sou · GTB3111 · 2006-01-01 00:00:00 — is also to illustrate similarities and differences between the 1996 Hague Convention and Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (the II Regulation). The terms of reference also includes presenting proposals for what authority should be appointed as the central authority in relation to the 1996 Hague Convention and the II Regulation and what tasks should be handled by the central authority or by other authorities or bodies. In addition, one particular question for the Committee is to consider whether it is appropriate for certain provisions of the 1996 Hague Convention to also be set out in generally applicable laws. This applies, for instance, to the rules for guardianship and the special jurisdiction rule that applies to wrongful removal or retention of children. If, during the course of its work, the Committee should conclude that some related matter of international family law ought to be taken up, the Committee is free to do so. Implementation of the 1996 Hague Convention As some of the questions covered by the 1996 Hague Convention are regulated in the II Regulation, European Union (EU) Member States are currently unable to accede to the Convention on their own. However, the EU intends to take a decision that will authorise Member States to ratify the Convention and also expects Member States to do so. proposes that ratifies the 1996 Hague Convention as soon as the EU authorises Member States to do so. also proposes that the Convention should be implemented with Swedish law through incorporation, which means that the provisions of the Convention will have the force of law in . This proposal does not, however, include the Conventions final – the Committees assessment is that these need not be implemented with Swedish law. In addition, the Committee proposes some supplementary provisions to the Convention to enable Swedish authorities to apply the Convention. The 1996 Hague Convention and proposed supplementary provisions One of the purposes of the 1996 Hague Convention is to improve the protection of children in international situations. To achieve this purpose the Convention contains provisions that regulate which states authorities have jurisdiction to take measures and provisions on which states law is applicable in different situations. The question of recognition of decisions taken by competent authorities of the Contracting States is regulated, as are the conditions for the enforcement of a decision taken in another state. The Convention also contains provisions on cooperation between authorities in different states. The 1996 Hague Convention is applicable to questions of parental responsibility and measures for the protection of children up to 18 years of age. Parental responsibility refers to parental authority or any analogous relationship determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child. The Convention refers to both civil and public measures for the protection of children. These measures can thus concern rights of custody, rights of access, guardianship and curatorship as well as questions concerning the placing of the child in a family or in institutional care, supervision by a public authority of the care of a child and the administration of the childs property. It does not, however, cover questions like paternity, adoption, the name of the child or maintenance obligations. Relationship to other international instruments and to autonomous law In several respects, the questions covered by the 1996 Hague Convention are already regulated in other international instruments. One of these is the above-mentioned II Regulation, which is applicable to civil matters of parental responsibility. The II Regulation takes precedence over the 1996 Hague Convention in cases where the child is habitually resident in a state that applies the II Regulation (i.e. in EU Member States except ) or concerning the enforcement of a decision taken by a competent authority of an EU . As regards other international agreements, the general rule is that their application is not affected by the 1996 Hague Convention and the Convention itself states specifically that it does not affect the application of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the 1980 Hague Convention). However, in the event of Swedish ratification of the 1996 Hague Convention, its provisions should take precedence to autonomous Swedish law (i.e. the generally applicable laws that are in force when no EU legislation or other convention-based legislation is applicable). This is reflected in the legislation proposed by the Committee. Jurisdiction under the 1996 Hague Convention The 1996 Hague Convention regulates the international jurisdiction of authorities in matters of parental responsibility. Except as otherwise provided by the II Regulation, the provisions of the Convention give Swedish authorities inter- national jurisdiction when a child is habitually resident in and in relation to children in whose habitual cannot be established or children who are refugees or internationally displaced. In addition, the Convention gives Swedish authorities jurisdiction in relation to children who are present in (or in relation to the property of children in ) in urgent cases or in respect of territorial measures that only have effect in . Measures in urgent cases and territorial measures can subsequently be replaced by measures taken by the authorities that normally have jurisdiction. proposes the introduction of a legal provision on a reserve forum for the social welfare committee in cases where there is Swedish jurisdiction under the 1996 Hague Convention but no social welfare committee has jurisdiction under Swedish rules on local jurisdiction. Apart from this, the Committee considers that no supplementary legal provisions or amendments are required to make it possible to follow the mentioned jurisdiction rules. The 1996 Hague Convention also contains a provision con- cerning jurisdiction in cases of wrongful removal or retention of a child. The authorities of a state in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired habitual in another state. Until then the authorities of the refuge state only have jurisdiction in urgent cases. This provision can be seen as a complement to the rules of the 1980 Hague Convention, which deal specifically with wrongfully removed or retained children, and does not require any supplementary provision for its application. There is in-built flexibility in the 1996 Hague Convention to enable international jurisdiction to be assessed on the basis of the best interests of the individual child. According to the Convention, in a specific case it is possible for the authorities of two Contracting States to agree which states authorities shall exercise jurisdiction having regard to the best interests of the child. A competent authority can also invite the parties to introduce a request on jurisdiction before the authorities of another State. However, the possibility of transferring jurisdiction is only to be used exceptionally and will only be considered if the authorities of both countries agree that it is in the best interests of the child. The child must also have some connection with the state whose authorities did not originally have jurisdiction. Certain supplementary provisions are needed to enable Swedish authorities to handle these provisions of the Convention. therefore proposes that as a general rule the competent Swedish authority must communicate its intention to request or admit the transferring of jurisdiction. also proposes that, as a general rule, a written procedure must be followed but that an oral procedure may be considered in certain cases, such as if it would benefit the individual case. In addition, the Committee proposes that a matter concerning a request of transferring jurisdiction may be decided in the county administrative court by one judge without a board of lay judges (this is also proposed in relation to the corresponding provision of the II Regulation on the transfer of jurisdiction). also proposes that a decision in a matter concerning a request shall be final and non- appealable. With respect to the question of appeals, and are considering introducing some form of right of appeal, while other countries such as the , and have not chosen to allow appeals against such a decision. Considering, in particular, that this provision is only to be used exceptionally and that the Swedish and foreign competent authority must agree on the matter, the Committee takes the view that the disadvantages of permitting appeals weigh more heavily than any advantages. The disadvantages that are particularly pronounced are the delay that an appeal option inevitably leads to and the fact that an appeal option in this question provides further scope for parents to have disputes about their child, which, in the view of the Committee, cannot be regarded as being either to the benefit of the child or in the best interests of the child. It is common for questions of parental responsibility to come up in matrimonial matters and the Conventions provisions on jurisdiction also open up a possibility of determining these questions in connection with such a case. The competent authorities of a that exercise jurisdiction in a matrimonial matter may determine a question of parental responsibility if, for instance, one of the parents has his or her habitual in the state in which the matrimonial matter is being determined and it is in the best interests of the child to determine the question in that connection. This provision does not require any supplementary legal provisions. Finally, it must be mentioned that the Convention contains a lis pendens provision which means that Swedish authorities – even if they would have jurisdiction according to the Convention – shall refrain from exercising their jurisdiction if corresponding measures have been requested and are still being considered in another , which had jurisdiction at the point in time when the request was made. The competent authority that has been called in first can, however, abstain from exercising its jurisdiction. As has been indicated above, the provisions of the 1996 Hague Convention, as well as some of the provisions of the II Regulation, are applicable in certain respects to all children and thus even if a child is a citizen of a state that has not acceded to the 1996 Hague Convention. However, the relationship to the II Regulation is such that the II take precedence over the 1996 Hague Convention within the scope of the Regulation (i.e. in principle in civil matters when the child is habitually resident in the EU except for ). In the great majority of cases this does not give rise to any problems as the grounds for jurisdiction in the II Regulation and the 1996 Hague Convention are largely in agreement. Applicable law under the 1996 Hague Convention Unlike the II Regulation, the 1996 Hague Convention contains provisions on which countrys law is to be applied in deciding matters of parental responsibility. Under the general rule in the 1996 Hague Convention, Swedish authorities shall in the first place apply Swedish law in exercising their jurisdiction under the provisions of the Convention. However, the law of another state may, exceptionally, be taken into account or applied. With respect to parental responsibility by operation of the law (ex lege) or in similar cases, the Convention provides that the law of the state in which the child is habitually resident shall be applied. If the child is habitually resident in this means that both parents are custodians of the child if the parents are married to one If the child changes its habitual the previous parental responsibility subsists at the same time as parental responsibility can be attributed to a new person if this follows from the law of the new state of habitual . This is of particular importance for a married couple with children when only the father has parental responsibility by operation of the law in the childs previous state of habitual . When the child acquires a new habitual in the mother also acquires custody of the children, as this follows from Swedish law. proposes that the Conventions regulation of ex lege situations shall also be applicable in relation to children who acquired habitual in before the Convention entered into force in . Under the 1996 Hague Convention, the actual exercise of parental responsibility, i.e. what a custodian of a child shall and may do, is governed by the law of the childs state of habitual . This is of importance concerning children that are in temporarily, for example. The Convention also contains provisions on the validity of a transaction between a childs representative and a third party. This gives some protection to a third party acting in good faith in cases where the childs representative is competent under the law of the state in which the transaction was concluded but is not competent under the law designated as primary according to the provisions of the chapter on applicable law. If the application of the law designated by the 1996 Hague Convention would be manifestly contrary to the Swedish legal order, i.e. would be contrary to public policy having regard to the best interests of the child, application of the law referred to by the Convention can be refused. The provisions on the applicable law of the Convention do not require any supplementary provisions in Swedish law, but the provision on the attribution and extinction of parental responsibility should necessitate extensive dissemination of information. Recognition and enforcement under the 1996 Hague Convention A measure that has been taken in a of the EU (with the exception of ) shall be recognised and declared enforceable in under the II Regulation. If instead the measure has been taken in a outside the EU, the 1996 Hague Convention shall be applied in assessing whether the measure shall be recognised and can be enforced in . As a general rule, measures taken in a pursuant to the provisions of the 1996 Hague Convention shall be recognised in the other Contracting States. There are, however, circumstances that mean that a decision need not be recognised. One such ground for refusal is if the measure was taken, in conflict with Swedish procedural rules, in the context of a proceeding without the child having been provided the opportunity of being heard (does not apply to cases of urgency). Another ground for refusing recognition is if the measure is incompatible with a later measure taken in a non-Contracting State in which the child is habitually resident, if this measure fulfils the requirements for recognition in . The parties affected by a decision can request the competent Swedish authority to determine in a separate proceeding whether or not the decision is recognised in . If a measure has been taken in a and is in fact enforceable in that state, when enforcement is sought in , the measure shall be declared enforceable in on request. The same grounds for refusal that apply for recognition are, however, applicable to the determination of a decisions enforceability and can thus lead to the rejection of an application. In cases where the measure is declared enforceable in the measure shall be enforced as if it had been taken in according to Swedish law. proposes certain supplementary provisions that shall apply in relation both to an application for a measure to be recognised or not recognised and to an application that a measure shall be declared enforceable in . One of these proposals is for the of Appeal () to be the competent authority in all cases, irrespective of whether the measure is regarded as public or civil under Swedish rules. also proposes certain provisions concerning the procedure itself, such as what documents are to be lodged with the of Appeal, that, as a general rule, the documents must be translated into Swedish and that an application must be communicated to parties before the Court decides to approve it. As a decision can contain both findings that are covered by the scope of the Convention and those that are not, the Committee proposes that the of Appeal should be able to declare that a decision is only recognised or enforceable in part. In the assessment of the Committee no statutory amendments or supplementary provisions are required concerning the enforcement procedure itself. Cooperation, exchange of information and central authority under the 1996 Hague Convention A very important condition for the optimal functioning of the 1996 Hague Convention is good cooperation between the authorities of the Contracting States and an exchange of information between them. The Convention therefore contains several provisions on this subject. The II Regulation also contains provisions on cooperation, but when the 1996 Hague Convention is applicable the Conventions rules shall be used. The Convention stipulates that the Contracting States shall designate a central authority. The central authority has certain tasks that can be carried out either by the central authority itself or through other authorities or bodies. The provision of information on Swedish legislation, the facilitation of agreed solutions by mediation, conciliation or similar means and assistance in discovering the whereabouts of a child in are examples of such tasks. has considered what authority in should be designated as the central authority and has come to the conclusion that responsibility for discharging this task should reside with the Government Offices. The Committee considers that the tasks of the central authority do not require any supplementary provisions. With respect to the question of conciliation, the Committee finds that, pending other international work on conciliation services (the directive being drafted in the EU on certain aspects of conciliation in civil matters), the existing possibilities are sufficient to meet the requirements of the Convention. The Convention also contains provisions about the commu- nication of data and information between central authorities or other authorities in the Contracting States. This can apply to a request by a for a report on the situation of a child with habitual in or a request to take measures for the protection of the child. proposes that the social welfare committee also be competent to handle such a request. In addition, an authority in a that is considering measures has a possibility of requesting that an authority in another communicate relevant information. When it is a Swedish authority that is considering measures, the view of the Committee is that it is the authority that is considering measures that should also ask the question. When the question comes from a foreign authority it is the Swedish authority that has the relevant information that is competent to handle such a request. If a child is exposed to serious danger, the relevant Swedish authorities shall inform the authorities in another where the child is present about the danger and the measures taken or under consideration. A parent who is resident in and who is seeking to obtain or maintain access with his/her child who is habitually resident in another may request that Swedish authorities information or evidence about the parent. The authority may also make a finding on the parents suitability to exercise access and on the conditions under which access could be exercised. proposes that the social welfare committee also be competent to process such a request. Thus a Swedish authority that is determining an issue of access may also receive corresponding information concerning a parent and a corresponding finding from the authorities of another . The Swedish authority is then obliged to consider this information in deciding the issue of access. It is generally the case that transmission of information to a foreign authority can be prevented by current Swedish secrecy provisions. Information subject to secrecy may not be communicated to a foreign authority unless the information is communicated in accordance with a special provision in an act or ordinance or if the information in a corresponding case would be communicated to a Swedish authority and the authority communi- cating the information deems that it is clearly compatible with Swedish interests for the information to be communicated to the does not consider that there is reason to expand the possibilities of communicating information subject to secrecy compared with what is already possible under current Swedish legislation. Under the Act (1998:204) transferring personal data to a country that is not a member of the EU or part of Economic Area (EEA) is prohibited as a general rule if the country does not have an adequate level of protection of personal data. This could result in problems in the application of the cooperation provisions of the 1996 Hague Convention. As the protection of individual personal integrity is well catered for through current secrecy provisions the Committee proposes a provision permitting the transfer of personal data to a third country notwithstanding the provisions of the Act. General provisions and final of the 1996 Hague Convention The 1996 Hague Convention also contains provisions of a more administrative nature and provisions directed more at states than at the individual person or competent authority applying the Convention. For instance, there is a provision under which the authorities in the childs state of habitual may issue certificates. Such a certificate can indicate in what capacity a person has parental responsibility for a child and what powers the person has. proposes that the Government be able to issue regulations concerning such certificates. The Convention also contains provisions on the treatment of personal data and on confidentiality. The treatment of personal data is in line with the Act. Under the provision on confidentiality, Swedish authorities shall ensure the confidentiality of information they receive in accordance with Swedish law. proposes that a provision be introduced in the Secrecy Act (1980:100) enabling a court to order secrecy in cases under the Convention for information about the personal and economic circumstances of private individuals if a party requests this and it can be assumed that the individual or someone close to him will suffer loss or be otherwise harmed if the information is disclosed. If the information comes from a foreign authority it is proposed that no request has to be made by a party. This proposal should also apply to delivery of information in cases under the II Regulation. also proposes that the Government be authorised to issue regulations on the translation of documents to be sent to foreign authorities. For instance, in certain cases it can be justified to have a party meet the costs of the translation. The Convention contains two possibilities of making reservations. One applies to language and allows to make a reservation against the use of French or English, but not both, in communications to Swedish authorities. proposes that the possibility of reserving against the use of French language be used. Such a reservation is also being considered by and . The Convention is of broad scope and in many respects it encourages direct contact between authorities. In many cases matters can require speedy decisions.