Documents considered by the Committee on 14th October 2015 - European Scrutiny Contents


10 Accession to the Hague Convention on civil Aspects of International Child Abduction

Committee's assessment Legally important
Committee's decision(a) Not cleared from scrutiny; further information requested; (b) and (e) cleared from scrutiny (decision reported 9 September 2015); (c), (d), (f), (g) and (h) cleared from scrutiny
Document details(a) Proposal for a Council Decision on the declaration of acceptance by the Member States, in the interests of the European Union, of the accession of Gabon to the 1980 Hague Convention on the Civil Aspects of International Child Abduction

(b) Proposal for a Council Decision on the declaration of acceptance by the Member States, in the interests of the European Union, of the accession of Andorra to the 1980 Hague Convention on the Civil Aspects of International Child Abduction

(c) Proposal for a Council Decision on the declaration of acceptance by the Member States, in the interests of the European Union, of the accession of Seychelles to the 1980 Hague Convention on the Civil Aspects of International Child Abduction

(d) Proposal for a Council Decision on the declaration of acceptance by the Member States, in the interests of the European Union, of the accession of Albania to the 1980 Hague Convention on the Civil Aspects of International Child Abduction

(e) Proposal for a Council Decision on the declaration of acceptance by the Member States, in the interests of the European Union, of the accession of Singapore to the 1980 Hague Convention on the Civil Aspects of International Child Abduction

(f) Proposal for a Council Decision on the declaration of acceptance by the Member States, in the interests of the European Union, of the accession of Morocco to the 1980 Hague Convention on the Civil Aspects of International Child Abduction

(g) Proposal for a Council Decision on the declaration of acceptance by the Member States, in the interests of the European Union, of the accession of Armenia to the 1980 Hague Convention on the Civil Aspects of International Child Abduction

(h) Proposal for a Council Decision on the declaration of acceptance by the Member States, in the interests of the European Union, of the accession of Russia to the 1980 Hague Convention on the Civil Aspects of International Child Abduction

Legal base(a) and (h) Articles 81(3) and 218 TFEU; unanimity
DepartmentForeign and Commonwealth Office
Document Numbers (a) (33617), 5218/12, COM(11) 904

(b) (33618), 5306/12, COM(11) 908

(c) (33619), 5307/12, COM(11) 909

(d) (33620), 5309/12, COM(11) 912

(e) (33621), 5310/12, COM(11) 915

(f) (33622), 5311/12, COM(11) 916

(g) (33623), 5312/12, COM(11) 917

(h) (33629), 5308/12, COM(11) 911

Summary and Committee's conclusions

10.1 The 1980 Convention is the primary international instrument to facilitate the prompt return of wrongfully removed or retained children to their country of habitual residence through summary court procedures and a system of co-operation between central authorities. All Member States are parties, but the Convention has no facility for the EU to become a party in its own right. The Convention is given effect (and enhanced) within the EU by Regulation 2201/2003[ 78] (the Brussels IIa Regulation) in the light of which the Court of Justice ruled, in October 2014, that the EU had exclusive competence over the subject matter of the Convention.[ 79] Agreement to accession to the Convention by new states requires existing state parties to signify their assent by lodging a declaration. Now that the exclusive competence of the EU has been established, those Member States that have not lodged a declaration (which include the UK) can only do so if authorised by the EU.

10.2 At our meeting of 9 September we cleared the proposals relating to Andorra and Singapore (documents (b) and (e)) whilst commenting on the legal aspect of the UK opt-in and asking the Minister for details of why he overrode scrutiny, on a longstanding and slow moving matter on which there was no indication of urgency.

10.3 The Minister (Mr David Lidington) has written to respond to this question and seeking clearance of the remaining six proposals. He indicates that Gabon has not met the benchmarks for applying the Convention because it does not have a Central Authority.

10.4 The reason the Minister gives for overriding scrutiny on the adoption of the Andorra and Singapore proposals is that it would not have been in the interests of children to delay any further the adoption, and that there was therefore considerable pressure (from a source he does not identify) to adopt these proposals. However, these proposals had already been on the table over three years without any sign of urgency and were adopted only the month before this Committee was formed and met, and there is an opportunity for these Decisions to be adopted this month. Against this timetable we do not consider that the reason given by the Minister does outweigh the importance of Parliamentary scrutiny. We therefore do not consider that the explanation provided by the Minister outweighs the importance of Parliamentary scrutiny or made the override "unavoidable".

10.5 In relation to the other six proposals the outstanding issue is the question of whether the UK opt-in is engaged. As we outlined in our previous Report, the question is whether the UK participates in these proposals because it has opted-in (as the Government asserts), or whether the UK automatically participates because it previously opted in to internal EU legislation[ 80] which is the basis for the EU's exclusive external competence (as the EU institutions maintain). The Minister indicates the Government's satisfaction that the recitals inserted into these proposals is compatible with its view that the UK has the right to opt-in. We disagree. The relevant recitals read "The United Kingdom and Ireland are bound by Regulation (EC) No 2201/2003 and are taking part in the adoption and application of this Decision". This wording points strongly to the interpretation that the UK is automatically bound by these proposals because it has opted in to Regulation 2201/2003. This view is reinforced by the fact that this is not the usual words used in legislation to indicate that the UK has the right to opt-in.

10.6 We clear the proposals relating to Seychelles, Albania, Singapore, Morocco, Armenia and Russia (documents (c), (d), (f), (g) and (h)) because it is clear that the UK participates in the proposals — either because it has opted in or because it automatically participates. However we draw to the attention of the House that in agreeing these proposals the Government has and will undermine its argument of principle (which we support) that opting in to EU internal rules does not result in the UK being automatically bound to participate in any EU agreement with a third country on the same subject. This is all the more regrettable as agreement to these proposals requires unanimity.

10.7 We retain the proposal relating to Gabon (document (a)) under scrutiny pending a more favourable assessment of that country's ability to implement the Convention.

Full details of the documents: (a) Proposal for a Council Decision on the declaration of acceptance by the Member States, in the interests of the European Union, of the accession of Gabon to the 1980 Hague Convention on the Civil Aspects of International Child Abduction: (33617), 5218/12, COM(11) 904; (b) Proposal for a Council Decision on the declaration of acceptance by the Member States, in the interests of the European Union, of the accession of Andorra to the 1980 Hague Convention on the Civil Aspects of International Child Abduction: (33618), 5306/12, COM(11) 908; (c) Proposal for a Council Decision on the declaration of acceptance by the Member States, in the interests of the European Union, of the accession of Seychelles to the 1980 Hague Convention on the Civil Aspects of International Child Abduction: (33619), 5307/12, COM(11) 909; (d) Proposal for a Council Decision on the declaration of acceptance by the Member States, in the interests of the European Union, of the accession of Albania to the 1980 Hague Convention on the Civil Aspects of International Child Abduction: (33620), 5309/12, COM(11) 912; (e) Proposal for a Council Decision on the declaration of acceptance by the Member States, in the interests of the European Union, of the accession of Singapore to the 1980 Hague Convention on the Civil Aspects of International Child Abduction: (33621), 5310/12, COM(11) 915; (f) Proposal for a Council Decision on the declaration of acceptance by the Member States, in the interests of the European Union, of the accession of Morocco to the 1980 Hague Convention on the Civil Aspects of International Child Abduction: (33622), 5311/12, COM(11) 916; (g) Proposal for a Council Decision on the declaration of acceptance by the Member States, in the interests of the European Union, of the accession of Armenia to the 1980 Hague Convention on the Civil Aspects of International Child Abduction: (33623), 5312/12, COM(11) 917; (h) Proposal for a Council Decision on the declaration of acceptance by the Member States, in the interests of the European Union, of the accession of Russia to the 1980 Hague Convention on the Civil Aspects of International Child Abduction: (33629), 5308/12, COM(11) 911.

Background The Minister's letter of 23 September 2015

10.8 In his letter the Minister provides the following update:

    "Discussion on these countries took place at working group level in the Council's Civil Law Committee on 1 July and 21 September. The UK has assessed that Albania, Armenia, Morocco, the Russian Federation and Seychelles all meet the minimum benchmarks to enable them to operate the Convention but that Gabon does not because it does not have a Central Authority, a requirement of the Convention. Given the general support for this approach we expect the Presidency to refer the proposals for Albania, Armenia, Morocco, the Russian Federation and Seychelles to the Council for adoption at the earliest opportunity. While that is likely to be the JHA Council on 3-4 December, they may wish to do so at an earlier Council. For that reason I am writing to request that the Committee release the six proposals from scrutiny."

10.9 In relation to the agreement of the Andorra and Singapore proposals he states:

    "The Council Decisions for Andorra and Singapore were duly adopted at the June JHA Council. You recently asked why the override of scrutiny was considered unavoidable when these proposals were first tabled as long ago as December 2011 and there was no indication of intervening urgency. Given the time that had passed since the Commission issued its proposals and while the opinion of the CJEU was awaited, there were concerns from Member States, as well as from some of the third countries concerned, that it would not be in the interests of children to delay any further the adoption of these proposals. There was, therefore, considerable pressure to move ahead on at least some of the proposals as soon as possible. It was clear there was general support for accepting the accessions of Andorra and Singapore so the Presidency decided to refer these to the June Council. Unfortunately as your Committee had yet to be re-established it was not possible to obtain scrutiny clearance before the Council. As you know, the responsibility to keep your Committee informed is something I take seriously but regrettably, the need for the override of scrutiny on this occasion was unavoidable."

10.10 In relation to the opt-in he states:

    "The Committee has also expressed its view that despite unanimity being required, the Government did not resolve the dispute as to whether the UK opt-in is engaged. You consider the recitals to each Decision to be ambiguous at best and have asked the UK to press for recitals in the remaining six similar proposals that unambiguously indicate that the UK opt-in is engaged. The Government is satisfied that recital 13 of each Council Decision is compatible with its view that the UK has a right to opt in. We do not accept that the fact that the UK is bound by Regulation (EC) No 2201/2003 leads automatically to participation in proposals to accept the accession of countries to the 1980 Hague Convention. The UK did opt in to these proposals and the recital confirms the UK's participation."

Previous Committee Reports

Third Report HC 342-iii (2015-16), chapter 42, (9 September 2015); Tenth Report HC 86-x (2012-13), chapter 5 (17 July 2012); Fifty-ninth Report HC 428-liv (2010-12), chapter 6 (14 March 2012).


78   Concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and matters of parental responsibility. Back

79   Opinion 1/13. Back

80   In this case the Brussels IIa Regulation 2201/2003. Back


 
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Prepared 14 October 2015