chancellor's Department; Scottish Executive Justice Department
|Basis of consideration:
||Minister's letter of 30 January 2002
|Previous Committee Report:
|To be discussed in Council:
||No date set|
||Legally and politically important
2.1 On 5 December 2001 we considered a draft Council
Regulation which would 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, but otherwise
it would apply to all civil proceedings relating to the care and
protection of children, including those brought by or against
2.2 We noted that the draft 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)
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.
2.3 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).
2.4 We noted a number of other detailed differences between
the proposed Regulation and the 1980 and 1996 Hague Conventions,
and we questioned what useful purpose was being served by the
adoption of yet further variations from international standards
in this area. Our other principal concern was over the question
of external competence. The Ministers had drawn attention to the
effect the proposal might have on the freedom of Member States
to sign and ratify the 1996 Hague Convention. We therefore asked
the Ministers if a decision had been taken on whether the UK would
opt-in to this measure, and for their assessment of the scope
for ensuring that adoption of the present proposal could be linked
to adoption of a proposal to authorise Member States to sign and
ratify the 1996 Hague Convention, and thereby to overcome any
problem caused by the conferring of external competence on the
Community in this area.
The Minister's letter
2.5 In his letter of 30 January 2002, the Parliamentary
Secretary at the Lord Chancellor's Department (Mr Michael Wills)
explains that in December 2001 the United Kingdom notified the
Presidency of its intention to participate in this proposal.
2.6 The Minister provided a copy of the Commission proposal
for a Council Decision authorising the Member States to sign the
1996 Hague Convention, and this has also been formally deposited.
The Minister agreed that it was undesirable for there to be variations
from existing standards in international agreements and stated
that the UK would continue to argue in negotiations that any variations
would have to be justified and that the aim should be for the
text of the proposal to follow and be aligned with the provisions
of the Hague Conventions of 1980 and 1996 Conventions.
2.7 The Minister also commented that the UK would continue
to seek ratification of the 1996 Hague Convention by Member States
and the Community without further delay and to argue strongly
that ratification should not be delayed to await adoption of the
Commission's proposal for a Council Regulation on parental responsibility.
2.8 We are grateful to the Ministers for their explanation
of the Government's approach to this proposal, and we support
their desire to align it as closely as possible with the provisions
of the 1980 and 1996 Hague Conventions. We also agree that the
present proposal should not be used as a device to delay ratification
of the 1996 Hague Convention by the Member States.
2.9 We shall hold the document under scrutiny, pending
the deposit of a revised text.
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
See paragraph 10 of this Report Back