5. JURISDICTION AND THE RECOGNITION AND
ENFORCEMENT OF JUDGMENTS IN MATRIMONIAL MATTERS AND IN MATTERS
OF PARENTAL RESPONSIBILITY
(a)
(23473)
8395/02
COM(02) 222
(b)
(23975)
—
(c)
(24169)
—
—
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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.
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: | EM of 9 January 2003
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| Previous Committee Report: | (a) HC 152-xxxvi (2001-02), paragraph 6 (10 July 2002)
(b) HC 63-i (2002-03), paragraph 4 (20 November 2002), HC 63-ii (2002-03), paragraph 2 (27 November 2002)
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| Discussed in Council: | Justice and Home Affairs Council 29 November 2002
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| Committee's assessment: | Legally and politically important
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| Committee's decision: | For debate in European Standing Committee B (decision reported on documents (a) and (b) on 20 November 2002)
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Background
5.1 Jurisdiction and the recognition and enforcement
of judgments in matrimonial matters 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. The Regulation is limited to
judgments on the parental responsibilities for the children of
both spouses given on the occasion of matrimonial proceedings.
5.2 We reviewed an earlier proposal for the extension
of that Regulation on 10 July, and considered a revised proposal
(document (a)) on 20 November. This brought together in the one
instrument the provisions of Regulation No. 1347/2000 and the
earlier Commission proposal on divorce and matrimonial proceedings
and contained new provisions on the custody of children. We also
considered a proposal from the Danish Presidency (document (b))
which sought to resolve an impasse between the Member States
on the issue of child abduction. We noted that the Presidency
proposal was based on the principle of retaining the 1980 Hague
Convention[24] in EU
cases, with only limited EU provisions which were intended as
complementary to that Convention and which would not displace
its operation.
5.3 We agreed with the Minister that document (b) secured
the key objectives of the UK in relation to child abduction. Because
of the general importance of the subject of child abduction, we
considered that the House should have the opportunity to debate
the proposals, and we recommended a debate in Standing Committee
B. In the event, there was not sufficient time to have this matter
debated before the Justice and Home Affairs Council on 29 November.
In accordance with paragraph 3(b) of the scrutiny reserve resolution,
we indicated to the Minister that agreement need not be withheld
pending consideration of the documents by European Standing Committee
B.
The new document
5.4 Document (c) reflects the outcome of the Justice
and Home Affairs Council on 29 November, when agreement was reached
on a series of proposals as set out in document (b), but with
a number of minor amendments. The principal amendments are to
the text of Article 11 ter. This Article contains provisions
which are complementary to those of the 1980 Hague Convention
and which cover the case where proceedings under the Convention
have concluded with the making of an order refusing the return
of a child under Article 13 of that Convention.
5.5 Article 11 ter (3) required the Member State
to which the child has been wrongfully removed to reach a decision
within six weeks on whether or not to return the child. The revised
version qualifies this in two ways. First, the Member State is
required to use the most expeditious procedures available in national
law. Secondly, the court must give its order within six weeks,
unless exceptional circumstances make this impossible.
5.6 Article 11 ter (5) to (7) contain additional
provisions. Article 11 ter (5) provides that a court may
not refuse to return a child unless the person who requested the
return of the child has been given an opportunity to be heard.
Article 11 ter (6) requires the court issuing a non-return
order under Article 13 immediately to inform the court or competent
authority in the Member State of origin of the child, and to supply
a transcript of the hearing before the court within one month.
Article 11 ter (7) requires the court in the Member State
of origin to inform the parties and to invite them to make submissions
to that court within three months, in order for that court to
examine the question of custody of the child. If no submissions
are made, the court is to close the case.
The Government's view
5.7 In her Explanatory Memorandum of 9 January 2003,
the Parliamentary Secretary at the Lord Chancellor's Department
(Baroness Scotland of Asthal QC) explains that after further protracted
and intense negotiations the Danish Presidency secured agreement
to provisions relating to child abduction along the lines of those
set out in document (b), but with the limited amendments which
proved necessary to secure unanimous agreement.
5.8 The Minister explains that the agreement is based
on the premise that the 1980 Hague Convention should be retained
for intra-Community cases, but that it should be complemented
by additional provisions. These would make binding on EU Member
States certain generally accepted principles of good practice
in the operation of the 1980 Hague Convention, and would also
make new provision for cases where proceedings under that Convention
have concluded with the making of an order refusing the return
of the child in the circumstances permitted by Article 13 of the
Convention.
5.9 The Minister explains the effect of these new provisions
as follows:
"The effect of the latter provisions is to confirm that 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, as will the other parent,
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 the
issue 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) 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, through submissions
made to it, 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 the 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,
to be specified in section 3 of Chapter III of the Regulation,
then that custody order will be entitled to enforcement in any
other EU State where the child is present."
5.10 As for the amendments which were made at the JHA
Council (and which are now set out in document (c)), the Minister
states that these are in accordance with the underlying principles
of the 1980 Hague Convention, whereby a non-return order under
Article 13 is not to be taken as a decision on the merits of any
custody issue.
Conclusion
5.11 We are grateful to the Minister for informing
us of the outcome of the Justice and Home Affairs Council on 29
November, and for providing the text of the amendments agreed
at that Council.
5.12 We have no questions to raise on document (c),
but we recommend that it be debated by European Standing Committee
B at the same time as documents (a) and (b).
24 The
Convention on the civil aspects of child abduction, adopted at
the Hague on 25 October 1980. Back
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