Commission working document - Mutual recognition of decisions on parental responsibility
Date: 2001-03-27
Institutions: European Commission
Subjects: action programme, child care, judicial cooperation, mutual recognition principle, parental responsibility

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 27.3.2001
COM(2001) 166 final

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The Community has set the objective of creating a genuine judicial area where decisions taken in
a Member State are recognized and enforced throughout the European Union.

In the family law area, this free circulation of decisions has a direct impact on the daily life of
people. All the more so nowadays that family links are increasingly formed between nationals or
residents of different Member States and family members increasingly choose to live in different
parts of the European Union following family breakup. &RXQFLO(cid:3)5HJXODWLRQ(cid:3)(cid:20)(cid:22)(cid:23)(cid:26)(cid:18)(cid:21)(cid:19)(cid:19)(cid:19)(cid:3)RI(cid:3)(cid:21)(cid:28)(cid:3)0D\
(cid:21)(cid:19)(cid:19)(cid:19)(cid:3)RQ(cid:3)MXULVGLFWLRQ(cid:3)DQG(cid:3)WKH(cid:3)UHFRJQLWLRQ(cid:3)DQG(cid:3)HQIRUFHPHQW(cid:3)RI(cid:3)MXGJPHQWV(cid:3)LQ(cid:3)PDWULPRQLDO(cid:3)PDWWHUV
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provides  for  the  mutual  recognition  of  certain  judgments  issued  at  the  time  of  divorce  or
separation.  However,  first,  its  scope  is  limited,  and  second,  the  H[HTXDWXU  procedure  is  still
required before a judgment rendered in one Member State can be enforced in another.

The  Justice  and  Home  Affairs  Council  meeting  on  30  November  2000  adopted  an  ambitious
program aimed at the abolition of the H[HTXDWXU procedure in the civil and commercial law area.
In the family law area the program includes, already at its first stage, an extension of the scope of
the Brussels II Regulation coupled with a specific project for the abolition of H[HTXDWXU for rights
of access.

On the same occasion, the Council concluded that work on a French initiative for the abolition of
H[HTXDWXU for rights of access could proceed only in parallel with the extension of the scope of
the Brussels II Regulation. This will guarantee equality of treatment for all children, thus taking
into account social realities, such as the diversification of family structures.

This  working  document  sets  out  a  number  of  preliminary  considerations  for  implementing  the
first stage  of  the  program  of  mutual  recognition in the family  law  area  as  well  as  for  allowing
work to continue on the initiative on rights of access. Section 2 traces the development of judicial
cooperation in matters of parental responsibility under the EC Treaty, while Section 3 gives an
overview  of  the  international  framework  and  discusses  in  particular  the  implications  of  a
Community  accession  to  the  1996  Hague  Convention  on  parental  responsibility.  Section  4
discusses  the  extension  of  the  scope  of  the  Brussels  II  Regulation,  the  requisite  rules  on
jurisdiction, and a number of related issues and substantive considerations. Some final remarks
situating the extension of the Brussels II Regulation in the context of the Commission’s work in
the area are provided in Section 5.

The aim is to present a Commission proposal for a regulation on parental responsibility.

2

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December 1998 – Vienna Action Plan

The Member States had already recognized with the Treaty of Maastricht that justice and home
affairs are matters of common concern.  But,  measures in  this  area  were to  take  at the time  the
form of international conventions that had to be agreed unanimously by the Member States and
ratified by national parliaments.

The  European  Council  meeting  in  Vienna  in  December  1998  endorsed  an  action  plan  on
establishing  an  area  of  freedom,  security  and  justice  to  prepare  for  the  entry  into  force  of  the
provisions of the Treaty of Amsterdam relating, LQWHU(cid:3)DOLD, to judicial cooperation in civil matters.
The Vienna action plan was aimed at giving people throughout the EU a common sense of justice
through  the  easy  identification  of  the  competent  jurisdiction,  the  clear  designation  of  the
applicable  law,  and  the  availability  of  speedy  and  fair  proceedings  and  effective  enforcement
procedures.

May 1999 - Treaty of Amsterdam

The Treaty of Amsterdam, which entered into force on 1 May 1999, represented a breakthrough
in providing for the use of Community mechanisms for certain key policies in the area of justice
and  home  affairs,  including  judicial  cooperation  in  civil  matters.  This  transfer  of  the  area  of
judicial cooperation in civil matters from the third to the first pillar opened new possibilities for
accelerating and deepening work in the area.

In  order  to  establish progressively  an  area  of freedom,  security  and justice,  the  Council  adopts
measures in the field of judicial cooperation in civil matters having cross-border implications and
insofar as necessary for the proper functioning of the internal market.1 These  measures include
improving and simplifying the recognition and enforcement of decisions in civil and commercial
cases  as  well  as  promoting  the  compatibility  of  the  applicable  rules  in  the  Member  States
concerning the conflict of laws and of jurisdiction.2

October 1999 - Tampere milestones

The European Council meeting at Tampere in October 1999 set out a series of milestones for the
creation of a genuine area of freedom, security and justice in the European Union. The European
Commission was requested to keep a ‘scoreboard’ listing the objectives and action planned and
taken  on  each  point.  For  the  establishment  of  a  genuine  judicial  area,  the  European  Council
endorsed  the  principle  of  mutual  recognition  of  judicial  decisions,  which  “should  become  the
cornerstone  of  judicial  cooperation  in  both  civil  and  criminal  matters  within  the  Union”,3  and
advocated greater convergence in civil law. In particular,

1 

2 

3 

7UHDW\(cid:3) HVWDEOLVKLQJ(cid:3) WKH(cid:3) (XURSHDQ(cid:3) &RPPXQLW\  (“EC  Treaty”),  Title  IV  (visas,  asylum,  immigration
and other policies related to free movement of persons), Articles 61(c) and 65.  The application of this
Title is subject to Protocols on the position of the United Kingdom, Ireland and Denmark (Article 69).
During a transitional period of five years after the entry into force of the Treaty of  Amsterdam, the
Council acts unanimously on a proposal from the Commission or on the initiative of a Member State
after consulting the European Parliament (Article 67).  Unanimity for measures in the family law area
will continue to apply after the entry into force of the Treaty of Nice.
Conclusions of the Tampere European Council, Point 33.

3

                                                
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DVSHFWV(cid:3)RI(cid:3)FLYLO(cid:3)SURFHGXUDO(cid:3)ODZ(cid:17)·(cid:23)

May 2000 – The Brussels II Regulation

The  Brussels  II  Regulation  sets  out  rules  on  jurisdiction,  automatic  recognition  and  simplified
enforcement  of  judgments  in  matrimonial  matters  and  matters  of  parental  responsibility  for
children  of  both  spouses  (VHH  Annex  1).5  The  latter  were  added  only  at  a  later  stage  in  the
deliberations  to  take  into  account  the  jurisdiction  of  the  divorce  court  for  matters  of  parental
responsibility in many Member States.

With  respect  to  parental  responsibility,  the  scope  of  the  Brussels  II  Regulation  is  limited  to
judgments on parental responsibility for the children of both spouses rendered on the occasion of
the matrimonial proceedings. This means that the Regulation applies neither to family situations
arising through relationships other than marriage nor to judgments other than those taken at the
time  of  the  divorce  or  separation.  Moreover,  the  H[HTXDWXU  procedure  is  still  required  before  a
judgment rendered in one Member State can be enforced in another.

July 2000 – French initiative on rights of access

Building on the Brussels  II  Regulation,  France  presented on  3 July  2000  an  initiative  aimed  at
facilitating, through the abolition of H[HTXDWXU, the exercise of cross-border rights of access in the
case of children of divorced or separated couples. 6 In its original version, the initiative applied to
judgments falling under the Brussels II Regulation granting cross-border rights of access to one
of the parents to one of the children under 16 years of age.

This  initiative  for  a  regulation  is  based  on  the  principle  of  the  mutual  recognition  of  the
enforceability  of  certain  judgments  relating  to  rights  of  access,  which  should  be  distinguished

4 
5 

6 

Conclusions of the Tampere European Council, Point 34.
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FKLOGUHQ(cid:3) RI(cid:3) ERWK(cid:3) VSRXVHV,  OJ  2000  L160/19.    The  Council  had  drawn  up  on  28  May  1998  a
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and recommended it for adoption by the Member States (OJ 1998 C221/1) under Article K.3 of the
Maastricht Treaty.  However, the Member States could no longer ratify this Convention, as this would
amount to a breach of their duty of Community loyalty in view of the entry into force of the Treaty of
Amsterdam and especially since a proposal for a Community instrument was already on the table.  As
a result, the  content  of  the  Brussels  II  Regulation,  including  its  limited  scope,  has  to  a  large  extent
been  taken  over  from  the  1998  Convention  with  the  necessary  adaptations  to  the  new  institutional
framework.
Note that neither rights in property arising out of a matrimonial relationship nor wills and successions
have been covered by a Community instrument to date.
,QLWLDWLYH(cid:3) RI(cid:3) WKH(cid:3) )UHQFK(cid:3) 5HSXEOLF(cid:3) ZLWK(cid:3) D(cid:3) YLHZ(cid:3) WR(cid:3) DGRSWLQJ(cid:3) D(cid:3) &RXQFLO(cid:3) 5HJXODWLRQ(cid:3) RQ(cid:3) WKH(cid:3) PXWXDO
HQIRUFHPHQW(cid:3)RI(cid:3)MXGJPHQWV(cid:3)RQ(cid:3)ULJKWV(cid:3)RI(cid:3)DFFHVV(cid:3)WR(cid:3)FKLOGUHQ, OJ 2000 C234/7.  The French initiative is
based on Articles 61(c) and 65 of the EC Treaty.  The United Kingdom and Ireland have  indicated
their intention to participate in the initiative.

4

                                                
from enforcement itself. In fact, the abolition of H[HTXDWXU means that a special procedure in the
Member  State  of  enforcement  is  no  longer  required  before  proceeding  to  enforcement  itself.
Thus,  the  initiative  does  not  affect  enforcement,  which  is  carried  out  under  the  law  of  the
Member State of enforcement.

To  balance  the  direct  enforceability  of  these  judgments  in  all  Member  States,  the  initiative
introduces the following guarantees:

•  an  emergency  procedure  before  the  courts  of  the  Member  State  of  the  child’s  habitual
residence  enabling  enforceability  to  be  refused  in  exceptional  circumstances  (that  is,  where
enforcement  would  put  the  child’s  interests  at  serious  risk  or  where  there  is  another
enforceable judgment which is irreconcilable); and

•  a guarantee that the child will return after its stay abroad (this means, firstly, that apart from
any urgent  need  to protect  the  child,  the  authorities  of  the  Member  State  where the  child is
staying may not assume jurisdiction during the child’s stay to amend the foreign judgment that
is  being  enforced  and  secondly,  that  they  should  have  circumscribed  powers  to  order  the
child’s return).

A  strengthening  of  cooperation  mechanisms  already  in  place  under  the  Hague  Conventions
discussed  in  Section  3  is  provided  for the  purpose  of  exchanging  information,  encouraging  the
voluntary exercise of rights of access, as well as ultimately guaranteeing the enforcement of these
rights by recourse to coercive means.

The  initiative  represents  the  first  endeavor  to  abolish  H[HTXDWXU  in  a  limited,  albeit  sensitive,
field. However, the Justice and Home Affairs Council meeting on 30 November 2000 concluded
that, due to its limited scope, the initiative should be pursued further only in parallel with work
on extending the scope of the Brussels II Regulation so as to allow for equality of treatment for
all children.7 The Swedish Presidency has indicated that work will continue in both directions.

December 2000 – Program of mutual recognition

In  accordance  with  the  Tampere  conclusions,  the  Council  and  the  Commission  adopted  in
December 2000 a program of measures to implement the principle of mutual recognition in four
areas of work.8  For each area the aim is the progressive abolition of H[HTXDWXU in three stages,
which  may  be  accompanied  by  the  introduction  of  ancillary  horizontal  measures.    As  regards
parental responsibility, the latter may include the harmonization of choice of law rules as well as
considerations relating to the child’s best interests and his or her place in the procedure.

The table below reproduces the measures included in area II of the program.

7 

8 

In their opinions, the European Parliament and the Economic and Social Committee also questioned
the limited scope of the French initiative.
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1st stage:
–  abolition of H[HTXDWXU for judgments on rights of access

– 

instrument relating to family situations arising through relationships other than marriage

–  extension  of  the  scope  to  judgments  modifying  conditions  under  which  parental  responsibility  is

exercised, as fixed in judgments made at the time of divorce or separation

2nd stage:

–  application of simplified procedures of the Brussels I Regulation

–  provisional enforcement and protective measures
3rd stage:

–  across-the-board abolition of  H[HTXDWXU, in some areas in the form of a European  Enforcement  Order

that is directly enforceable in all Member States without any intermediate measures

December 2000 – Charter of Fundamental Rights of the EU

The &KDUWHU(cid:3)RI(cid:3))XQGDPHQWDO(cid:3)5LJKWV(cid:3)RI(cid:3)WKH(cid:3)(XURSHDQ(cid:3)8QLRQ was proclaimed at the Nice European
Council in December 2000.9  The rights contained in the EU Charter constitute a firm foundation
for  any  future  action  at  EU  level,  including  future  legislation  on  parental  responsibility.  In
particular, Article 24 of the EU Charter sets out a number of procedural and substantive rights of
the child, which have been inspired by the UN Convention mentioned in Section 3.1 (VHH Annex
4).

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The 1996 Hague Convention on parental responsibility

A new convention that has not entered into force to date, the (cid:20)(cid:28)(cid:28)(cid:25)(cid:3)+DJXH(cid:3)&RQYHQWLRQ(cid:3)RQ(cid:3)SDUHQWDO
UHVSRQVLELOLW\ (VHH Annex 2),10 is intended to replace, in relations between the Contracting States,
the (cid:20)(cid:28)(cid:25)(cid:20)(cid:3)+DJXH(cid:3)&RQYHQWLRQ(cid:3)RQ(cid:3)WKH(cid:3)SURWHFWLRQ(cid:3)RI(cid:3)PLQRUV.11  The 1996 Convention lays down rules
on  jurisdiction,  applicable  law,  recognition  and  enforcement  of  judgments  on  parental
responsibility,  including  rights  of  access.  Whereas  the  1961  Convention  gives  priority  to
nationality,  the  1996  Convention  is  based  on  the  jurisdiction  of  the  Contracting  State  of  the
habitual residence of the child.  The competent authority will in principle apply its internal law,
and may transfer the case to a court better placed to hear it.  Judgments benefit from automatic
recognition,  and  Contracting  States  must  provide  a  simple  and  rapid  H[HTXDWXU  procedure.  A
mechanism is set out for cooperation between designated authorities.

The fact that jurisdiction follows a change in the child’s habitual residence poses the risk of the
use of force to establish artificial jurisdictional links with a view to obtaining custody of a child.
To  dissuade  such  tactics,  both  the  Brussels  II  Regulation12  and  the  1996  Convention  give
precedence  to  the  most  successful  (cid:20)(cid:28)(cid:27)(cid:19)(cid:3) +DJXH(cid:3) &RQYHQWLRQ(cid:3) RQ(cid:3) LQWHUQDWLRQDO(cid:3) FKLOG(cid:3) DEGXFWLRQ,
which is in force in 36 States including all 15 Member States (VHH Annex 2). 13  The objective of
the 1980 Convention is the restoration of the status quo by means of the prompt return of children
wrongfully removed.14  To this end, the Convention establishes a system of cooperation among
authorities for the return of a child wrongfully removed as well as for the effective exercise of
custody and access rights.

However, the 1980 Convention also recognizes the need for certain exceptions to the obligation
to return the child, which must be narrowly construed.  Thus, Article 13(b) provides an exception
where there is a grave risk that return would expose the child to physical or psychological harm
or otherwise place him or her in an intolerable situation.  The French initiative on rights of access

10 

11 

;;;,9(cid:17)(cid:3) &RQYHQWLRQ(cid:3) RQ(cid:3) MXULVGLFWLRQ(cid:15)(cid:3) DSSOLFDEOH(cid:3) ODZ(cid:15)(cid:3) UHFRJQLWLRQ(cid:15)(cid:3) HQIRUFHPHQW(cid:3) DQG(cid:3) FR(cid:16)RSHUDWLRQ(cid:3) LQ
UHVSHFW(cid:3)RI(cid:3)SDUHQWDO(cid:3)UHVSRQVLELOLW\(cid:3)DQG(cid:3)PHDVXUHV(cid:3)IRU(cid:3)WKH(cid:3)SURWHFWLRQ(cid:3)RI(cid:3)FKLOGUHQ (concluded October 19,
1996) (“the 1996 Convention”).  To date the Netherlands are the only Member State to have signed
(but not ratified) the Convention.
;(cid:3)&RQYHQWLRQ(cid:3)FRQFHUQLQJ(cid:3)WKH(cid:3)SRZHUV(cid:3)RI(cid:3)DXWKRULWLHV(cid:3)DQG(cid:3)WKH(cid:3)ODZ(cid:3)DSSOLFDEOH(cid:3)LQ(cid:3)UHVSHFW(cid:3)RI(cid:3)WKH(cid:3)SURWHFWLRQ
RI(cid:3) PLQRUV  (concluded  October  5,  1961)  (“the  1961  Convention”).    In  force  in  Austria,  France,
Germany,  Italy,  Luxembourg,  the  Netherlands,  Portugal  and  Spain,  as  well  as  Poland,  Switzerland
and  Turkey.    The  1961  Convention  has  been  the  subject  of  criticisms  concerning  the  existence  of
competing  bases  of  jurisdiction  (nationality  and  habitual  residence),  the  inadequacy  of  cooperation
between authorities and the absence of provisions on enforcement.

13 

12  Article 4 of the Brussels II Regulation requires courts to exercise their jurisdiction in accordance with
the  1980  Convention,  in  particular  Articles  3  and  16  thereof.    This  means  that,  following  a  child
abduction,  it  is  the  court  of  the  child’s  lawful  habitual  residence  that  continues  to  be  entitled  to
exercise jurisdiction rather than the court of the child’s new ‘de facto’ residence.
;;9,,,(cid:17)(cid:3) &RQYHQWLRQ(cid:3) RQ(cid:3) WKH(cid:3) FLYLO(cid:3) DVSHFWV(cid:3) RI(cid:3) LQWHUQDWLRQDO(cid:3) FKLOG(cid:3) DEGXFWLRQ  (concluded  October  25,
1980).  A proposal has been tabled to commence work on a protocol related to the exercise of access
rights.
The removal or retention of a child is deemed wrongful where in breach of custody rights under the
law  of  the  State  in  which  the  child  was  habitually  resident  immediately  before  the  removal  or
retention.  Most importantly, these custody rights may arise, LQWHU(cid:3)DOLD, by operation of law, that is do
not require a judicial decision.

14 

7

                                                
was  in  part  a  response  to  the  problems  encountered  in  practice  with  Article  13(b),  whose
application is allegedly prone to abuse.

Other related international instruments

The  (XURSHDQ(cid:3) &RQYHQWLRQ(cid:3) RQ(cid:3) FXVWRG\(cid:3) RI(cid:3) FKLOGUHQ  also  addresses  the  problem  of  improper
removal through rules on recognition and enforcement of custody decisions (VHH Annex 3).15  A
three-tier system allows a progressively greater number of grounds of refusal to return the child.
The  Convention  has  been  ratified  by  all  Member  States,  albeit  with  reservations,  which
effectively result in the maximum number of grounds of refusal being applicable in all cases.

The  (XURSHDQ(cid:3) &RQYHQWLRQ(cid:3) RQ(cid:3) WKH(cid:3) OHJDO(cid:3) VWDWXV(cid:3) RI(cid:3) FKLOGUHQ(cid:3) ERUQ(cid:3) RXW(cid:3) RI(cid:3) ZHGORFN  aims  at
progressively  bringing  the  legal  status  of  children  born  out  of  wedlock  into  line  with  that  of
children born in wedlock.16

Towards a body of substantive and procedural rights for children

In  addition  to  the  above-mentioned  instruments  aimed  at  facilitating  recognition  and
enforcement,  there  is  a  growing  trend  towards  recognition  of  children  as  bearers  of  a  body  of
both substantive and procedural rights, as exemplified by the (cid:20)(cid:28)(cid:27)(cid:28)(cid:3)81(cid:3)&RQYHQWLRQ(cid:3)RQ(cid:3)WKH(cid:3)ULJKWV
RI(cid:3)WKH(cid:3)FKLOG (VHH Annex 4).17  As already indicated, an article on the rights of the child has been
incorporated in the EU Charter.

One should also mention the on-going work in the Council of Europe on D(cid:3)GUDIW(cid:3)&RQYHQWLRQ(cid:3)RQ
FRQWDFW(cid:3)FRQFHUQLQJ(cid:3)FKLOGUHQ.18  This draft Convention lays down a number of general principles,
such  as  a  child’s  right  to  maintain  contact  with  both  parents,  and  provides  for  appropriate
safeguards  and  guarantees,  which  may  include  a  mechanism  for  recognition/enforceability  in
advance  of  contact,  as  well  as  financial  guarantees  or  undertakings.    A  system  of  cooperation
between authorities is envisaged, where authorities would be empowered not only to ensure the
return of the child, but also to fix or modify the conditions for the exercise of rights of access.

The basic premise behind these substantive rights is that the ‘best interests of the child’ should be
a primary consideration in all decisions affecting him or her.19  Moreover, a child has the right to
maintain regular contact with both parents, unless that is contrary to the child’s best interests.20
As regards the procedure, children have the right to be heard in all proceedings affecting them in
accordance with their age and maturity.21  The (XURSHDQ(cid:3)&RQYHQWLRQ(cid:3)RQ(cid:3)WKH(cid:3)H[HUFLVH(cid:3)RI(cid:3)FKLOGUHQ¶V
ULJKWV (VHH Annex 3) further provides for the right of the child to apply for the appointment of a
special  representative,  where  the  holders  of  parental  responsibility  are  precluded  from
representing him or her.22

15 

16 

(XURSHDQ(cid:3) &RQYHQWLRQ(cid:3) RQ(cid:3) UHFRJQLWLRQ(cid:3) DQG(cid:3) HQIRUFHPHQW(cid:3) RI(cid:3) GHFLVLRQV(cid:3) FRQFHUQLQJ(cid:3) FXVWRG\(cid:3) RI(cid:3) FKLOGUHQ
DQG(cid:3)RQ(cid:3)UHVWRUDWLRQ(cid:3)RI(cid:3)FXVWRG\(cid:3)RI(cid:3)FKLOGUHQ(cid:3)(Luxembourg, 20-5-1980).
(XURSHDQ(cid:3)&RQYHQWLRQ(cid:3)RQ(cid:3)WKH(cid:3)OHJDO(cid:3)VWDWXV(cid:3)RI(cid:3)FKLOGUHQ(cid:3)ERUQ(cid:3)RXW(cid:3)RI(cid:3)ZHGORFN (Strasbourg, 15-10-1975).
In force in eight Member States.

17  8QLWHG(cid:3)1DWLRQV(cid:3)&RQYHQWLRQ(cid:3)RQ(cid:3)WKH(cid:3)ULJKWV(cid:3)RI(cid:3)WKH(cid:3)FKLOG, November 20, 1989 (“the UN Convention”).
18 

To  the  extent  that  this  draft  Convention  affects  the  Brussels  II  Regulation,  the  possibility  of
Community accession must be envisaged.

19  Article 3 of the UN Convention and Article 24(2) of the EU Charter.
20  Article 9 of the UN Convention and Article 24(3) of the EU Charter.
21  Article 12 of the UN Convention and Article 24(1) of the EU Charter.
22 

(XURSHDQ(cid:3)&RQYHQWLRQ(cid:3)RQ(cid:3)WKH(cid:3)H[HUFLVH(cid:3)RI(cid:3)FKLOGUHQ¶V(cid:3)ULJKWV (Strasbourg, 25-1-1996), Article 4.

8

                                                
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,PSOLFDWLRQV(cid:3)RI(cid:3)D(cid:3)SRVVLEOH(cid:3)&RPPXQLW\(cid:3)DFFHVVLRQ(cid:3)WR(cid:3)WKH(cid:3)(cid:20)(cid:28)(cid:28)(cid:25)(cid:3)&RQYHQWLRQ

In accordance with the AETR case law of the Court of Justice on external competence,23 Member
States  are  no  longer  free  to  accede  on  their  own  to  the  1996  Convention  to  the  extent  that  its
provisions  on  jurisdiction  and  enforcement  affect  Community  rules  (that  is,  the  Brussels  II
Regulation).24  As a result, the Convention is a mixed agreement to which the Member States and
the Community can only both accede.

Consultations  took  place  during  their  negotiation  aimed  at  ensuring  the  harmonious  interplay
between  the  1996  Convention  and  the  future  Brussels  II  Convention  concluded  in  1998  after
which  the  Brussels  II  Regulation  was  subsequently  tailored.    First,  in  addition  to  the  habitual
residence of the child, a concurrent basis of jurisdiction of the divorce court was introduced in
Article 10 of the 1996 Convention, which essentially corresponds to Article 3(2) of the Brussels
II Regulation.25  Second, Article 52 of the 1996 Convention, the so-called disconnection clause,
authorizes Contracting States to conclude agreements in respect of children habitually resident in
any of the States parties to such agreements.26

As regards a possible Community accession to the 1996 Convention, the following options may
be envisaged:

–  (a) accession to the 1996 Convention

This  option  recognizes  the  effort  already  put  in  the  negotiations  and  the  value  of  a  coherent
international  framework  to  address  problems  of  parental  responsibility  that  often  transcend  the
boundaries  of  the  EC.27    However,  the  Community  as  such  was  not  involved  in  these
negotiations,  whose  aim  was  to  reconcile  two  international conventions (Brussels  II  was  at  the
time a third pillar instrument).  Although care was admittedly exercised to take into account the
then existing state of development of EU law, the 1996 Convention effectively limits the scope of
future  Community  action  with  respect  to  children  non-resident  in  the  EC.    And  should  the
Community, after accession, wish to cover non-resident children as it further develops its policy
in the area (VHH Section 4.3 on this issue), it may be placed in the delicate position of having to

23   Case 22//70, &RPPLVVLRQ(cid:3)Y(cid:17)(cid:3)&RXQFLO (1971) ECR 263.  In a series of cases beginning with the AETR
case, the Court of Justice developed the theory of implied external competence, namely that when the
Community has acted to implement a common policy, the Member States no longer have the right to
take external action in an area which would affect that common policy.  Where competence is shared
between the Community and the Member States, the international agreement is a ‘mixed agreement’,
which will apply in its entirety only if both become parties.
The  Brussels  II  Regulation  mandates  the  recognition  of  all  judgments,  including  those  based  on
residual jurisdiction under Article 8, but also takes into account any international commitments of the
Member State of recognition: Article 15(f) provides that a later judgment in the non-Member State of
the habitual residence of the child constitutes a ground of non-recognition if it fulfils the conditions
for recognition in the Member State of recognition.  In addition, Article 16 provides that, on the basis
of  an  international  agreement,  a  Member  State  may  not  recognize  a  judgment  founded  on  residual
jurisdiction.

24 

25  Note that Article 10 of the 1996 Convention introduces two additional requirements: the consent of a
third  person  having  parental  responsibility,  and  one  parent  being  habitually  resident  in  the  divorce
State at the commencement of proceedings.
To such agreements are assimilated uniform laws based on special ties of a regional or other nature.
The  need  to  reinforce  judicial  co-operation  in  matters  of  parental  responsibility  also  arises  in  the
context  of  relations  with  countries  which  do  not  participate  in  the  Hague  framework,  and  may  be
addressed in the relevant regional fora,  for  instance  in  the  Barcelona  process  for  the  Mediterranean
countries.

26 
27 

9

                                                
denounce the Convention, if its provisions can no longer be reconciled with future Community
policy.

Given that the Community is not a member of the Hague Conference at present, this option also
assumes that the technical difficulties associated with accession can be overcome, for instance by
means of a protocol to the Convention(cid:17)

–  (b) re-negotiation of the 1996 Convention

The  Community  may  request  a  reexamination  of  the  provisions  of  the  Convention  before  it
commits itself.  Two options are possible: (1) Such re-negotiation may be limited to Article 52,
so as to allow for immediate commitment of the Community internationally on the basis of the
agreed text, while leaving policy development at Community level unhindered.  Alternatively, (2)
the  Community  may  seek  to  renegotiate  the  substantive  provisions  of  the  Convention  to  the
extent that these rules do not adequately address the Community concerns.

A  reexamination  of  the  substantive  provisions  of  the  1996  Convention  would  entail  an
assessment of whether the simplicity of a rule based solely on the habitual residence of the child
may in certain cases produce results considered unsatisfactory.  For example, consider the case
where a child who has been raised by his parents in a Member State (which is also the Member
State  of  their  nationality)  has  recently  moved  with  his  or  her  grandparents  retired  in  a  third
country, and as a result the Member State concerned is deprived from assuming jurisdiction even
for measures of parental responsibility which will be exercised in its territory.

To  the  extent  that  a  reexamination  of  either  Article  52  or  the  substantive  provisions  of  the
Convention is  no  longer  possible  or  does  not  produce  a  successful  outcome,  this  option  would
preclude  accession  to  the  1996  Convention.    This  would  also  raise  the  issue  of  the  continued
application of the 1961 Convention in half of the Member States.28

A  final  caveat:  Irrespective  of  the  position  to  be  taken  on  accession  by  the  Community  to  the
1996 Convention, one should bear in mind that such accession cannot suffice in itself neither for
guaranteeing equality of treatment for all children as mandated by the Council nor for attaining
the requisite degree of simplification of recognition and enforcement in a common judicial area.
The  1996  Convention  may  nonetheless  serve  as  an  inspiration  for  Community  rules  on
jurisdiction (VHH Section 4.3).

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ZKLFK(cid:3)DUH(cid:3)FRYHUHG(cid:3)E\(cid:3)WKH(cid:3)%UXVVHOV(cid:3),,(cid:3)5HJXODWLRQ(cid:17)(cid:3)(cid:3)$V(cid:3)D(cid:3)UHVXOW(cid:15)(cid:3)WKH(cid:3)(cid:20)(cid:28)(cid:28)(cid:25)(cid:3)&RQYHQWLRQ
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*LYHQ(cid:3)WKH(cid:3)OLPLWV(cid:3)LW(cid:3)ZRXOG(cid:3) SODFH(cid:3) RQ(cid:3)IXWXUH(cid:3) &RPPXQLW\(cid:3) DFWLRQ(cid:15)(cid:3)WKH(cid:3)LPSOLFDWLRQV(cid:3) RI(cid:3)D
SRVVLEOH(cid:3)&RPPXQLW\(cid:3)DFFHVVLRQ(cid:3)WR(cid:3)WKH(cid:3)(cid:20)(cid:28)(cid:28)(cid:25)(cid:3)&RQYHQWLRQ(cid:3)PXVW(cid:3)EH(cid:3)FDUHIXOO\(cid:3)FRQVLGHUHG(cid:17)

If the Community does not accede to the 1996 Convention, the 1961 Convention will remain in force
for  those  Member  States  that  have  ratified  it.    To  the  extent,  however,  that  the  application  of  the
Convention is not limited to children who are habitually resident in a Contracting State, the priority to
the Member State of a child’s nationality may not be consistent in certain cases with the Brussels II
Regulation.

10

                                                
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The  Justice  and  Home  Affairs  Council  adopted  in  November  2000  the  program  of  mutual
recognition,  which  clearly  identifies  the  end  result,  that  is  the  abolition  of  H[HTXDWXU  for  the
Brussels  II  Regulation  as  extended  to  family  situations  not  already  covered  and  to  judgments
modifying an original judgment.  On the same occasion, it became clear that views differed on
the  next  step  towards  this  agreed  end  result.    In  particular,  the  Council  expressed  strong
reservations  on  the  abolition  of  H[HTXDWXU  for  decisions  on  rights  of  access  as  provided  in  the
French  initiative,  if  this  were not accompanied  by  an  extension  of  the  scope  of  the  Brussels  II
Regulation so as to ensure equality of treatment for all children.

A  revised  version  of  the  French  initiative  presented  in  December  2000  leaves  its  scope  open
pending  completion  of  work  on  extending  the  scope  of  the  Brussels  II  Regulation.    Hence  the
need to accelerate our work in this area.  To this end, a number of preliminary considerations are
set out below.

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5HJXODWLRQ

 !(cid:3)E\(cid:3)PHDQV(cid:3)RI(cid:3)DQ(cid:3)DPHQGPHQW(cid:3)WR(cid:3)WKH(cid:3)%UXVVHOV(cid:3),,(cid:3)5HJXODWLRQ(cid:3)RU(cid:3)D(cid:3)QHZ(cid:3)UHJXODWLRQ"

As regards the question of form, there are obvious merits to a single instrument bringing together
all  aspects  relating  to  parental  responsibility.    In  any  case,  the  degree  of  mutual  recognition
already  achieved  in  the  Brussels  II  Regulation  should  apply  as  a  minimum  to  all  decisions
forming part of the extended scope.

Setting for the time being the purely formal question of whether the agreed extension should take
the form of an amendment to the Brussels II Regulation or the adoption of a new regulation (that
would build on the Brussels II Regulation provisions on parental responsibility), as well as how
the  initiative  on  rights  of  access  would  then  be  positioned,  the  following  elements  should  be
addressed:

 !(cid:3)ZKDW(cid:3)W\SHV(cid:3)RI(cid:3)GHFLVLRQV(cid:3)VKRXOG(cid:3)EH(cid:3)FRYHUHG"(cid:3)(cid:11)IRUP(cid:3)RI(cid:3)GHFLVLRQV(cid:12)

The  term  ‘civil  proceedings’  in  the  Brussels  II  Regulation  encompasses  not  only  judicial
proceedings, but also proceedings before all competent authorities in conformity with the law of
the  Member  State  where  the  proceeding  takes  place.29    In  addition  to  decisions  of  judicial  or
administrative authorities, the Brussels II Regulation considers as equivalent to ‘judgments’ (1)
documents  that  have  been  formally  drawn  up  or  registered  as  authentic  instruments  and  are
enforceable in one Member State, and (2) settlements that have been approved by a court in the
course of proceedings and are enforceable in the Member State where they were concluded.30

Query whether the extension of the scope to decisions on parental responsibility de-linked from
the  matrimonial  proceedings  mandates  in  favor  of  taking  into  account  other  types  of  private
agreements,  whether  or  not  sanctioned  by  authority,  as  long  as  they  are  enforceable  in  the
Member State where they were concluded.

29  Article 1 of the Brussels II Regulation.
30  Article 13(3) of the Brussels II Regulation.

12

                                                
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With respect to the content of decisions, the scope cannot be extended only for purposes of the
French initiative (that is, decisions on rights of access of one parent).  Instead, the mechanisms of
the Brussels II Regulation should become available for all decisions on parental responsibility, as
planned for the first step in the mutual recognition program.

Also, a number of options are possible with a view to abolishing the link made in the Brussels II
Regulation  between  the  decision  on  parental  responsibility  and  the  matrimonial  proceedings,
ranging from the broadest to the more specific:

–  all decisions (whether or not related to family breakup)

–  decisions related to family breakup (whether after or at the time of breakup)

–  decisions  taken  on  the  occasion  of  divorce  or  separation  (the  Brussels  II  Regulation)  and

decisions modifying these decisions31

–  decisions taken at the time of divorce or separation (the Brussels II Regulation)

The first option would presumably best serve the aim of the program of mutual recognition to de-
link the decision on parental responsibility from the matrimonial proceedings.

 !(cid:3)ZKLFK(cid:3)FKLOGUHQ(cid:3)VKRXOG(cid:3)EH(cid:3)FRYHUHG"

The provisions of the Brussels II Regulation apply to children of both spouses, while the French
initiative is further limited to children under 16 years of age.  The age limit issue is a substantive
consideration addressed in the context of the recognition of a child’s autonomy (VHH Section 4.5
below).

On the first matter, if the scope is limited to ‘decisions  related to  family  breakup’, these  could
conceivably involve only ‘children of the family’, including e.g. the children of one spouse from
a  previous  marriage.    However,  the  mandate  of  the  Council  is  unequivocal  on  this  point.    The
regulation should cover all children, irrespective of their family situation and background.  Once
the  judgment  on  parental  responsibility  has  been  fully  de-linked  from  the  matrimonial
proceedings,  the  extension  to  children  of  one  of  the  spouses  is  better  dealt  with  as  part  of  the
question concerning  the persons exercising  parental  responsibility  or  granted  access  rights  (VHH
below).

 !(cid:3)ZKR(cid:3)PD\(cid:3)H[HUFLVH(cid:3)SDUHQWDO(cid:3)UHVSRQVLELOLW\(cid:3)RU(cid:3)EH(cid:3)JUDQWHG(cid:3)DFFHVV(cid:3)ULJKWV"

This issue is not expressly addressed in the Brussels II Regulation,32 while the French initiative
was limited to rights of access exercised “by one of the parents”.  However, some Member States

31 

The  present  reflection  document  deals  solely  with  decisions  on  parental  responsibility.    A  possible
extension  of  the  scope  of  the  Brussels  II  Regulation  to  take  into  account  the  breakup  of  family
structures other than  marriage (the degree of recognition of such structures  may  differ  considerably
from one Member State to another) is therefore not under consideration.  In fact, once the decision on
parental responsibility has been de-linked from family breakup, it is not necessary to consider other
forms  of  family  breakup  (which  may  not  be  covered  under  the  Brussels  II  Regulation)  for  present
purposes.  Property aspects (area 3 of the program of mutual recognition) are similarly not considered.
32  Although  the  language  of  Article  15(2)  as  well  as  the  link  to  the  matrimonial  proceedings  in  the
Regulation in general may suggest a limitation to one of the spouses, the scope of the Regulation is
not in any way limited in this respect.

13

                                                
have pointed to the need for recognition of decisions granting rights of access to third persons,
for instance to a former spouse of one of the parents.  In this context, the following possibilities
may be considered:

–  no  provisions  limiting  the  range  of  persons  who  may  exercise  parental  responsibility  or  be

granted rights of access

–  one of the parents + member of the former ‘family’ of the child (for instance, a former spouse)

– this option may be suitable for a scope linked to family breakup33

–  one of the parents (as per the French initiative)

Query the justification for introducing any additional (that is, in addition to those already existing
under the applicable national law) substantive limitations in a Community instrument on mutual
recognition.    It  may  instead  be  envisaged  that,  although  no  limitations  are  provided  when
extending the scope of Brussels II, the abolition of H[HTXDWXU for rights of access is coupled with
a limitation on the range of persons who may be granted such rights.  This issue is closely linked
to the relationship between ‘parental responsibility’ and ‘rights of access’ discussed below.

Besides  the  possibility  of  limiting  the  range  of  persons  exercising  parental  responsibility  or
granted  access  rights,  some  Member  States  have  suggested  including  a  positive  obligation  to
consider rights of access for certain categories of persons.  This point is examined in Section 4.5
below.

 !(cid:3)VKRXOG(cid:3)GHILQLWLRQV(cid:3)EH(cid:3)SURYLGHG(cid:3)IRU(cid:3)WKH(cid:3)WHUPV(cid:3)(cid:181)SDUHQWDO(cid:3)UHVSRQVLELOLW\¶(cid:15)(cid:3)(cid:181)ULJKWV(cid:3)RI
FXVWRG\¶(cid:15)(cid:3)(cid:181)ULJKWV(cid:3)RI(cid:3)DFFHVV¶(cid:3)DQG(cid:3)(cid:181)IDPLO\¶(cid:3)RU(cid:3)(cid:181)KRXVHKROG¶"

The Brussels II Regulation does not include a definition of parental responsibility, thus leaving
the  matter  to  national  law.    A  certain  convergence  may  nonetheless  develop  by  virtue  of  the
applicable international instruments (VHH for instance the definition of ‘parental responsibility’ in
the  1996  Convention).34    Query  whether  a  definition  of  ‘parental  responsibility’  should  be
included, and its relationship with ‘rights of custody’ and ‘rights of access’ clarified.

A  definition  of  ‘family’  (or  ‘household’)  may  also  be  useful  if  the  scope  is  linked  to  family
breakup.

(cid:23)(cid:17)(cid:22)(cid:17)

5XOHV(cid:3)RQ(cid:3)MXULVGLFWLRQ(cid:3)IRU(cid:3)WKH(cid:3)QHZ(cid:3)VLWXDWLRQV

The extension of the scope requires rules on jurisdiction to cover these new situations.

33 

The  draft  European  Convention  on  contact  concerning  children  discussed  in  section  3.1  recognizes
the right of a child to contact not only with his or her parents, but also with persons with whom the
child has family ties, and possibly other persons subject  to  his or her  best interests.   In  this  context
‘family ties’ are defined as a “a close relationship such as between a child and his or her grandparents
or siblings, arising from a blood relationship or by operation of law or alternatively from a GH(cid:3)IDFWR
family relationship”.

34  Article  1  of  the  1996  Convention  refers  to  the  authority  of  “parents,  guardians  or  other  legal
representatives”,  and  the  measures  benefiting  from  recognition  and  enforcement  expressly  include
rights of custody, including the right to determine the child’s place of residence and rights of access,
as well as placement of the child in a foster family or in institutional care (Article 3).  Article 3 of the
1980 Convention refers to “rights of custody attributed to a person, an institution or any other body”.

14

                                                
 !(cid:3):LWK(cid:3)UHVSHFW(cid:3)WR(cid:3)FKLOGUHQ(cid:3)ZKR(cid:3)DUH(cid:3)KDELWXDOO\(cid:3)UHVLGHQW(cid:3)LQ(cid:3)WKH(cid:3)&RPPXQLW\

A straightforward solution would be to provide  for  the jurisdiction  of the Member  State  of the
child’s habitual residence, while maintaining the jurisdiction of the divorce court as provided in
the Brussels II Regulation.

There are situations however where, although the child happens to be habitually resident in one
Member State, a sufficiently close connection with another Member State exists so as to justify
the exercise of jurisdiction.  To this end, the new legislation may:

–  (a) rely on a mechanism for the transfer of jurisdiction to another Member State (similar to the
one provided in the 1996 Convention) at the discretion of the Member State of the child’s
habitual residence, or

–  (b) provide, in addition to the habitual residence of the child, alternative bases of jurisdiction
(the  habitual  residence  of  both  parents,  the  child’s  former  habitual  residence,  or  their
common nationality are possible connecting factors).  For instance, the alternative bases of
jurisdiction  set  out  in  Article  2(1)  of  the  Brussels  II  Regulation  in  the  case  of  divorce,
separation or marriage annulment together with the guarantees provided in Article 3(2) for
non-resident children may be equally appropriate for decisions on parental responsibility in
the case of other forms of family breakup.

The  first  option  may  prove  ineffective  in  practice  as  it  relies  solely  on  the  discretion  of  the
Member State of the habitual residence of the child as well as requires commencing proceedings
in that Member State, while the second risks to unduly complicate the jurisdictional regime.

Also,  some  consideration  should  be  given  to  what  extent  (1)  the  Member  State  of  the  original
decision may, for a limited time period, continue to exercise jurisdiction to modify it, and (2) the
Member  State  of  enforcement  may  exercise  jurisdiction  to  fix  the  modalities  of  its
implementation.

 !(cid:3):LWK(cid:3)UHVSHFW(cid:3)WR(cid:3)FKLOGUHQ(cid:3)ZKR(cid:3)DUH(cid:3)KDELWXDOO\(cid:3)UHVLGHQW(cid:3)RXWVLGH(cid:3)WKH(cid:3)&RPPXQLW\

In the case of children who have a substantial connection with, but are not habitually resident in a
Member State, the following options may be considered:

–  (a) no provisions

As a result, Member States would exercise jurisdiction in accordance with their national law, but
these  decisions  would  not  always  benefit  from  recognition  throughout  the  EC.35    Moreover,
should  an  affirmative  decision  be  taken  on  accession  to  the  1996  Convention,  Member  States
would  be  prevented  from  exercising  jurisdiction  on  children  habitually  resident  in  another
Contracting Party.

–  (b) residual application of internal law, coupled with full or limited recognition

Similarly  to  the  Brussels  II  regime,  decisions  based  on  a  residual  jurisdictional  basis  under
national  law  for  children  non-resident  in  the  EC  would  benefit  from  full  recognition  in  other
Member  States.    This  recognition  may  be  limited,  as  appropriate,  in  accordance  with  existing

35  Of course, decisions on parental responsibility for non-resident children falling under Article 8 of the
Brussels  II  Regulation  would  continue  to  benefit  from  recognition  throughout  the  EC  to  the  extent
allowed under Article 16 of the Brussels II Regulation.

15

                                                
international  agreements  binding  the  Member  State  of  recognition  or  future  agreements
negotiated  at  Community  level.    And  accession  to  the  1996  Convention  would  preclude
jurisdiction in the case of children habitually resident in another Contracting Party.

–  (c) enumeration of alternative bases of jurisdiction in the Regulation

As within the EC, this option recognizes that there are situations where, although the child is not
habitually resident in a Member State, a substantial connection exists so as to justify the exercise
of jurisdiction.

However,  the  added  value  of  enumerating  bases  of  jurisdiction  (thus  benefiting  from  full
recognition)  is  further  limited  in  the  extra-Community  context  as  these  provisions  would  be
useful only in situations where close connections with three countries exist (the Member State of
the decision, the third country of the habitual residence of the child, and the Member State where
recognition  is  sought).  Query  therefore  whether  the  limited  added  value  of  such  a  provision
would justify deviating from the simple rule of the habitual residence of the child.

Clearly, in elaborating rules concerning children non-resident in the Community, the question of
accession to the 1996 Convention must also be addressed.

 !(cid:3)GHILQH(cid:3)(cid:181)KDELWXDO(cid:3)UHVLGHQFH¶(cid:3)LQ(cid:3)WKH(cid:3)5HJXODWLRQ"

Query  whether  a  definition  of  ‘habitual  residence’  derived  from  the  case  law  of  the  Court  of
Justice should be provided.

(cid:23)(cid:17)(cid:23)(cid:17)

2WKHU(cid:3)UHODWHG(cid:3)LVVXHV

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The question of applicable law is not addressed in the Brussels II Regulation.  The 1996 Hague
Convention  refers  to  the  forum’s  internal  law  (unless  exceptional  circumstances  mandate  the
application of the law of another State with a close connection), and precludes the use of UHQYRL.

As  a  general  matter,  the  program  of  mutual  recognition  does  not  prejudge  the  question  of
applicable law.  At present, the issue is open as to whether the harmonization of choice of law
rules on divorce and parental responsibility as a means of facilitating mutual recognition should
be further pursued.36

 !(cid:3)FRRSHUDWLRQ(cid:3)EHWZHHQ(cid:3)DXWKRULWLHV

Irrespective  of  whether  a  Community  mechanism  will  be  established  in  the  new  legislation  or
whether  cooperation  will  continue  to  rely  on  existing  mechanisms,  the  competent  national
authorities will be able to participate as contact points in the European Judicial Network for civil
and commercial matters, which is currently being created.

The necessity of provisions reinforcing cooperation between authorities (for instance, in the form
of  provisions  on  return  in  the  French  initiative)  depends  on  whether  existing  cooperation

36 

Following  a  questionnaire  to  the  Member  States  on  this  issue  which  produced  mixed  reactions,  the
Commission plans to launch a study on the practical issues arising from the divergence of choice of
law rules on divorce in 2001.

16

                                                
mechanisms (such as under the 1980 Convention) are considered satisfactory.37  For example, it
has been suggested including a time limit within which the return of the child must be effected.

In  addition,  the  Justice  and  Home  Affairs  Council  meeting  of  30  November  2000  stressed  the
importance  of promoting  mediation  for  the  resolution  of  family  conflicts.    To  this  end,  further
thought should be given to a more active role to be played by authorities.

 !(cid:3)DGGLWLRQDO(cid:3)VDIHJXDUGV

Although the present reflection centers on the extension of the Brussels II Regulation and does
not  touch  upon  the  technical  aspects  of  abolishing  H[HTXDWXU,  a  few  words  on  safeguards  are
warranted.

On the one hand, concerns have been expressed as to the need for the authorities of the Member
State of enforcement to intervene in exceptional circumstances.  To this end, the French initiative
sets out  an  emergency  procedure  for  suspending  enforcement on  a  number  of  grounds  (limited
compared to the grounds for non-recognition in the Brussels II Regulation), as well as where a
judgment on non-recognition has become UHV(cid:3)MXGLFDWD.  In this context, it is worth noting that the
Brussels  II  Regulation allows  in  any  case  for  the  jurisdiction  of  the  authorities  of  the  Member
State of the presence of the child to take protective measures.38

On the other hand, the French initiative acknowledges that if the exercise of access rights is to be
facilitated, then the parent who has custody should be better protected through further limitations
on the ability of the parent who has access to invoke the ‘grave risk’ exception of Article 13(b)
the 1980 Convention for the purpose of blocking the return of the child.  Query the necessity to
provide a new formulation, rather than rely on a narrow interpretation of the 1980 Convention.
Alternatively,  it  has  been  proposed  to  put  safeguards  in  place  before  the  rights  of  access  are
exercised, by applying for a declaration of the recognition of the custody decision or by obtaining
an undertaking to this effect from the authority of the Member State of access or from the person
who  has  access  rights.    This  more  pro-active  approach  appears  to  have  inspired  the  draft
European Convention on contact concerning children (VHH Section 3.1).

The necessity of providing safeguards to counter balance the ease of enforcement hinges on the
effectiveness of cooperation and the level of trust, which has been built between authorities in the
Member  States.    To  reinforce  this  trust,  the  Commission  is  envisaging  work  on  a  number  of
horizontal measures, including minimum standards on enforcement.

 !(cid:3)PLQLPXP(cid:3)VWDQGDUGV(cid:3)RQ(cid:3)HQIRUFHPHQW

To  the  extent  enforcement  continues  to  be  carried  out  under  national  laws,  which  may  differ
considerably from one Member State to another, it remains possible to some extent to ‘modify’ in
practice a judgment at enforcement level.  In some cases, the same reason, which can no longer
prevent recognition of a judgment will ultimately frustrate its enforcement.  It may therefore be
worthwhile  to  examine  the  practical  problems  arising  from  divergences  in  the  national
enforcement laws in the family area, and to consider whether a certain degree of harmonization
or a set of minimum standards may be appropriate.  This work has been included in the horizontal
measures in the program of mutual recognition, and may take place in parallel with consideration
of the new legislation on parental responsibility.

37 

The  cooperation  mechanism  of  the  1980  Convention  will  be  the  subject  of  review  in  a  Special
Commission meeting at the Hague in March 2001.

38  Article  12  of  the  Brussels  II  Regulation  provides  that  the  authorities  of  a  Member  State  may  take

provisional, including protective measures, in respect of persons or assets in that State.

17

                                                
Finally,  the  Commission  is  working  on  a  number  of  other  ‘procedural’  measures  aimed  at
facilitating the free circulation of decisions within the Community.  Following the adoption of a
Regulation  aimed  at  facilitating  the  transmission  of  documents  in  May  2000,  work  continues
towards harmonizing the rules on service of documents.

(cid:23)(cid:17)(cid:24)(cid:17)

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Some  Member  States  have  suggested  that  the  new  legislation  should  strengthen  the  child’s
involvement in the decisions affecting him or her.  This means going beyond the requirement in
the Brussels II Regulation to give the child the opportunity to be heard and to consider his or her
views bearing in mind his or her age and maturity.  For example, the Regulation may  mandate
that the child should have an unconditional right to be heard, or even that his wishes should be
respected,  provided  that  he  or  she  has  reached  a  certain  age.    One  should  nonetheless  bear  in
mind that this right has traditionally been qualified (by reference to the child’s age and maturity)
for an important purpose, namely to protect the child from his inexperience or from manipulation
by others, and to allow the judge to exercise his discretion in this sensitive matter.

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Contrary  to  the  Brussels  II  Regulation  which  leaves  the  issue  to  national  law,  it  has  been
suggested that new legislation should delve into the regulation of the exercise of access rights, for
instance by mandating that any former member of the child’s family, such as a former spouse of
one of the parents, has the right of access or the right to apply for such rights.

As  a  general  matter,  these  substantive  considerations  relating  to  the  child’s  involvement  in  the
proceedings and to the holders of rights of access may be framed as requirements, which would
have to be fulfilled for the judgment to benefit from recognition in other Member States.  On the
one  hand  and  to  the  extent  that  such  matters  are  core  considerations  in  their  national  legal
traditions, certain Member States may be reluctant to further facilitate recognition without these
requirements.  On the other hand, there is a real risk that their inclusion would allow to go down
the slippery slope of review of the substance of the judgment by the Member State of recognition,
which would frustrate the very objective of mutual recognition.

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(1) 

(2) 

(3) 

This  working  document  aims  at  structuring  further  discussion  in  view  of  presenting  a
Commission  proposal  for  a  regulation  on  parental  responsibility.    The  Commission  is
fully conscious of the need to accelerate work in this direction, which was considered by
the  Justice  and  Home  Affairs  Council  of  30  November  2000  as  a  prerequisite  for  the
French initiative on rights of access.  In the light of the Council’s mandate for the equal
treatment  of  all  children,  the  Commission  considers  that  the  scope  of  the  Brussels  II
Regulation should now be extended to encompass all decisions on parental responsibility.
As regards jurisdiction, this working document opens the debate as to whether a simple
rule based on the child’s habitual residence would be adequate for this purpose.

This work is situated in the framework of the program of mutual recognition, whose final
objective  is  the  abolition  of  H[HTXDWXU  in  the  civil  and  commercial  law  area.    The
extension of the scope of the Brussels II Regulation figures in the first stage of measures
in the family area, together with the abolition of the H[HTXDWXU for decisions on rights of
access.  The latter is one of two specific projects for the abolition of H[HTXDWXU in limited
fields  currently  under  way  (the  other  targeting  the  area  of  uncontested  claims  in  the
commercial (“Brussels I”) law area as discussed in the informal Justice and Home Affairs
Council meeting on 8 February 2001).

However laudable the objective of abolishing H[HTXDWXU within the Community, issues of
parental  responsibility  often  transcend  the  boundaries  of  the  EC  and  solutions  must
therefore  be  sought  at  international  level.    As  discussed,  the  issue  of  a  possible
Community accession to the 1996 Hague Convention on parental responsibility must be
addressed in parallel to elaborating Community legislation.  To the same end, a dialogue
with countries which do not participate in the Hague framework must be sought in other
regional  fora,  for  instance  as  part  of  the  Barcelona  process  with  our  Mediterranean
partners.    A  coherent  Community  framework  within  the  EC  can  only  move  this
international dialogue forward.

20

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Annex 1

6FRSH

–  civil proceedings relating to parental responsibility  for  the  children  of  both  spouses
on  the  occasion  of  divorce,  legal  separation  or  marriage  annulment  proceedings
(Article 1(1)(b))

–  Denmark excluded (Article 1(3))

-XULVGLFWLRQ

– 

time-limited jurisdiction of the divorce court (1) where the child is habitually resident
in that Member State; (2) where the child is habitually resident in one of the Member
States, and at least one of the spouses has parental responsibility, and jurisdiction has
been accepted by the spouses and is in the best interests of the child (Article 3)

–  must  be  exercised  in  accordance  with  the  1980  Hague  Convention  on  international

child abduction (Article 4)

–  exclusive against spouses who are nationals or habitual residents of a Member State
(Article 7); residual jurisdiction by reference to national law (Article 8), but judgment
may not be recognized on the basis of an international agreement (Article 16)39

–  possibility to adopt provisional, including protective, measures under national law to

protect persons and property located in a Member State (Article 12)
OLV(cid:3)SHQGHQV: court second seized stays proceedings until jurisdiction of the court first
seized is established (Article 11)

– 

–  automatic  recognition  (that  is,  without  any  special  procedure);  may  apply  for  a
decision  on  recognition  (Article  14);  may  stay  proceedings  for  recognition  if
judgment is subject to appeal (Article 20)

–  exhaustive  list  of  mandatory  grounds  of  non-recognition:  public  policy  taking  into
consideration  the  best  interests  of  the  child;  rights  of  defense;  faulty  service  for
judgments  in  default;  right  of  the  child  or  other  person  to  be  heard;  irreconcilable
later judgment (Article 15)

–  unilateral, H[(cid:3)SDUWH procedure for a declaration of enforceability (H[HTXDWXU) subject
to  appeal  by  both  parties  under  strict  time  limits  (Article  26);  application  may  be
refused  only  on  non-recognition  grounds  (Article  21)  and  on  the  basis  of  an
international agreement (Article 16)

–  enforcement procedure under national law

possibility  for  agreements  between  Member  States  to  amplify  the  Regulation  or  to
facilitate its application (Article 39)40
takes  precedence  over,  LQWHU(cid:3) DOLD,  the  1961  Hague  Convention  on  the  protection  of
minors, the 1996 Hague Convention on parental responsibility, and the  1980  European
Convention on custody of children (Article 37)

1 March 2001 (Article 46)

5HFRJQLWLRQ

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39  Article 16 refers to pre-existing international agreements concluded by individual Member States as well as

to any future agreements negotiated by the Community.

40  Note that Article 39 is limited to practical time-limited arrangements among Member States, which may not
derogate from Chapters II and III of the Regulation, and for which a Community implementing instrument
has not been possible.

21

                                                
(cid:20)(cid:28)(cid:28)(cid:25)(cid:3)+DJXH(cid:3)&RQYHQWLRQ(cid:3)RQ(cid:3)SDUHQWDO(cid:3)UHVSRQVLELOLW\

Annex 2

6FRSH

–  FKLOGUHQ < 18 years (Article 2)

-XULVGLFWLRQ

–  SDUHQWDO(cid:3) UHVSRQVLELOLW\  includes  parental  authority,  or  any  analogous
relationship of authority determining the rights, powers and responsibilities
of parents, guardians or other legal representatives in relation to the person
or the property of the child (Article 1(2)); includes rights of access incl. the
right to take the child for a limited period of time to a place other than the
child’s habitual residence (Article 3(b))

–  of  the  judicial  or  administrative  authorities  of  the  Contracting  State  of  the
habitual  residence  of  the  child  (Article  5);  exception  for  certain  cases  of
wrongful removal (Article 7)
IRUXP(cid:3) QRQ(cid:3) FRQYHQLHQV:  possibility  of  transfer  to  another  Contracting  State
“better placed” to hear the case (Articles 8 and 9)

– 

–  concurrent jurisdiction of the court of divorce, legal separation or annulment
in line with the Brussels II Regulation (additional requirements of consent of
third person having parental responsibility and one parent habitually resident
in the divorce State at commencement of proceedings) (Article 10)

–  concurrent  jurisdiction  of  State  of  child’s  presence  or  location  of  his
property  in  cases  of  urgency  and  for  provisional  measures  of  limited
territorial effect (Articles 11 and 12)

–  conflicts of concurrent jurisdiction (Article 13)

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–  forum law; may exceptionally apply law of another State with a substantial

connection (Article 15)
–  UHQYRL excluded (Article 21)

–  public  policy  exception,  taking  into  account  the  best  interests  of  the  child

(Article 22)

5HFRJQLWLRQ

–  by operation of law (Article 23(1))

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– 

list  of  non-compulsory  grounds  for  refusal;  compared  to  the  Brussels  II
Regulation also includes review of jurisdiction (Article 23(2))

–  application  for  declaration  of  enforceability  or  registration  for  purposes  of
enforcement;  must  provide  “simple  and  rapid”  procedure;  may  be  refused
only on grounds of non-recognition (Article 26)

–  enforcement  under  law  of  the  requested  State  “to  the  extent  provided  by
such  law,  taking  into  consideration  the  best  interests  of  the  child”  (Article
28)

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–  mutual  assistance  incl.  in  the  exercise  of  rights  of  access  and  right  to

maintain direct contact on a regular basis (Article 35(1))

7KH(cid:3)FR(cid:16)FDOOHG
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–  certificate of suitability for parent requesting access rights (Article 35(2))

– 

international certificate on custody rights (Article 40)

–  Contracting States authorized to conclude agreements in respect of children
habitually  resident  in  any  of  the  State  parties  to  such  agreements;  also
applies to uniform laws on special ties of a regional or other nature (Article
52)

replaces 1961 Hague Convention on the protection of minors; primacy of 1980
Hague Convention on international child abduction (Article 50)

has  not  yet  entered  into  force;  the  Netherlands  is  the  only  MS  having  signed
(but not ratified) the Convention

22

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–  any FKLOG < 16 years habitually resident in a Contracting State immediately

before any breach of custody or access rights (Article 4)

–  (cid:181)ZURQJIXO¶(cid:3)UHPRYDO(cid:3)RU(cid:3)UHWHQWLRQ(cid:3) where in breach of custody  rights  under
the law of the State in which the child was habitually resident immediately
before  the  removal  or  retention,  which  were  actually  exercised  or  would
have  been  exercised  but  for  the  wrongful  removal  or  retention;  custody
rights may arise by operation of law,  by judicial or administrative decision
or by agreement having legal effect (Article 3)
–  (cid:181)ULJKWV(cid:3)RI(cid:3)FXVWRG\¶(cid:30)(cid:3)(cid:181)ULJKWV(cid:3)RI(cid:3)DFFHVV¶(cid:3)(Article 5)

&RRSHUDWLRQ(cid:3)EHWZHHQ
FHQWUDO(cid:3)DXWKRULWLHV

– 

LQWHU(cid:3)DOLD to initiate proceedings for the return of the child and to arrange for
the effective exercise of rights of access (Article 7)

3RVVLEOH(cid:3)H[FHSWLRQV(cid:3)WR
UHWXUQ(cid:3)RI(cid:3)WKH(cid:3)FKLOG

–  application  for  assistance  for  the  return  of  the  child  (Article  8)  or  for
arranging the effective exercise of rights of access (Article 21) to the central
authority of the child’s habitual residence or of any other Contracting State

–  shall order return of the child if less than one year has elapsed from date of
wrongful removal; otherwise shall order return unless it is demonstrated that
the child is now settled in its new environment (Article 12)

–  custody  rights  not  exercised,  or  consent  to  removal  or  retention  (Article

13(a))

–  grave  risk  that  return  would  expose  the  child  to  physical  or  psychological
harm or otherwise place the child in an intolerable situation (Article 13(b))

–  objection of child of age and maturity (Article13)

–  fundamental  principles  of  the  requested  State  relating  to  the  protection  of

human rights and fundamental freedoms (Article 20)

5HODWLRQ(cid:3)ZLWK(cid:3)RWKHU
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–  does not restrict application of other instruments to obtain return of a child

wrongfully removed or to organize rights of access (Article 34)

–  Contracting States may agree to limit restrictions on return (Article 36)

(QWU\(cid:3)LQWR(cid:3)IRUFH

–  entered into force on 1-12-1983

–  has been ratified by all Member States

23

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Annex 3

(cid:181)LPSURSHU(cid:3)UHPRYDO¶

&RRSHUDWLRQ(cid:3)EHWZHHQ
FHQWUDO(cid:3)DXWKRULWLHV

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where  in  breach  of  a  custody  decision  given  in  a  Contracting  State  and
enforceable  in  that  State,  including  failure  to  return  a  child  at  the  end  of  a
period of the exercise of the right of access (Article 1(d))

–  recognition  of  custody  decisions  given  in  a  Contracting  State  and

enforcement if enforceable in State of origin (Article 7)

–  “simple and expeditious procedure” (Article 14)

– 

the  State  addressed  may  fix  the  conditions  for  the  exercise  of  the  right  of
access (Article 11)

7KUHH(cid:16)WLHU(cid:3)V\VWHP(cid:3)IRU
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–  no  grounds  of  refusal,  if  child  and  parents  are  nationals  and  child  has
habitual residence in State where decision was given, or child has not been
restored at end of agreed access period, and request for restoration is made
to the central authority within 6 months (Article 8)

–  grounds of refusal limited to procedural issues in other cases where request

is made within 6 months (Article 9)

–  additional  grounds  of  refusal  in  all  other  cases:  fundamental  principles  of
law,  change  in  circumstances  (incl.  Ascertaining  the  child’s  views),
connection  of  the  child  with  the  State  addressed  or  existence  of
incompatible decision (Articles 10 and 15)

–  reservations possible for Articles 8 and 9 referring to additional grounds of

Article 10 (Article 17)

Contracting States are free to apply, between themselves, their uniform laws on
custody or special system of recognition/enforcement (Article 20)

–  1 September 1983; in force in all Member States, but subject to widespread

use of the reservations under Article 17

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6FRSH

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WKH(cid:3)FKLOG

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children < 18 years (Article 1)

–  right of the child to be informed and to express his/her views in procedures

which concern him/her (Article 3)

–  right  of  the  child  to  apply  for  appointment  of  a  special  representative

(Article 4)

does not preclude the application of other instruments (Article 15)

1 July 2000; in force only in one Member State (Greece)

24

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Annex 4

$UWLFOH(cid:3)(cid:21)(cid:23)(cid:3)–(cid:3)7KH(cid:3)ULJKWV(cid:3)RI(cid:3)WKH(cid:3)FKLOG

(1) 

(2) 

(3) 

Children shall have the right to such protection and care as is necessary for their well being.  They may
express their views freely.  Such views shall be taken into consideration on matters which concern them
in accordance with their age and maturity.

In all actions relating to children, whether taken by public authorities or private institutions, the child’s
best interests must be a primary consideration.

Every child shall have the right to maintain on a regular basis a personal relationship and direct contact
with both his or her parents, unless that is contrary to his or her interests.

(cid:20)(cid:28)(cid:27)(cid:28)(cid:3)8QLWHG(cid:3)1DWLRQV(cid:3)&RQYHQWLRQ(cid:3)RQ(cid:3)WKH(cid:3)ULJKWV(cid:3)RI(cid:3)WKH(cid:3)FKLOG

Article 1

Article 3

Article 9

Article 11

Article 12

(cid:181)FKLOG¶(cid:29)(cid:3) every  human  being  below  the  age  of  eighteen  years  unless,  under  the  law
applicable to the child, majority is attained earlier
(cid:181)EHVW(cid:3)LQWHUHVWV(cid:3)RI(cid:3)WKH(cid:3)FKLOG¶(cid:3)is(cid:3)primary consideration

–  right of the child not to be separated from his/her parents against their  will, except

upon determination that such separation is in his/her best interests

–  right of the child who is separated to maintain personal relations and direct contact
with both parents on a regular basis, except if contrary to the child’s best interests

measures to combat the illicit transfer and non-return of children abroad

–  right of the child to have his/her views given due weight in accordance with his/her

age and maturity

–  right of the child to be heard in any judicial and administrative proceedings affecting
his/her  in  accordance  with  national  procedural  law;  such  ‘family  proceedings’
the  exercise  of  parental  responsibility,  and
include  proceedings 
particularly residence and access issues

involving 

Article 18

joint responsibility of both parents for the child’s upbringing and development

–  entry into force on 2-9-90

–  ratification by all Member States

25