(iv) Recognition and enforcement
- custody orders
41. The proposed Convention
would require the courts in one Member State to recognise custody
orders made during matrimonial proceedings in another Member State.
Dr Clive said that recognition of foreign orders relating to children
rarely if ever caused problems. Reciprocal recognition within
the United Kingdom was provided for by section 25 of the Family
Law Act 1986 and he did not anticipate difficulty from the extension
of that rule to other European countries. In Scotland it was already
the case under section 26 of that Act that orders made by the
court of the child's habitual residence were recognised automatically.
Nor did Dr Clive think there would a problem in relation to the
recognition of orders relating to children from outside the European
Union (when the court might be exercising jurisdiction on a ground
permitted under Article 7 - described in more detail at paras
37-39 above). Dr Clive said: "in general it would be desirable
that if a person has got a custody order from a court somewhere
on genuine grounds that custody order should be recognised"(p
4, Q 44). The question, Professor Hartley said, was whether the
grounds were genuine (Q 44).
42. Professor McClean
was critical, firstly, of the apparent failure of the proposal
to take the time factor into account in its rules on the recognition
of custody orders and, secondly, of the limited and mandatory
grounds for non-recognition. He contrasted the practice of the
English courts and the position under the Luxembourg Convention.
English practice recognised the reality that family circumstances
change: "A decision as to ... custody or access can never
be written in stone; it is always open to review". The proposal
gave no indication as to how long a foreign custody order should
remain enforceable. Moreover the only grounds for non-recognition
were public policy, want of reasonable notice of the original
proceedings, and irreconcilability with a judgment given earlier
in the forum State or a non-Member State. It did not seem open
to the court (as it did under the Luxembourg Convention) to say
that in the light of changes in circumstances the effects of the
original decision were manifestly no longer in accordance with
the welfare of the child. In Professor McClean's view, the proposal
" threatens a regime of such rigidity as seems calculated
to lead to injustice or, at the least, unnecessary procedural
complexity" (p 71).
43. The SFLA was particularly
critical of the language of Article 17 of the proposal which read:
"Under no circumstances may a foreign decision be reviewed
as to its substance". This could be manifestly unjust in
cases relating to children. Miss Keir said: "We must have
the right to review if the interests of the child demand"
(p 25, Q 143). For the President's International Committee, Mr
Karsten responded: "It is fundamental that if you have a
system of recognition of judgments you do not re-open a judgment
on its merits". The Departments agreed (Q 213). Mr Karsten
referred to the fact that the 1996 Hague Convention (Article 23)
expressly permitted the court to refuse to recognise a foreign
custody order where it was "manifestly contrary to public
policy ... taking into account the best interests of the child"(QQ
145-6). In the SFLA's view, the courts must be allowed to retain
some degree of flexibility when being asked to enforce orders
relating to children and the text of the Convention should be
amended, perhaps along the lines of Article 23 of the 1996 Hague
Convention, to permit this (p 25, QQ 143-4). For the Departments,
Mr Parker confirmed that the latest version of the Convention
was in line with the Hague Convention (Q 214).
44. The President's
International Committee also queried the appropriateness of the
grounds of non-recognition contained in Article 15 to custody
orders. Article 15(1)(d), in particular, required modification
to allow non-recognition in cases of inconsistency with a later
judgment, not an earlier one, as is provided in Article 23(2)(e)
of the 1996 Hague Convention (p 23).
RELATIONSHIP WITH
OTHER CONVENTIONS
45. As mentioned in
the introduction to this Report there are a number of existing
international instruments in the field. Reference has already
been made to them when considering the general question of the
need for the Convention and when considering some of the detail
of its provisions. In this section we consider the proposed formal
relationship of the Convention with other international instruments,
of which there are, to recap, four main ones:
(1) the
1970 Hague Convention on the recognition of divorces and legal
separations;
(2) the 1980 Hague Convention
on International Child Abduction;
(3) the 1980 Council of Europe
Convention on the Recognition and enforcement of custody orders;
(4) the 1996 Hague Convention
on the Protection of Children.
The interaction of these conventions
with the present proposal is dealt with in Articles 3A and 40-42.
46. Article 3A requires
Member States' courts to "exercise their jurisdiction in
conformity with" the 1980 Hague Convention on International
Child Abduction. The object of that Convention, as mentioned above,
is to protect children from the harmful effects of their wrongful
removal from the country of their habitual residence to another
country or their wrongful retention in some country other than
that of their habitual residence. The Convention lays down a procedure
(involving the establishment of Central Authorities through whom
claims for return of children are initially made) and rules restricting
enquiry by the courts into existing custody arrangements in order
to ensure the prompt return of the child to the State of his habitual
residence. Witnesses stressed the importance of the Convention
and were agreed that the present proposal should not in any way
impede its operation. It was generally agreed that Article 3A,
as drafted, should not have any detrimental effects.
47. While Article 40
provides that the proposed Convention will supersede certain listed
bilateral conventions[17],
the basic rule in Article 42 appears to be that the proposal will
not, subject to certain exceptions, affect other conventions,
past or future. It is expressly stated that the proposal will
not affect the 1970 Hague Convention. Professor Hartley said:
"the idea is that, in principle, these Conventions are all
supposed to mesh together and to provide a sensible answer. Whether
they actually do that is another problem, particularly whether
the EC one meshes with the Hague Conventions. That, I think, could
be questioned". Professor Hartley noted a paradoxical result.
It might become easier for decrees of United Kingdom courts to
secure recognition in those Member States that are not parties
to the Hague Convention than in those that are. Likewise, decrees
from other Member States that are not parties to the Hague Convention
might be more easily recognised in the United Kingdom than those
of Member States that are (p 10, Q 57).
48. The President's
International Committee also drew attention to the uncertainty
of the implications of Article 42. It appeared a dangerous provision
because it might open the way to recognition within the European
Union of further divorces which would not qualify for recognition
under the 1970 Hague Convention, even in relation to parties resident
in a Member State (p 22). The Commission favoured provisions governed
by the maximum effectiveness rule, which would give precedence
to whichever provision in a convention was the most conducive
to the free movement of judgments (p 59). The Departments said
that the intention was that, with the exception of the Hague Child
Abduction Convention, the Convention should have precedence over
others where it applies. They acknowledged that there was some
uncertainty concerning the effect of Article 42 and said that
the provision was likely to require amendment in the forthcoming
negotiations (p 42).
ROLE OF EUROPEAN
COURT OF JUSTICE
49. The proposal contemplates
the Court of Justice being given jurisdiction in relation to the
Convention. The draft text, however, contains no details. Under
the Brussels Convention on jurisdiction and recognition of judgments
in civil and commercial matters the Court has an interpretative
jurisdiction on reference from national courts analogous to that
under Article 177 of the EC Treaty. The Commission said that
the 1968 Brussels Convention had greatly benefitted from a uniform
interpretation by the Court of Justice and that most Member States
agreed that the same role should be conferred on the Court as
regards the proposed Convention (p 58). Dr Clive thought that
if the European Court did not have jurisdiction over the proposed
Convention there would be potential disadvantages if real problems
emerged, for example, over the interpretation of "habitual
residence" and there were severely diverging interpretations
in different Member States (Q 32). (The Faculty of Advocates pointed
separately to the uncertainty as to the meaning of "habitual
residence" and urged that the Convention contain a definition
(p 60).
50. Professor Beaumont
opined that one of the great advantages of the European Union
being involved in private international law was that it can provide
uniform interpretation through the Court of Justice. But he was
concerned in the present context about the implications of the
time taken (typically 18 months or longer) for the Court to deal
with a reference for a preliminary ruling: "The possibility
of a case concerning the custody of small children being referred
to the European Court and a decision not being reached for more
than 6 months is untenable ... [T]he delay... would pre-empt the
decision on the merits about parental authority". Practitioners
also expressed concern over the time which might be taken by the
Court. Both the President's International Committee and the SFLA
considered that any delay in a case where children were involved
would be prejudicial to their interests. Mr Karsten said: "It
would be incompatible with the principle that children's welfare
requires speedy decisions" (QQ 135, 141).
51. Professor Beaumont
proposed that either custody matters be removed from the scope
of the Convention or the Court of Justice should not be given
jurisdiction (p 55). Other witnesses looked for a less drastic
solution. Professor Hartley thought the only possible role for
the European Court in the circumstances would be "some system
under which the parties could not make a reference from the national
court to the European Court but if there were diverging decisions
in different countries, then a Member State, say the United Kingdom,
could ask the European Court for an advisory opinion" (Q
33).
52. Professor Arnull
also concluded that the Court of Justice should not be given jurisdiction
to give preliminary rulings on the interpretation of the Convention
at the request of national courts. Instead, the competent authorities
of the Member States and the Commission should be empowered to
request the court to give a ruling on the interpretation of the
Convention where judgments given by the courts of one Member State
conflicted with those of the courts of another Member State or
the Court of Justice[18].
The ruling given by the Court of Justice should be binding as
to the future, but should not affect the judgments giving rise
to or otherwise preceding the reference. In addition, a system,
co-ordinated by the Court of Justice, for exchanging information
about judgments of national courts on the Convention should be
established. National courts should be required to take account
of such judgments when considering the effect of the Convention
in particular cases before them (p 53). Mr Karsten, for the President's
International Committee, thought that even such a scheme was not
without difficulty: "Since emotions run so high in matters
relating to children there is a special reason for concern about
engendering a feeling of injustice in a parent who learns later
that he was wrongly denied custody"(Q 142).
53. The Departments
recognised the beneficial role which the Court of Justice had
had in relation to the 1968 Brussels Convention. However, as regards
the present Convention, they maintained an open mind. Mr Watherston
said: "We think that in this context of Brussels II the balance
of advantage as between, on the one hand, having uniform interpretation
and the disadvantage of expense and delay on the other is by no
means clear". Delay in cases relating to children would be
very serious and undesirable. The Departments agreed that Professor
Arnull's proposal was well worth considering and acknowledged
that it might help to give an authoritative interpretation on
doubtful points without affecting the parties (QQ 202-5).
16
Under the 1986 Act a court can refuse recognition (i) if the foreign
divorce was granted at a time when it was irreconcilable with
a previous decision given, or entitled to recognition, as to the
subsistence or validity of the marriage; (ii) if at the time the
divorce was granted there was, according to United Kingdom law,
no subsisting marriage; (iii) if there was either a lack of proper
notice of the divorce proceedings to one party or there was a
lack of proper opportunity for a party to take part in the proceedings;
(iv) if (in the case of divorce etc other than by means of proceedings)
there is a lack of official documentation; and, (v) if recognition
would be manifestly contrary to public policy. Back
17
The Departments pointed out that the list in Article 40 did not
include the 1936 Convention between the United Kingdom and Belgium
(S.I. 1936/1169) (p 42). Back
18
Professor Arnull drew the Committee's attention to the precedent
(albeit unused in practice) contained in the Protocol to the 1968
Brussels Convention. He proposed the addition of the Commission
as a party who might trigger a reference to the Court of Justice
on the ground that "the Commission might sometimes be able
to take a more panoramic and objective view of [the Convention's]
functioning than the competent authorities of the Contracting
States". Back
