4. JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF JUDGMENTS
IN MATRIMONIAL MATTERS AND IN MATTERS OF PARENTAL RESPONSIBILITY
| (a)
(22652)
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COM(01) 505
(b)
(23473)
8395/02
COM(02) 222
(c)
(23975)
—
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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 of parental responsibility repealing Regulation (EC) No. 1347/2000 and amending Regulation (EC) No. 44/2001 in matters relating to maintenance.
Draft 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.
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| Legal base: | Article 61(c) EC; consultation; unanimity
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| Department: | Lord Chancellor's Department; Scottish Executive Justice Department
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| Basis of consideration: |
(a) Minister's letter of 30 January 2002
(b) EM of 10 June 2002 and Minister's letter of 14 November 2002
(c) EM and Minister's letter of 14 November 2002
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| Previous Committee Report:
| (a) HC 152-ix (2001-02), paragraph 4 (5 December 2001), HC 152-xxi (2001-02), paragraph 2 (13 March 2002)
(a) and (b) HC 152-xxxvi (2001-02), paragraph 6 (10 July 2002)
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| To be discussed in Council:
| Justice and Home Affairs Council 28-29 November 2002
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| Committee's assessment: |
Legally and politically important |
| Committee's decision: |
(a) Cleared
(b) and (c) For debate in European Standing Committee B
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Background
4.1
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), (often referred to as the Brussels
II Regulation), which came into force on 1 March 2001. It is
limited to judgments on the parental responsibilities for the
children of both spouses given on the occasion of matrimonial
proceedings.
4.2
The Commission presented a proposal (document(a)) for the extension
of that Regulation, but this has now been withdrawn by the Commission
and replaced by a revised proposal (document (b)), which brought
together in the one instrument the provisions of Regulation No.
1347/2000, and those of the earlier Commission proposal. This
incorporated the provisions of Regulation No. 1347/2000 on divorce
and matrimonial proceedings and contained new provisions on parental
responsibility (e.g. care and custody of children). Maintenance
obligations were to continue to fall within Council Regulation
No. 44/2001.
4.3
We reviewed that proposal in detail on 10 July. We noted that
it was 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).
4.4
We noted that jurisdiction in matters of parental responsibility
was to be based on the habitual residence of the child at the
time the court is seised and that this corresponded to the rule
in the 1980 and 1996 Hague Conventions[13].
However, we were concerned that the draft Regulation departed
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.
We were also concerned that the provisions on child abduction
diverged from those of the 1980 Hague Convention. We agreed with
the Ministers in their desire to secure a Regulation which departed
as little as possible from the Hague Conventions, but welcomed
the principle of consolidating into one instrument the provisions
of the 'Brussels II' Regulation and of the Commission proposal
on parental responsibilities.
The Minister's letter
4.5
In her letter of 14 November the Parliamentary Secretary at the
Lord Chancellor's Department (Baroness Scotland QC) informs us
that the Danish Presidency has been seeking to resolve an impasse
between the Member States on the issue of child abduction and
that it has produced a text (document (c)) which makes significant
changes to the Commission proposal and meets the concerns expressed
by the UK. The Presidency proposal is based on the principle of
retaining the 1980 Hague Convention in EU cases, with only limited
EU provisions which are intended as complementary to that Convention
and which will not displace its operation. The Minister points
out that the rules on jurisdiction are based on Article 7 of the
1996 Hague Convention and stay much closer to that Convention
than some Member States had been arguing for. The Minister adds
that the Danish Presidency will be seeking to obtain agreement
on this text at the JHA Council on 29 November 2002.
4.6
The Minister comments that the Presidency proposals provide worthwhile
additional measures which will make the 1980 Hague Convention
'more robust'. The Minister points out that where a court refuses
to return an abducted child under the provisions of Article 13[14],
there is no internationally agreed procedure whereby a subsequent
decision on custody can be enforced. The Minister goes on to explain
that such enforcement is a matter of national law, 'which tends
to mean that it will be very difficult to enforce such an order'
and that this is so despite the fact that Article 19 of the Hague
Convention makes it clear that a decision under Article 13 not
to return a child is not to be taken as a decision on the merits
of any custody issue.
4.7
The Minister also describes the consultation which has been carried
out on these proposals in Scotland and in Northern Ireland. The
Minister explains that Northern Ireland, like Scotland, is represented
on the International Committee chaired by the President of the
Family Division, and that the Scottish Executive Justice Department
has established a panel of judges and practitioners experienced
in international and domestic family law to assist it in advising
Ministers. The Minister adds that consultees (including the NGO
Reunite as well as the President of the Family Division) remain
firmly of the view that the 1980 Hague Convention should not be
replaced for EU cases and that they support the Presidency proposals.
The Presidency proposal
4.8
The Presidency proposal (document (c)) concentrates on the key
issue of child abduction. It is based on the principle, which
underlies 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. It is also based on the premise that the 1980 Hague
Convention should continue to apply to intra-Community cases,
but that there should be complementary provisions where proceedings
under the Convention have reached an end with the making of an
order under Article 13 of that Convention that an abducted child
should not be returned.
4.9
In such cases, the parent who has lost custody of the child (and
who does not agree with the decision not to return the child)
is to be given the opportunity to apply to the courts of the Member
State of origin of the child (i.e. the state in which the child
was habitually resident immediately before the wrongful removal
or detention) for a determination of the issue of custody. The
application must be made within three months, but it will have
the result, in the Presidency's words, of giving 'the final say'
to the courts of the place of habitual residence of the child[15].
4.10
Where the courts of the place of habitual residence do make an
order which requires the return of the child to the parent who
has lost custody, that order is to be recognised and enforced
in any Member State where the child is present. Where an appeal
is made against such an order, it will be a matter for the discretion
of other courts to declare that the order is enforceable, notwithstanding
the appeal, and to order the return of the child.
4.11
The Presidency proposal takes the form of a new Article 11 bis
and ter, a new Article 45 and a new Article 47. These
would be inserted in the body of the draft Regulation (document
(b)) which would consolidate the 'Brussels II' Regulation and
the provisions on parental responsibilities[16].
4.12
Article 11 bis provides for jurisdiction in the case of
child abduction, and is based on Article 7 of the 1996 Hague Convention.
It provides that the courts of the child's habitual residence
are to retain their jurisdiction until the child has acquired
a habitual residence in another Member State. The 'shift' in jurisdiction
to the courts of the new habitual residence is to be made subject
to strict conditions, so as to ensure that the person who has
abducted the child does not obtain an advantage in his or her
favour merely by delaying proceedings on the return of the child.
The 'shift' in jurisdiction is therefore limited to four cases.
The first is where the person with custody agrees or acquiesces.
The next three cases arise where the child has resided in the
state to which he has been removed for a period of at least one
year after the person with custody became aware, or should have
become aware, of his whereabouts. In such cases, the courts of
the new habitual residence will have jurisdiction only if no request
for return is made or if it is withdrawn, or if no custody proceedings
are brought within three months under Article 11 ter, or
if in such proceedings the court gives a judgment on custody which
does not entail the return of the child.
4.13
Article 11 ter provides (in Article 11ter(1)) that
the provisions of the 1980 Hague Convention are to continue to
apply to intra-Community cases where an order is sought to obtain
the return of a child who has been wrongfully removed. Article
11 ter (2) requires Member States, when applying Articles
12 and 13 of the 1980 Hague Convention, to ensure that the child
in question, if of sufficient age and maturity, is given the opportunity
to be heard[17] . Article
11 ter (3) requires a court to act expeditiously and as
far as possible to make its order within six weeks. Article 11
ter (4) provides that a court may not refuse to return
a child under Article 13b of the 1980 Hague Convention (i.e. on
grounds of grave risk of physical or psychological harm) if it
is established that adequate arrangements are provided to secure
the protection of the child after its return. Article 11 ter
(5) deals with cases where a court, applying Article 13 of
the Hague Convention, decides against returning the abducted child
to his habitual residence. In such a case, a subsequent judgment
requiring a child to be returned and made by a court having jurisdiction
under the Regulation (i.e. in a case where jurisdiction has not
'shifted') is to be enforceable in accordance with Articles 45
to 47 of the Regulation.
4.14
Articles 45 to 47 provide for the recognition and enforcement
of subsequent judgments requiring the return of the child, notwithstanding
the making of an order under Article 13 of the 1980 Hague Convention.
Such judgments are to be recognised and enforced in other Member
States, provided that the child and the parties have been given
the opportunity to be heard, and provided that the court has taken
into account the reasons and evidence for the decision by the
other court under Article 13 not to return the child.
The Government's view
4.15
In her Explanatory Memorandum of 14 November, the Parliamentary
Secretary at the Lord Chancellor's Department (Baroness Scotland
QC) explains that the impact of the Presidency's proposals would
be substantially less than under the provisions contained in the
Commission's proposal (document (b)). Instead of replacing the
1980 Hague Convention for intra-EU cross-border child abduction
cases, the proposal would create complementary arrangements within
the EU for such cases. The Minister explains that the resulting
provisions would be limited to obliging courts of Member States
to apply certain provisions of the Hague Convention in accordance
with generally accepted best practice to which the UK courts already
adhere. The proposals would also provide an additional means of
securing the return of an abducted child, which would be supplementary
to the Hague Convention and which would operate only where proceedings
under the Convention have come to an end with an order refusing
the return of a child.
4.16
The Minister recalls that 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 Hague Convention and not depart
substantially from the 1996 Hague Convention. The Minister states
that the Government considers that the Presidency proposal will
achieve these aims.
Conclusion
4.17
We thank the Minister for her helpful letter and Explanatory
Memorandum. We agree with the Minister that the Presidency proposals
secure the key objectives of the UK in relation to child abduction,
and we note that they meet the concerns which we expressed in
relation to the rights of the child.
4.18
We also agree with the Minister that the additional provisions
relating to decisions under Article 13 of the Hague Convention
refusing the return of the child are worthwhile and will improve
the operation of that Convention.
4.19
We note that the Presidency proposals are supported by a wide
range of consultees, including the judiciary, family law practitioners
and Reunite. Nevertheless, we consider that the House ought to
have the opportunity to debate the proposals before they are adopted.
We therefore recommend documents (b) and (c) for debate in European
Standing Committee B. We clear document (a) on the basis that
it has been withdrawn by the Commission.
13 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
14 Article
13 of the 1980 Hague Convention allows the competent authority
of the state where the child is not to return that child if the
person with custody rights was not exercising those rights at
the time of removal or had consented to, or acquiesced in, the
removal, or where there is a grave risk that the child would be
exposed to physical or psychological harm, or where the child
objects to being returned. Back
15 Article
19 of the 1980 Hague Convention makes it clear that a decision
under Article 13 refusing return is not to be taken as a determination
of the merits of any custody issue. Back
16 The
Presidency proposal is concerned only with child abduction. The
remainder of document (b) is largely a restatement of the Brussels
II Regulation and has not given rise to controversy. Back
17 This
corresponds to the UN Convention on the Rights of the Child and
to the provisions of the Children Act 1989. Back
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