Opinion of the Economic and Social Committee on the "Proposal for a Council Regulation on jurisdiction and the recognition and enforcement of judgements in matters of parental responsibility"

(2002/C 80/09)

On 3 October 2001, the Council decided to consult the Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 19 December 2001. The rapporteur was Mrs Carroll, the co-rapporteurs were Mr Retureau and Mrs zu Eulenburg.

At its 387th plenary session (meeting of 16 January 2002), the Economic and Social Committee adopted the following opinion by 89 votes to 0 with 5 abstentions.

1. Introduction

1.1. The background to the proposals

1.1.1. Given the increase in movement within the EU, there has been a concomitant increase in the number of marital and other family relationships between citizens and residents of EU Member States. Unfortunately, in the event of divorce, separation or annulment, disputes arise between parents and guardians of children as to the exercise of parental authority, custody and rights of access to children. While divorces and legal separations appear in statistics, there are none on the breakdown of non-marital unions.

1.1.2. These disputes give rise to a limited, but not negligible number of cases of child abduction both to other Member States or third countries by parents or other relatives of a child. Even where there has been no forceful abduction, rights to access may be compromised by the fears of parents or guardians with custody that, if they allow a child to leave their own jurisdiction, it will be difficult or impossible for them to enforce that judgement if the child fails to return. This is to the detriment of both the child and the other parent.

1.2. Existing legal provisions - EU instruments

1.2.1. The Brussels Convention of 27 September 1968 (Brussels I) on jurisdiction and the enforcement of judgements in civil and commercial matters did not cover issues relating to personal law, such as matrimonial breakdown and the resultant civil issues, including parental responsibility for and custody of or access to children.

1.2.2. The Brussels Convention of 28 May 1998 on jurisdiction, recognition and enforcement of judgements in matrimonial matters provided for limited mutual recognition and enforcement of judgements on parental responsibility and custody of and access to children. This Convention did not enter into force, however, and its provisions were, to a large extent, taken over in the Brussels II Regulation.

1.2.3. Council Regulation (EC) No 1347/2000 on jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility for children of both spouses is directly applicable in the Member States and came into force on 1 March, 2001. It does not apply in Denmark (which exercised its opt-out). The Committee gave its opinion on this proposal in October 1999(1).

1.3. Important extra-EU instruments

1.3.1. The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, 1996 is not yet in force. The Hague Convention on the Civil Aspects of International Child Abduction 1980 is in force in all Member States. It has as its aims the prompt return of children up to age 18 years wrongfully removed to or retained in any Contracting State and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. The Commission will shortly adopt a proposal for regulation applicable to the Member States, on how to ratify the Convention and the European Court of Justice will interpret it.

1.4. Major weaknesses of existing provisions

1.4.1. The Hague Convention 1996 is not yet in force and while an EU regulation governing the matters covered by the 1996 Convention will be useful, most of the problems arise with countries outside the EU.

1.4.1.1. Under Regulation (EC) No 1347/2000, matters of parental responsibility are only covered insofar as they form part of matrimonial proceedings (i.e., divorce, separation, annulment proceedings, etc.). Once the court seised with the case hands down its final judgement on the substantive issues, the Regulation no longer applies. There is one partial exception to this rule: although the substantive issues may have been determined by the court, until parental responsibility issues which form part of matrimonial proceedings have been adjudged, the court keeps its jurisdiction.

Regulation (EC) No 1347/2000 covers both biological and adopted children of a married couple but not the children of one or other of the spouses from a previous union. Non-marital children are not covered. Statistics show that, in 1998, 26 % of all children born in the EU were born outside marriage and that this figure had been steadily rising over a long period.

1.5. Initiatives to improve the situation

1.5.1. Initiative of the French Republic

1.5.1.1. The French Republic, in July 2000, proposed a Regulation, to complete Regulation (EC) No 1347/2000, aimed at facilitating, through the abolition of exequatur, the exercise of cross-border rights of access in the case of children of divorced or separated couples, aged up to 16 years. The Committee gave a favourable opinion on this proposal in October, 2000(2).

1.6. Further EU actions

1.6.1. Article 34 of the Conclusions of the Tampere Council of October 1999 paved the way for further action in this area.

1.6.2. The Justice and Home Affairs Council meeting on 30 November 2000, adopted a programme for the progressive abolition of exequatur in four areas of work: (I) Brussels I; (II) Brussels II and family situations arising through relationships other than marriage; (III) rights in property arising out of a matrimonial relationship and the property consequences of the separation of an unmarried couple; and (IV) wills and succession.

1.6.3. The current draft Regulation completes Regulation (EC) No 1347/2000 and applies to all judicial decisions on parental responsibility, thus allowing all children to benefit from these rules. The draft Regulation sets up a clear and coherent set of rules for attributing jurisdiction and a mechanism for cooperation between courts and central authorities. The ultimate objective is the abolition of exequatur before a decision taken in one Member State can be enforced in another Member State. Although taking account of the provisions of the 1996 Hague Convention and, in particular of the 1980 Hague Convention, it nevertheless creates a set of rules adapted to the EU aim of establishing a genuine judicial area based on the principle of mutual recognition of judicial decisions (Tampere).

1.6.4. The Commission will soon adopt a regulation on ratification of the 1996 Hague Convention by the Member States, in order to address situations that transcend the boundaries of the Community.

1.6.5. The current draft Regulation is to be read together with the French initiative for abolition of exequatur for decisions on rights of access. Read together, Regulation (EC) No 1347/2000, the French initiative and this draft Regulation implement the first stage of area 2 of the programme of mutual recognition.

2. Comments on the proposals

2.1. The wide scope of the draft Regulation is welcomed, in that it applies not only to court proceedings but also to proceedings officially recognised in a Member State as equivalent to judicial proceedings. Denmark will not implement this Directive but it is part of the Nordic area agreement. The Committee hopes that the Irish and United Kingdom will decide to exercise their opt-ins and implement this regulation so that as wide a geographic coverage as possible is achieved. A judgement given in a Member State covered by the Regulation must be recognised and enforced in the other Member States in accordance with the relevant provisions of Regulation (EC) No 1347/2000, Chapter III. Member States ratifying the accompanying Convention should encourage all other countries to ratify, so as to ensure a common legal position vis-à-vis third countries. They should also encourage third-country ratification of the 1996 Convention.

2.2. The definition of "holder of parental responsibility" ensures that the new Regulation will cover as many children as possible, regardless of their status or that of their parents/guardians. The draft Regulation also makes provision for refugee and stateless children. This is to be very much welcomed.

2.3. The scope of Article 1 should be as wide as possible. The jurisdiction of a court in matters of parental responsibility for a child is based on the habitual residence of the child (Article 3). Limited provisions are made for continuing jurisdiction of a Member State in which the last judgement on parental responsibility was made (Article 4) and for emergencies (Article 9), all of which will be useful. Generally, these provisions simplify matters.

2.4. The child abduction provisions of the draft Regulation are based on those of the 1980 Hague Convention. Courts with jurisdiction within the meaning of Article 3 (see 2.3 above) must exercise it in conformity with that Convention. Certain exceptions to this general rule are, however, provided for, which simplify the provisions on jurisdiction. It is possible that other countries may seek different interpretations than those established under EU law, so there may be some conflicts of law. Given, however, that the 1980 Convention has already been ratified by the Member States, it is not at first sight clear why there should be a need to lay down new rules in the Regulations. If these rules are adopted, the exceptions must be spelt out clearly to avoid giving rise to legal disputes. Why has the definition of "wrongful removal" been taken over verbatim from the 1980 Convention, whilst the "exceptions" are defined only by reference?

2.5. The Committee welcomes the commencement of approval of the 1996 Hague Convention (taken into account in the current draft Regulation) but is also pleased to note that the Commission envisages rules specific to the needs of the EU as a whole, which will take precedence over the Convention rules.

2.6. The Committee is pleased that the draft Regulation takes account of the best interests of the child but regrets that the child's right to be heard is included in the draft only indirectly by reference to Regulation (EC) No 1347/2000. Given that children up to the age of 18 years are covered, this is a significant omission and it should be expressly provided for in the draft. The Committee strongly urges that specific provision requiring judges and/or administrative bodies to take full account of the right to be heard of all children who are capable of expressing a rational opinion on the issues involved.

2.7. The issue of costs is only partially addressed. The high cost of Court proceedings and of tracing a child may deter many from seeking enforcement of a judgement. Account should be taken by the Commission of existing judgements under the Convention on Human Rights on such issues, e.g. Airey v Ireland and Johansen v Norway. Justice must be accessible to all. The Committee is of the opinion that holders of parental responsibility should be entitled to legal aid when pursuing cases in this area. Conditions for assessing entitlement to legal aid should be realistic and up-to-date and decisions on its grant should be speedy. The term "legal aid" has different meanings in different Member States and, for the sake of clarity, national provisions on legal aid should distinguish between advice, consultation and representation

2.8. Provision should also be made for the apportionment of costs between Central Authorities, in relation to the tracing and return of children to their place of habitual residence. If such costs are to be levied on the parties, they should be levied only on a party which has been wilfully at fault. Failure to make provision for apportionment of costs may result in Central Authorities not pursuing specific cases with the necessary vigour.

2.9. Once this draft and the French initiative have been decided upon, the Committee recommends strongly that all (and not just parts) of the three instruments should be consolidated in order to clarify and make more coherent and consistent jurisdictional questions and procedures as far as possible. It is understood that this will probably happen in the first half of 2002.

2.10. If the Regulation and its accompanying instruments are to achieve their objective of deterring wrongful abductions of children and preventing and resolving disputes about access to and custody of children, information to parties to access/custody arrangements will need information on (a) the existence of the provisions and (b) of the procedural requirements to be complied with.

2.11. The Committee understands that experience of cooperation between central authorities in parental responsibility cases under Regulation (EC) No 1347/2000 has not been entirely satisfactory. In its supervisory capacity, the Commission should concentrate on improving the depth and quality of co-operation through the European Judicial Network.

2.12. The Regulations should specify that Central Authorities may be involved in specific cases, for example, either directly or through public authorities or other bodies.

2.13. The Committee is aware that Central Bodies will not have access to all support services required in cross-border cases. They should take full advantage of the expert services which can be brought in to support them in seeking for and providing for the best interests of individual abducted children.

2.14. Mediation in family disputes is desirable and important and the Committee notes that it is a function of the central authorities to promote agreement between holders of parental responsibility, which can only be of benefit to the children concerned. In order to prevent the abuse of mediation procedures with the aim of obstructing and ultimately preventing the institution of legal proceedings, this Regulation and the provisions to implement the 1996 Hague Convention, should provide that, where mediation has been tried and has failed, any relevant time limit should:

a) run from the date on which mediation has been shown to have failed, or

b) be extended by the period of mediation,

whichever is applicable.

3. Abandonment of and abuse of parental responsibility

3.1. The current proposal and other measures related to it deal only with parental authority within the general context of breakdown of a marital or similar relationship.

3.2. The Committee considers that a significant problem exists within the European Union (although sometimes emanating from without) of:

a) abandonment of children, and

b) abuse of parental authority (including abandonment of care of a child), to the extent of endangering the child's future or, indeed, its health and life,

in cases where no judicial decision has ever been made as to custody or control of the children concerned.

3.3. The Committee, therefore, requests the Commission to consider this issue, by means of research into the problem and appropriate action based upon the results, with the aim of producing child-centred measures.

Brussels, 16 January 2002.

The President

of the Economic and Social Committee

Göke Frerichs

(1) Opinion on the Proposal for a Council Regulation (EC on jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility for joint children (OJ C 368, 20.12.1999).

(2) Opinion on the Initiative of the French Republic with a view to adopting a Council Regulation on the mutual enforcement of judgements on rights of access to children (OJ C 14, 16.1.2001).