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"
Date: 2000-10-19
Institutions: European Economic and Social Committee
Subjects: EU Member State, custody, divorce, judicial cooperation in criminal matters in the EU, jurisdiction, mutual recognition principle

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III. CONCLUSION

It is likely, indeed probable, that the adoption of a ‘social
agenda’ would represent a water-shed, rather than just another

stage in the construction of Europe. This is shown by the
Commission’s document. The Committee’s present and future
wish is to train the spotlight on this new trajectory and to help
make it as successful as possible.

Brussels, 19 October 2000.

The President

of the Economic and Social Committee

Göke FRERICHS

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 Rodrı´guez Garcı´a 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
for a Council Regulation on the mutual
on a proposal
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.

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.

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.

1.3.
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:

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

— 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;

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— The Brussels Convention of 28 May 1998 on jurisdiction,
judgments in matri-

recognition and enforcement of
monial matters.

mentioned Brussels Convention of 1998 — commonly
referred to as ‘Brussels II’ — of which it extends the scope and
adapts certain provisions.

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, recog-
nition, 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.
inter-
Since the Treaty of Amsterdam, matters of
national 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.

The ESC recently adopted an opinion (2) on the pro-
1.6.
posal 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 jurisdic-
tion, recognition and enforcement of judgments relating to the
ties and custody of children.
dissolution of matrimonial
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-

(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.

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 Regu-
lation (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).

(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).

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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 (1).
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).

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).

2.4.
An action brought before the courts of the Member
to prevent
State in which a child is habitually resident
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.

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.

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.

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).

Proceedings for the establishment of grounds for non-recog-
nition 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

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.

(1) 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.

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.

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2.8.
The Commission is to submit a report to the European
Parliament, the Council and the Economic and Social Com-
mittee, 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

3.3.
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 circum-
stances, 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.

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 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.

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.

3.4.
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.

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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
in the form of Regulation (EC) No
standardised manner,
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

Brussels, 19 October 2000.

takes account of the child’s psychological development and
level of understanding, as well as of the relative independence
of adolescents.

international conventions.

The Committee considers this threshold to be appropriate,
even if minors (generally persons under 18) are deemed to be
children by various
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
family law is only
excessive overcautiousness, and that
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.

The President

of the Economic and Social Committee

Göke FRERICHS