22 July 1997
By the Select Committee appointed
to consider Community proposals, whether in draft or otherwise,
to obtain all necessary information about them, and to make reports
on those which, in the opinion of the Committee, raise important
questions of policy or principle, and on other questions to which
the Committee considers that the special attention of the House
should be drawn.
ORDERED TO REPORT
BRUSSELS II: THE DRAFT
CONVENTION ON JURISDICTION, RECOGNITION AND ENFORCEMENT
OF JUDGMENTS IN MATRIMONIAL MATTERS
PART
1 INTRODUCTION
1. The purpose of the
proposed Convention is to extend to matrimonial matters the concept
and scheme of the Brussels Convention on jurisdiction and the
enforcement of judgments in civil and commercial matters[1]
("the 1968 Brussels
Convention"). That Convention provides a set of rules determining
which Member State's courts have jurisdiction in relation to a
particular matter (such as a commercial contract) and when and
how the judgments of the courts of one Member State acting under
the Convention must be recognised and enforced in other Member
States. The 1968 Brussels Convention applies to all "civil
and commercial matters" but expressly does not apply to "the
status or legal capacity of natural persons". This phrase
is generally understood to include questions of nullity of marriage,
divorce and judicial separation. At the time of its conclusion,
the jurisdictional laws of the Member States on matrimonial matters
were considered so disparate as to preclude their effective unification
in the 1968 Convention without major change to its nature[2].
2. The present initiative
began in 1992 when Germany proposed that the 1968 Brussels Convention
be extended to cover certain family law matters. One of its purposes
was to deal with problems experienced in particular between France
and Germany, on account of the lack of mutual recognition of their
divorce decrees and the possibility of competing divorce proceedings
relating to the same marriage. In June 1994 the Council of Justice
Ministers instructed a Working Group of experts to prepare a draft
convention on jurisdiction and the recognition and enforcement
of judgments in matrimonial matters. In June 1995 the Council
considered the progress made and agreed that work continue and
that child custody orders made ancillary to divorce proceedings
be included in the scope of the Convention.
3. The Convention (frequently
referred to as "Brussels II") would have two principal
fields of application; the first concerning divorce, nullity of
marriage and legal separation; the second relating to the exercise
of parental authority over the children of the spouses on the
occasion of such matrimonial proceedings (for convenience we use
the term "custody order"[3]
in relation to the latter). The draft Convention is broadly modelled
on the 1968 Brussels Convention. It sets out rules as to when
a State will have jurisdiction in matters relating to nullity,
divorce and judicial separation and child custody. The Convention
provides for the situation where the same matter, or related matters,
is brought before the courts in different States. It also contains
rules for the recognition and enforcement of judgments in matrimonial
matters and for Conventions in the field. It is proposed that
the European Court of Justice be given jurisdiction to rule on
questions of interpretation of the Convention.
4. International co-operation
in these matters is not new. There exists already a number of
conventions dealing with matrimonial and child custody matters.
- The 1970 Hague Convention
on recognition and enforcement of judgments in matrimonial
matters[4]
("the 1970 Hague Convention") sets out rules for the
reciprocal recognition of divorce decrees and legal separations.
Some thirteen States (including the United Kingdom) are party.
The Member States which have not ratified are Austria, Belgium,
France, Germany, Greece, Ireland and Spain.
- The Hague Convention on the
civil aspects of international child abduction 1980 ("the
Hague Child Abduction Convention") has the object of restoring
children who have been wrongfully removed from the State of their
habitual residence and lays down a procedure to enable their prompt
return. It is, in practice, a most important instrument in relation
to international custody disputes. Some twenty-four States are
party to the Convention including the United Kingdom[5]
and all other Members of the Union except Belgium.
- The European Convention on
recognition and enforcement of decisions concerning custody of
children ("the Luxembourg Convention") emanates
from the Council of Europe. It provides for the recognition in
one Contracting State of decisions made in another Contracting
State except in certain limited circumstances. The United Kingdom
is a party to the Convention[6],
as are all other Member States.
- The Hague Convention on jurisdiction,
applicable law, recognition, enforcement and co-operation in respect
of parental responsibility and measures for the protection of
children ("the 1996 Hague Convention") provides
a comprehensive regime for child custody matters which is not
restricted to questions arising in the context of matrimonial
proceedings but deals also with independent proceedings relating
to parental responsibility. It extends to the placement of a child
in institutional care and the supervision by a public authority
of the care of a child It deals with applicable law as well as
jurisdiction, recognition and enforcement and provides for co-operation
between the authorities of Contracting States. The Convention
was opened for signature on 19 October 1996.
5. Sub-Committee E (Law
and Institutions), whose members are listed in Appendix 1, carried
out an enquiry into the main issues raised by the proposal for
a Convention. Witnesses were invited to consider all or any of
the following questions:
(i) Is there a need for the
Convention?
(ii) What is the role of the Community?
(iii) What would be the impact
of the Convention on the law and practice in the United Kingdom?
(iv) What would be the relationship
of the Convention with other international instruments?
Witnesses were also invited to describe
what advantages and disadvantages they foresaw arising from the
proposal and to comment on the practical implications. The Sub-Committee
received the written and oral evidence from the witnesses listed
in Appendix 2. The evidence is printed with the Report. We are
grateful to all those who assisted in this enquiry.
1
Given effect in the United Kingdom by the Civil Jurisdiction and
Judgments Act 1982. The 1968 Convention has been amended from
time to time to take account of the accession of new Member States
to the Community. The 1968 Convention formed the basis of the
Lugano Convention 1988 which extends the rules on jurisdiction
and enforcement of judgments to the EFTA countries. Back
2
The position is described in the official report on the Convention
prepared by Mr P Jenard. [1979] O.J. C59, at pp 8-13. Back
3
The term "custody order" is used in this report to embrace
judgments relating to the exercise of parental authority (under
the proposal) or parental responsibility (in the terms of the
1996 Hague Convention). Domestic law in the United Kingdom no
longer uses the term "custody order". Since the Children
Act 1989 the concept of "parental responsibility" has
replaced the notion of "custody" and the term"
custody orders" has become technically redundant. English
courts now make a range of orders including "residence orders",
"contact orders", "prohibited steps orders"
and "specific issues" orders. Scottish courts have a
wide jurisdiction to make orders relating to parental responsibility
or parental rights, including residence orders and contact orders. Back
4
Originally given effect in the United Kingdom by the Recognition
of Divorces and Legal Separations Act 1971 and now subsumed in
Part II of the Family Law Act 1986. Back
5
The Hague Child Abduction Convention is given effect in the United
Kingdom by the Child Abduction and Custody Act 1985. Back
6
With the exception of its provisions on abduction (where the Hague
Child Abduction Convention is preferred) the Luxembourg Convention
is given effect in the United Kingdom by the Child Abduction and
Custody Act 1985. Back
