Opinion of the Economic and Social Committee on the "Initiative of the French Republic with a view to adopting a Council Regulation on the mutual enforcement of judgments on rights of access to children"

(2001/C 14/17)

On 27 July 2000 the Council decided to consult the Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-mentioned initiative.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 3 October 2000. The rapporteur was Mr Retureau and the co-rapporteurs were Mr Burnel and Mr Rodríguez García Caro.

At its 376th plenary session of 19 October 2000 the Economic and Social Committee adopted the following opinion with 106 votes in favour, one vote against and one abstention.

The Council has consulted the Economic and Social Committee on a proposal for a Council Regulation on the mutual enforcement of judgments on rights of access to children. This proposal, instigated by France, contributes to the gradual reinforcement of judicial cooperation in civil matters and its communitisation.

1. Introduction: judicial cooperation and the internal market

1.1. The internal market and the principle of freedom of movement create a need for judgments on civil and commercial matters given in one Member State to be recognised and enforced in another Member State, in the interests of legal certainty with regard to financial transactions, contracts, and the movement of persons, goods and capital.

1.2. One of the effects of the free movement of persons in the internal market is the creation of family relations between nationals or residents of different countries, between whom disputes may arise, particularly in the event of divorce, with regard to the exercise of parental authority, custody and rights of access to children. It is essential that judgments on such disputes given in one Member State be recognised and enforced in the other Member States by the competent judicial and administrative authorities.

1.3. The political will of states to reinforce the mutual recognition of judgments, particularly in civil matters, was clearly expressed in paragraph 34 of the conclusions of the Tampere European Council (15 and 16 October 1999). The proposal for a Regulation on rights of access to children is a direct result of this.

1.4. Various conventions between states have been drawn up on this subject, in accordance with the law of international conventions, the main two European ones being:

- The Brussels Convention of 27 September 1968 on Jurisdiction and the enforcement of judgments in civil and commercial matters and the Luxembourg Protocol of 3 June 1971 on the Interpretation of this convention by the European Court of Justice;

- The Brussels Convention of 28 May 1998 on jurisdiction, recognition and enforcement of judgments in matrimonial matters.

Mention must also be made of the Hague Convention of 25 October 1980 on the Civil aspects of international child abduction (particularly Article 13); the Hague Convention of 19 October 1996(1) on Jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children; and the Council of Europe's European Convention on Recognition and enforcement of decisions concerning custody of children and on restoration of custody of children of 20 May 1980, which constitute the relevant international instruments in the area of family law, as well as the United Nations 1990 Convention on the Rights of the Child.

1.5. Since the Treaty of Amsterdam, matters of international private family law come under the first pillar, specifically the area of judicial cooperation in civil matters (Article 65) and the new Title IV of the EC Treaty. The proposed regulation must therefore be adopted in accordance with the procedure laid down in Article 67, whereby the Council takes a decision by unanimity. The Council has the right of initiative in civil matters for a period of five years dating from the entry into force of the Amsterdam Treaty on 1 May 1999.

1.6. The ESC recently adopted an opinion(2) on the proposal for a Council Regulation (EC) on Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for joint children (COM(1999) 220 final - 99/0110 CNS).

Regulation (EC) No 1347/2000 was finally adopted on 29 May 2000(3). It will enter into force on 1 March 2001(4). The choice of a regulation was justified by the need for standardised rules, which could be directly applied in the areas of jurisdiction, recognition and enforcement of judgments relating to the dissolution of matrimonial ties and custody of children. Definitions of legal concepts and the scope of the text can be found in the above-mentioned opinion. This regulation constitutes the application at Community level of the above-mentioned Brussels Convention of 1998 - commonly referred to as "Brussels II" - of which it extends the scope and adapts certain provisions.

1.7. The regulation is limited in scope; it is solely concerned with civil proceedings relating to divorce, legal separation or marriage annulment, and proceedings relating to parental responsibility for minor children of both spouses (parental authority, custody, access rights, alimony, etc.).

1.8. The Committee notes in this respect that insufficient attention has thus far been paid at Community level to the concept of families in general and de facto or "natural" families in particular, despite the fact that the latter are an important fact of life in most Member States and that an increasing number of children are today born to unmarried parents(5). The Committee urges Community institutions to include this issue in their work programme - particularly the Commission, in its programme of measures for mutual recognition which it is preparing for the end of the year.

1.9. The Committee considers it a matter of urgency to align rules regarding jurisdiction and recognition of judgments concerning de facto families with those which exist for de jure families, particularly in the interests of children.

2. Analysis of the content of the draft regulation on the mutual enforcement of judgments on rights of access to children

2.1. This draft regulation, submitted to the Council on the initiative of France, is still under discussion at the Council. The Parliament will debate the regulation at the same time as the Committee.

2.2. The proposed regulation is a derogation from Regulation (EC) No 1347/2000 with a very narrow focus: the exercise of rights of access to children under 16 in a Member State other than the Member State having ordered the other parent to grant these rights, including the right to take a child for a limited period of time to a place other than the child's habitual residence (Chapter I, Scope).

2.3. The draft Regulation would remove the need for access rights granted in accordance with a judgment, as defined in Article 1 of Regulation (EC) No 1347/2000, given and enforceable (even provisionally) in a Member State to be enforced in another Member State by means of a special procedure; i.e. such rights would be directly enforceable(6). The state enforcing the judgment in accordance with the Regulation would employ the same means of enforcement as it would use in its own territory to enforce a similar judgment given by its own competent authorities (Chapter II, Mutual recognition of the enforceability of judgments on rights of access).

2.4. An action brought before the courts of the Member State in which a child is habitually resident to prevent enforcement of visiting rights (Chapter III) or the right to have the child to stay in another Member State may be upheld only in two cases:

a) where, owing to a change in circumstances since the initial judgment, the exercise of rights of access or rights to have a child to stay in another Member State would pose a serious, direct risk to the child's physical or psychological health;

b) where the judgment is irreconcilable with a judgment already enforceable in the territory of the Member State where the visit is to take place.

The procedure for making and serving the application for proceedings by the parent required to grant rights of access, in which he or she challenges the exercise of those rights by the other parent, shall be governed by the law of the Member State of residence of the parent with rights of access.

Proceedings for the establishment of grounds for non-recognition or full or partial non-enforcement of a judgment will result in suspension of enforcement only if a judgment to that effect already exists which has become res judicata.

Proceedings commenced by the parent required to grant rights of access, in the two cases in which non-enforcement is possible, will be dealt with under an emergency procedure in which both parties are heard, as well as the child in some cases, if appropriate, having regard to the circumstances and to the child's understanding. The corresponding judgment shall be given by the competent appeal court within eight days of the date on which the parent with rights of access made his or her submissions regarding the application lodged by the parent required to grant these rights. The judgment will be enforceable even if an appeal against the judgment is pending (i.e. the appeal is not a stay).

2.5. Although the competent authority of the state in which the child is staying may arrange for immediate, provisional protection of the child in the event of an overriding need, that authority may not take jurisdiction to amend the judgment which is being enforced (Chapter IV, Amendment of the order).

2.6. Chapter V deals with the return of the child. The basic principle is that at the end of the period of access specified in the judgment of the country of origin, the child is to be returned to the parent with custody. If the child is not returned, the parent with custody may apply to the competent central body - either that of the country where the child is staying or that of the child's habitual residence - for the child's prompt return.

The competent authorities of the Member State where the child is staying must then order the prompt return of the child; the parent with rights of access is not entitled to challenge the order, even by invoking proceedings in progress, a judgment given - or likely to be given - in his or her state, or the Hague Convention, in the alleged interests of the child.

2.7. Lastly, the proposal deals with cooperation between Member States (Chapter VI) as well as the monitoring of the application of the regulation and any future modifications (Chapter VII, final provisions).

States are to cooperate with each other via the competent central bodies they designate, to ensure the effective exercise of rights of access and to guarantee the child's return at the end of his or her stay. They are to protect the child's interests and the respective rights of the parents, inter alia by compelling parents, if necessary, to respect their obligations.

The authorities are to exchange information on the law of their states, on the child's background and any other information necessary for carrying out their work, including information on any difficulties they may encounter.

Anyone who has obtained a judgment in his or her favour and who is encountering difficulties in exercising his or her rights may apply to these authorities, producing documentary evidence of these rights, as detailed in Article 13 of the draft regulation.

2.8. The Commission is to submit a report to the European Parliament, the Council and the Economic and Social Committee, five years after the entry into force of the regulation, accompanied, if need be, by proposals for modifying or adapting the regulation. The central bodies are to cooperate on the report.

Member States are to provide the Commission with full information on the central bodies, the courts, the competent national authorities and the means of obtaining redress set out in the annexes to the regulation.

The central bodies will meet periodically at the Council's headquarters to exchange experience and seek solutions to any practical or legal problems which they encounter in the framework of their cooperation and in the implementation of the regulation. A report will be drawn up after each meeting for the attention of the Member States and the Commission.

3. General comments

3.1. The Committee notes that the proposal for a Council Regulation constitutes a derogation from Chapter III, Section 2 ("Enforcement") of Regulation (EC) No 1347/2000, but only with regard to the exercise of rights of access or rights to have a child to stay which have been granted in a judgment given in application of Article 1.

The Committee believes this derogation to be justified in that it allows the interests of the children concerned to be better taken into account. For it is in the child's interest to maintain regular relations with the parent who does not have custody but who has been granted rights of access and rights to have the child to stay in a judgment which has become res judicata. It is also in the parent's interest to maintain relations with his or her child(ren), regardless of where the parent or the child(ren) live in the EU (with the exception of those countries not bound by the regulation - see footnotes p. 83 and p. 84). A continued direct relationship between a parent and child who live apart makes a vital contribution to the child's education and the development of his or her personality.

3.2. In the Committee's view, this proposal for a regulation aims to facilitate the exercise of rights of access or rights to have a child to stay; at the same time it ensures that the child does not become hostage to a dispute between his or her parents, living in different Member States; that the parent with rights of access does not use legal proceedings or delaying tactics, for example, to challenge the judgment in which the nature and limits of his or her rights with regard to the child are specified; and that the parent with custody cannot take action of a similar kind to avoid meeting his or her own obligations.

3.3. The provisions for challenging the exercise of rights of access and the corresponding proceedings (Articles 4 to 8), and the implicit recognition of the right of the state in which the child is staying to take appropriate measures to protect the child and his or her physical and psychological health (Article 9) appear to provide sufficient guarantees for the child's protection. Enforcement of rights of access may only be prevented in cases where, owing to a change in circumstances, the exercise of these rights would pose a serious, direct risk to the child's physical or psychological health. Similarly, in cases where an irreconcilable judgment which has become res judicata exists in the country in which the child is to stay, the parent who has custody may refuse to send the child to that country. At the same time, the fact that any challenge to the exercise of rights of access is dealt with under an emergency procedure precludes any delaying tactics and prevents the proceedings becoming an unjustified long-term obstacle to the exercise of these rights, while ensuring the protection of the child's interests should the proceedings prove to be justified.

The Committee is therefore satisfied in general with these provisions for safeguarding the overriding interests of the child, as well as the rights of his or her parents, who have access to rapid means of redress which respect the rule that both parties shall be heard.

The Committee calls, however, for the right of the child to be heard by the judge to be interpreted as broadly as possible, and for the judge to be required to take account of what the child says; furthermore, the child should have the right to his or her own legal representation in order to safeguard his or her specific interests.

3.4. In the Committee's view, the proposal also has the advantage of furthering judicial cooperation in parental and family matters, and in particular it helps to increase trust in the judicial institutions and law of all the Member States and to enhance compliance with judgments given by the competent authorities on matters of rights of access or rights to have a child to stay, concerning the joint children of separated spouses who live in different Member States.

This regulation, which despite its limited scope is important in human terms for both children and their parents, serves to further awareness of Community issues and citizenship in Europe, whilst aligning family law and procedures, mainly through the cooperation it sets in motion, but also through the promotion of greater mutual understanding on the thorny and complex issues of international private law.

3.5. The Committee therefore endorses the spirit and aim of the draft regulation, and it hopes that the final text will not differ substantially from the draft. The Committee intends to monitor closely the progress of this issue and the follow-up activities resulting from the adoption of the proposed regulation.

4. Specific comments

4.1. With regard to the references to relevant international public law, the Committee believes that it is justifiable for Community law to develop in a manner conducive to the gradual convergence, alignment or standardisation - as appropriate - of the law of the Member States, in accordance with the Treaties and the commitment of the Member States to forming a Union based on law and democracy, cooperation and peace. In relation to existing international law, the Union, is an entity which is sui generis or unique, with its own channels, constantly evolving, both spatially and temporally.

Because of this specific feature, the relevant negotiators should seek to obtain in the international treaties they ratify or to which they accede, as often as necessary, an opt-out clause which respects the autonomy and precedence of Community law to which the Member States are subject. In other words, the approach adopted when applying the 1998 Brussels Convention within the Community in an appropriate and standardised manner, in the form of Regulation (EC) No 1347/2000 - which is not an exact copy of the Convention but is adapted to the Community and its specific legal, cultural and social features - should become a general principle, which is recognised by the non-Community states which are party to the same international conventions.

4.2. The Committee considers that setting an age limit of 16 for children concerned by the application of the regulation takes account of the child's psychological development and level of understanding, as well as of the relative independence of adolescents.

The Committee considers this threshold to be appropriate, even if minors (generally persons under 18) are deemed to be children by various international conventions. In most countries minors of 16 can be declared as being of age by the person(s) having parental authority, which shows that the law acknowledges that these adolescents are capable of making their own decisions in life and managing their own interests, whether material (for example for the purposes of managing assets or running a business), psychological or emotional.

The Committee notes that a legal discrepancy could exist regarding children aged between 16 and 18; in the absence of any specific provision, Regulation (EC) No 1347/2000 would apply to them.

4.3. Finally, the Committee deeply regrets that the current state of cooperation in civil matters is characterised by excessive overcautiousness, and that family law is only addressed in a limited manner, for example so that the rights of the de facto family and the children of such families are not recognised and implemented within the Community framework.

It is to be hoped that this situation will be remedied very quickly, in the interests of equity, a realistic approach to developments in society, and the principle of equal rights and obligations for all citizens of the Union.

Brussels, 19 October 2000.

The President

of the Economic and Social Committee

Göke Frerichs

(1) This new convention has not yet entered into force on account of the insufficient number of ratifications.

(2) Opinion of 20 October 1999, rapporteur Mr Braghin, OJ C 368, 20.12.1999.

(3) OJ L 160, 30.6.2000.

(4) Denmark is neither bound by nor subject to the application of Regulation (EC) No 1347/2000 of 29 May 2000, in accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the EU Treaty and the EC Treaty. Ireland and the United Kingdom have chosen to be bound by the Regulation and to be subject to its application. The particular situation of these countries is a result of Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the EU Treaty and the EC Treaty, under which they can choose whether or not to be bound.

(5) Information report (own-initiative) by rapporteur Mr Burnel (CES 930/1999 fin) of 16 April 2000 on The demographic situation in the EU and future prospects; see also Statistics in Focus, Theme 3 - 10/200, published by Eurostat: First results of the demographic data collection for 1999 in Europe, Table 3: Fertility, which shows that in 1998 26 % of all children born in the EU were born outside marriage and that this figure has been steadily rising over a long period (9.6 % in 1980).

(6) Denmark will not be bound by any future Regulation; Ireland and the United Kingdom will give notice in due course of whether they agree or refuse to be bound.