Documents considered by the Committee on 28 November 2018 Contents

18Recast of the Brussels IIa Regulation

Committee’s assessment

Legally important

Committee’s decision

Not cleared from scrutiny; further information requested; but scrutiny waiver granted; drawn to the attention of the Justice Committee

Document details

Proposal for a Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility; and on international child abduction (recast)

Legal base

Article 81(3) TFEU; special legislative procedure; unanimity

Department

Ministry of Justice

Document Number

(37909), 10767/16 + ADDs 1–2, COM(16) 411

Summary and Committee’s conclusions

18.1Regulation 2201/2003 (the Brussels IIa Regulation) sets out rules of private international law115 relating to cross-border matrimonial matters,116 parental responsibility117 and international child abduction (which includes wrongful removal or retention of a child). This includes rules for deciding (a) which court has jurisdiction, (b) the extent to which a judgement given by the court of one Member State must be recognised by the court in another,118 (c) the enforcement of judgments in another Member State, and (d) co-operation between Central Authorities designated in each Member State to co-ordinate the handling of child abduction cases.

18.2This proposed recast focusses on the child abduction aspects of this Regulation. Our first Report in September 2016 highlighted a variety of legal and policy issues that were of concern to the Government.

18.3The UK participates in the Brussels IIa Regulation. The then Minister (Sir Oliver Heald) notified the Committee in October 2016 that the UK had opted in to this proposal in the light of broad support from interested parties. The Minister (David Gauke) provided the Committee with a detailed update on the progress of negotiations by letter dated 17 July 2018 now supplemented by a letter of 20 November 2018. He indicates that the Council is shortly likely to be seeking agreement to its General Approach in readiness for trilogue negotiations with the European Parliament.

18.4The Minister explains in detail how the text meets concerns raised by the Government as outlined below. The main outstanding issue is clarification of the duty to hear the child. It is not currently envisaged that the recast would enter into force until 1 July 2022.

18.5The UK general objective is that post-Brexit there will be a close cooperation in civil judicial co-operation such as in this area, although nothing appears in the current Outline of the Political Declaration setting out the Framework for the Future Relationship between the European Union and the United Kingdom.

18.6The Government’s Guidance of 13 September 2018 on Handling civil legal cases that involve EU countries points out that the UK has signed up in its own right to a number of Hague Conventions on family law which cover many of the same areas as the Brussels IIa Regulation. It indicates that in the event of no deal the UK would repeal existing EU rules and a switch to the relevant Hague Conventions.

18.7We are grateful for the Minister’s full update and we grant a scrutiny waiver, expiring at the end of the year, for him to be able to agree to a Council General Approach in anticipation of trilogue discussions with the European Parliament.

18.8We ask him to update us in the New Year, and in doing so identify the main elements of the proposal that are likely to be the centre of discussion with the European Parliament, and to address the prospects of agreement with the EU on the subject area of this proposal, and its likely shape.

18.9In the meantime the proposal remains under scrutiny.

Full details of the documents:

18.10Proposal for a Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility; and on international child abduction (recast): (37909), 10767/16 + ADDs 1–2, COM(16) 411.

The Minister’s letters of 17 July 2018 and 20 November 2018

18.11The Minister indicates that the Council text has largely evolved in a manner the Government finds satisfactory. Broadly:

Procedures supplementing the 1980 Hague Convention regarding child abduction

Placement of a child in another Member State (Article 65)

Automatic recognition of judgments

Enforcement of decisions

Cooperation between Central Authorities

Authentic Instruments120 and Agreements

Hearing the child

Previous Committee Reports

Tenth Report HC 71–viii (2016–17), chapter 7 (7 September 2016).


115 I.e. the law relating to the handling of cross-border disputes between private parties.

116 Divorce, legal separation and marriage annulment.

117 Including custody and rights of access.

118 A judgment of a court in one Member State is “recognised” when it is accepted by the Court of another Member State, particularly for the purposes of subsequent proceedings in which the first judgment is relevant e.g. a divorce in Member State A may need to be recognised by a court in Member State B dealing with the division of matrimonial property.

119 Decision other than “privileged” decisions. The latter cover contact with children, custody decisions entailing the return of an abducted child.

120 An Authentic Instruments is a certificate by a publicly recognised authority (for example a notary public) recording a legal act or fact (for example a matrimonial settlement).




Published: 4 December 2018