Opinion of the Economic and Social Committee on the "Proposal for a Council Regulation on jurisdiction and the recognition and enforcement of judgements in matters of parental responsibility"
Date: 2002-01-16
Institutions: European Economic and Social Committee
Subjects: EU Member State, cohabitation, custody, judicial cooperation, jurisdiction, parental responsibility, separated person

3.4.2002

EN

Official Journal of the European Communities

C 80/41

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

responsibility’

(2002/C 80/09)

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

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

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

1.

Introduction

1.1. The background to the proposals

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

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

1.2.

Existing legal provisions — EU instruments

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

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

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

1.3.

Important extra-EU instruments

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

1.2.2.
The Brussels Convention of 28 May 1998 on jurisdic-
tion, recognition and enforcement of judgements in matri-

(1) Opinion on the Proposal

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

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1.4. Major weaknesses of existing provisions

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

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

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

1.5.

Initiatives to improve the situation

1.5.1.

I n i t i a t i v e o f t h e F r e n c h R e p u b l i c

The French Republic, in July 2000, proposed a
1.5.1.1.
Regulation,
to complete Regulation (EC) No 1347/2000,
aimed at facilitating, through the abolition of exequatur, the
exercise of cross-border rights of access in the case of children
of divorced or separated couples, aged up to 16 years. The
Committee gave a favourable opinion on this proposal in
October, 2000 (1).

1.6.

Further EU actions

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

1.6.2.
The Justice and Home Affairs Council meeting on
30 November 2000, adopted a programme for the progressive
abolition of exequatur in four areas of work: (I) Brussels I;
(II) Brussels II and family situations arising through relation-
ships other than marriage; (III) rights in property arising out of

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

a matrimonial relationship and the property consequences of
the separation of an unmarried couple; and (IV) wills and
succession.

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

1.6.4.
The Commission will soon adopt a regulation on
ratification of the 1996 Hague Convention by the Member
transcend the
States,
boundaries of the Community.

in order to address situations that

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

2. Comments on the proposals

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

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

provision requiring judges and/or administrative bodies to take
full account of the right to be heard of all children who are
capable of expressing a rational opinion on the issues involved.

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

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

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

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

just parts) of

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

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

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

The Committee is pleased that the draft Regulation
2.6.
takes account of the best interests of the child but regrets that
the child’s right to be heard is included in the draft only
indirectly by reference to Regulation (EC) No 1347/2000.
Given that children up to the age of 18 years are covered, this
is a significant omission and it should be expressly provided
for in the draft. The Committee strongly urges that specific

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

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

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

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

a)

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

b)

be extended by the period of mediation,

whichever is applicable.

Brussels, 16 January 2002.

3. Abandonment of and abuse of parental responsibility

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

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

a)

b)

abandonment of children, and

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

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

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

The President

of the Economic and Social Committee

Göke FRERICHS