WRITTEN QUESTION E-1887/00

by Olivier Dupuis (TDI) to the Commission

(9 June 2000)

Subject: Infringement of the New York Convention on the rights of the child

On 25 September 1999, Lucio Congiu settled in Italy with his twin sons, Antoine and Charles, after their mother had left the family home at La Bastidonne, France, leaving the two children with their father, to whom she was not married. Subsequently, the children's mother applied to a French family court; the court decided to issue an international arrest warrant for Mr Congiu on 26 September 1999, on the grounds of refusing to hand back the children, although there had been no previous proceedings giving the mother custody of the children or visiting rights. On 30 November 1999 the French family court judged the father guilty of kidnapping and declared that he had forfeited his rights as a father. And although the children were then returned to their mother, the court decided to pursue the case and requested that Mr Congiu be extradited for child abduction.

The scale of the judicial resources deployed in this case to settle a dispute between parents over the custody of children is a clear infringement of the New York International Convention on the rights of the child.

Does the Commission not consider it necessary, in the light of its new powers under the Treaty of Amsterdam, to make an effort to persuade the Member States involved in this case to respect their international undertakings and review the decisions concerning Mr Congiu? More generally, does the Commission not think that it should take action urgently to prevent already difficult situations becoming even more problematic because parents are nationals of different Member States?

Answer given by Mr Vitorino on behalf of the Commission

(25 July 2000)

The Commission would point out to the Honourable Member that it cannot express its views either on the case in question or on the judgments delivered vis-à-vis the person mentioned.

Moreover, the new provisions of the EC Treaty do not give the Commission the authority to make representations to the Member States concerned, namely France and Italy, with a view to amending the decisions taken. It is exclusively for the person in question to exercise his lawful rights, to present his defence de facto and de iure before the courts concerned and, where necessary, to appeal against the decisions taken.

The Commission shares the Honourable Member's concern as regards the need to bear in mind the United Nations Convention on the Rights of the Child, and in particular Article 9 thereof, which expressly provides that the child has the right to maintain personal relations and direct contact with both parents on a regular basis.

At present, however, the Commission does not envisage proposing Community rules on child abduction. All the Member States are already party to the Hague Convention of 1980 on the civil aspects of international child abduction. The main aims of the Convention are to organise cooperation within a network of designated central authorities, to secure the prompt return of children wrongfully removed or detained in a Contracting State and to ensure that rights of custody and access under the law of one Contracting State are enforced in the other Contracting States. There is also a 1980 Council of Europe Convention on Recognition and Enforcement of Decisions concerning Custody of Children and Restoration of Custody of Children, to which Italy and France are Contracting Parties. In addition, the Council of Europe is preparing a convention on contacts with children, which proposes operational rules for the implementation of Article 9 of the above United Nations Convention.

At the specifically Community level, the Regulation of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters provides that rights of access and custody recognised or granted by the authorities of one Member State to parents of children of both spouses in the event of the dissolution of matrimonial ties are to be recognised and enforced in other Member States. Further progress is foreseeable and one day decisions taken in another Member State, in particular with regard to parental responsibility, may be enforced promptly and without formalities, albeit subject to guarantees.

Rights of custody and access are determined by the competent national authorities acting under the Community rules, international instruments or international private law. It is for each Member State to decide if and how the right of custody or access is to be granted to one or other of the parents and what civil or criminal penalties are to be applied should one of the parents fail to respect these rights.