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
Date: 2000-08-15
Institutions: France
Subjects: EU Member State, application of EU law, child, custody, divorced person, family law

15.8.2000

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Official Journal of the European Communities

C 234/7

II

(Preparatory Acts)

COUNCIL

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

(2000/C 234/08)

THE COUNCIL OF THE EUROPEAN UNION,

couples whose divorce or
granted in the Community.

legal

separation has been

Having regard to the Treaty establishing the European
Community, and in particular Article 61(c) and Article 67(1)
thereof,

Having regard to the initiative from the French Republic,

Having regard to the Opinion of the European Parliament (1),

(5) Children of separated couples will not be able to move
more freely within the Union until judgments relating to
them are able to move more freely, which will be brought
about by mutual recognition of the enforceability of these
judgments and a strengthening of cooperation mech-
anisms.

Having regard to the Opinion of the Economic and Social
Committee (2),

(6) This is a subject now falling within the ambit of Article

65 of the Treaty.

Whereas:

security

(1) The Member States have set themselves the objective of
maintaining and developing the Union as an area of
freedom,
free
movement of persons is assured. To establish such an
area gradually the Community is
to adopt, among
others, the measures in the field of judicial cooperation
in civil matters needed for the proper functioning of the
internal market.

in which the

and justice,

(2) The European Council meeting in Tampere on 15 and 16
October 1999 highlighted the need to establish a genuine
European judicial area in which, amongst other things,
judgments relating to rights of access in the case of the
children of
separated or divorced couples would be
directly enforceable in the Member States.

ties, a child’s

(3) In the event of the loosening or the dissolution of matri-
monial
to maintain
regular contact with both parents must be able to be
guaranteed, whatever the parents’ place of establishment
in the Community.

fundamental

right

(7) In accordance with the principles of subsidiarity and
proportionality as set out in Article 5 of the Treaty, the
objectives of
sufficiently
achieved by the Member States and can therefore be
better achieved by the Community. This Regulation does
not go beyond what
is necessary to achieve those
objectives.

this Regulation cannot be

(8) Judgments covered by this Regulation must have been
given in proceedings referred to in Article 1(1)(b) of
Council Regulation (EC) No . . ./2000 on jurisdiction
and the recognition and enforcement of
judgments in
matrimonial matters and in matters of parental responsi-
bility for children of both spouses (3) (Brussels II).

(9) These judgments must also relate to cross-border rights of

access to children under 16 years of age.

(10) These judgments are covered by Regulation (EC) No
. . ./2000 (Brussels II), but this Regulation departs from
the Brussels II Regulation by laying down the principle
of mutual
the
judgments in question.

enforceability of

recognition of

the

(4) The proper functioning of the internal market entails the
need to improve and simplify the free movement of
judgments on the subject and the effective cross-border
exercise of rights of access in the case of the children of

(11) To balance the direct enforceability of these judgments in
all
there must be guarantees safe-
guarding the interests of both parents and of the child.

the Member States,

(1) OJ C . . .
(2) OJ C . . .

(3) OJ L . . .

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(12) There must be a single procedure enabling enforcement to
be suspended in exceptional circumstances where it would
put the child’s interests at serious risk or where there is
another enforceable judgment which is irreconcilable. In
judicata,
addition, a judgment which has become res
or
declaring
non-enforcement
(EC) No
. . ./2000 (Brussels II), will prevent rights of access being
enforced.

non-recognition

to Regulation

pursuant

grounds

for

(13) The interests of the parent with custody must also be
safeguarded. Such parents must be able to have a
guarantee that the child will return after its stay abroad,
which means, firstly, that apart from any urgent need to
the Member State
protect the child, the authorities of
where the child is staying may not
take jurisdiction
during the child’s stay to amend the foreign judgment
which is being enforced and secondly, that they should
have circumscribed powers to order the child’s return.

(14) The objectives of

this Regulation also necessitate the
establishment of close cooperation between the central
bodies
implementing mutual adminis-
responsible for
trative and judicial assistance.

(15) To ensure compliance with the judgments referred to in
this Regulation,
the central bodies are to exchange
information and use any means at their disposal under
the internal
law of their States to encourage voluntary
exercise of rights of access or to guarantee enforcement
of those rights by recourse to coercive means.

(16) The central bodies must be accessible to the parents
concerned, whether they are claiming rights of access or
are required to grant them.

(17) The Commission is to report on the application of this
Regulation, with a view to proposing any necessary adap-
tations. Information forwarded to it by the central bodies
will assist it in this task.

(18) The Commission should be able to amend the Annexes to
the Regulation,
courts,
competent authorities and redress procedures, on the
basis of information forwarded by the Member States.

concerning

bodies,

central

(19) The central bodies will meet

regularly to exchange

experience.

(20) The United Kingdom and Ireland,

in accordance with
Article 3 of the Protocol on the position of the United
Kingdom and Ireland annexed to the Treaty on European
Union and
European
Community, are not participating in the adoption of
this Regulation and are therefore not bound by it nor
subject to its application.

the Treaty

establishing

the

(21) Denmark,

in accordance with Articles 1 and 2 of the
Protocol on the position of Denmark annexed to the
Treaty on European Union and the Treaty establishing
the European Community,
is not participating in the
adoption of this Regulation and is therefore not bound
by it nor subject to its application,

HAS ADOPTED THIS REGULATION:

CHAPTER I

Scope

Article 1

1.
This Regulation shall apply to any judgment given in a
Member State in proceedings referred to in Article 1(1)(b) of
Regulation (EC) No . . ./2000 (Brussels II) granting rights of
access to one of the parents to one of their children when:

(a) these rights of access are to be exercised in the territory of
a Member State other than that of the authorities which
granted them; and

(b) the child is under 16 years of age when enforcement of the

judgment is sought.

2.
The rights of access referred to paragraph 1 include the
right to take a child for a limited period of time to a place
other than the child’s habitual residence.

3.
For the purposes of this Regulation, the term (cid:145)Member
State(cid:146) shall mean all Member States with the exception of (. . .).

CHAPTER II

Mutual recognition of the enforceability of judgments on
rights of access

Article 2

By way of derogation from Article 21 of Regulation (EC) No
. . ./2000 (Brussels II), a judgment referred to in Article 1 of
this Regulation which has been given in a Member State and is
enforceable in that Member State, even provisionally, can be
enforced in all the other Member States without any special
procedure being required.

Article 3

the enforceability of a judgment given in
Recognition of
another Member State shall enable the same means of
enforcement to be employed, under the same conditions, as
would be available for a judgment of the same nature which
would be enforceable in the Member State of recognition after
being given by the authorities of that State.

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CHAPTER III

Article 8

Refusal to enforce rights of access

Article 4

The judgment on the application challenging the exercise of
rights of access may be appealed against only by means of the
proceedings referred to in Annex III.

Enforcement of a judgment referred to in Article 1 may not be
suspended in another Member State unless the parent with
custody of the child establishes,
in proceedings provided for
in Article 6, that:

(a) owing to a change in circumstances, exercise of rights of
access or rights to have a child to stay for a limited period
would pose a serious, direct risk to the child’s physical or
psychological health; or

(b) the judgment

is irreconcilable with a judgment already

enforceable in the territory of that Member State.

Article 5

of

In particular, enforcement may not be suspended by the
1.
institution
or
enforcement of all or part of a judgment given in civil
proceedings referred to in Article 1(1) of Regulation (EC) No
. . ./2000 (Brussels II).

proceedings

recognition

challenging

2. Without prejudice to Article 4, only a judgment which
has become res judicata declaring that there are grounds for
non-recognition or non-enforcement of a judgment referred
to in paragraph 1 shall prevent enforcement of rights of access.

Article 6

The proceedings challenging the exercise of rights of access or
rights to have a child to stay for a limited period provided for
in Article 4 shall be brought before the courts of the Member
State in which the child is habitually resident, as listed in
Annex II.

Article 7

The procedure for making and serving the application
the Member State of

1.
shall be governed by the law of
residence of the parent with rights of access.

2.
Judgments shall be given by an emergency procedure in
which both parties are heard as well as, if necessary, the child,
if appropriate having regard to the circumstances and to the
child’s understanding.

3.
The judgment shall be given within eight days at the
most of the date on which the person with rights of access
made his or her submissions known. It shall be enforceable
notwithstanding exercise of the right of appeal provided for
in Article 8.

CHAPTER IV

Amendment of the order

Article 9

Notwithstanding any overriding need to organise immediate,
provisional protection of the child’s person where this cannot
be done by the authorities of the child’s habitual residence, the
length of the child’s stay in another Member State pursuant to
a judgment referred to in Article 1 does not authorise any
authority in that State to take jurisdiction to amend the
judgment which is being enforced.

CHAPTER V

Prompt return of the child

Article 10

If the child is not returned to the parent with custody at the
end of the period of access and stay set out in the judgment
referred to in Article 1, the parent with custody may apply for
the child’s prompt return to the central body referred to in
Article 12 of the Member State of the place of his or her
habitual residence or of the place where the child is staying.

Article 11

The competent authorities of
the State where the child is
staying shall order the prompt return of the child without
the person with rights of access being able to challenge the
order,
in particular by invoking proceedings referred to in
Article 5, the existence of a judgment granting him or her
custody given in that State or likely to be recognised in that
State, or Article 13 of the Hague Convention of 25 October
1980 on the Civil Aspects of International Child Abduction.

CHAPTER VI

Cooperation

Article 12

1. Member States shall cooperate with each other via the
national central bodies which they designate and which are
listed in Annex I to ensure the effective exercise of rights of
access to children and their prompt return to the parent with
custody at the end of the access period.

2.
To that end, those bodies shall cooperate with each other
directly to promote cooperation between the competent auth-
orities in their respective territories.

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In particular, either directly or through any intermediary,

3.
those bodies shall take appropriate measures to:

(a) exchange information on the child’s background;

Article 15

1.
Not later than . . . (*), the Commission shall submit to the
European Parliament, the Council and the Economic and Social
Committee a report on the application of this Regulation.

(b) facilitate the voluntary exercise of rights of access;

2.
The report referred to in paragraph 1 shall be accom-
panied if need be by proposals for adapting the Regulation.

(c) facilitate any parental agreement on the exercise of rights of
access by conciliation, mediation or any other similar
means;

(d) initiate or facilitate, in accordance with the rules applicable
in each Member State,
the institution of any relevant
proceedings and recourse to coercive means provided for
by their national law in the event of a clear refusal to allow
rights of access or to return the child to the parent with
custody at the end of the access period;

(e) exchange between themselves information on the law of

their States on the application of this Regulation;

3. With a view to drawing up the report referred to in
the Commission may ask the central bodies
paragraph 2,
referred to in Article 12 to send it
information on the
application of this Regulation. The central bodies may also
forward such information to the Commission of their own
accord.

Article 16

Member States shall forward to the Commission the texts of
any of their internal provisions amending either the desig-
nation of the central bodies referred to in Annex I, or the
courts, competent authorities and redress procedures set out
in Annexes II and III.

(f) keep each other informed of any difficulties encountered in

applying this Regulation.

The Commission
accordingly.

shall

adopt

the Annexes

concerned

Article 13

Article 17

1.
Anyone who has obtained a judgment referred to in
Article 1 and who is encountering difficulties in exercising
the
his or her
rights may apply to the central body of
the
Member State of his or her place of residence or of
child’s place of residence.

1.
The central bodies referred to in Article 12 shall meet to
exchange experience and seek solutions to any practical or
legal problems which they encounter in the framework of
the cooperation established by this Regulation.

In support of his application he shall produce the

2.
following documents:

Each Member State shall appoint a representative to

2.
attend the meetings referred to in paragraph 1.

(a) a copy of

the judgment which satisfies the conditions

necessary to establish its authenticity;

(b) the form provided for in Annex V to Regulation (EC) No
. . ./2000 (Brussels II), duly completed, certifying that the
judgment is enforceable in accordance with the law of the
Member State of origin and that it has been served on the
parent against whom enforcement is sought.

CHAPTER VII

Final provisions

Article 14

The provisions of Council Regulation (EC) No . . ./2000
(Brussels
referred to in
Article 1, save where otherwise provided by this Regulation.

shall apply to the judgments

II)

3.
The central bodies shall meet for the first time in the
three months following entry into force of this Regulation.
They shall subsequently meet regularly on an ad hoc basis,
normally once a year, depending on need, at the invitation of
the Council Presidency, which shall also take Member States’
wishes into consideration.

The meetings shall be held in Brussels, at the Council’s

4.
headquarters, in accordance with its rules of procedure.

A report shall be drawn up on each meeting and

5.
forwarded to the Member States and the Commission.

Article 18

This Regulation shall enter into force on . . .

(*) Five years after the entry into force of this Regulation.

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This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance
with the Treaty establishing the European Community.

Done at Brussels, . . .

For the Council

The President

. . .

ANNEX I

List of national central bodies (Article 12)

(cid:151) In Belgium:

(. . .)

List of courts and authorities competent to rule on proceedings suspending enforcement (Articles 4 and 6)

ANNEX II

(cid:151) In Belgium:

(. . .)

(cid:151) In Belgium:

(. . .)

ANNEX III

Proceedings provided for in Article 8