52002AE1021

Opinion of the Economic and Social Committee on the "Proposal for a Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility repealing Regulation (EC) No 1347/2000 and amending Regulation (EC) No 44/2001 in matters relating to maintenance"

(COM(2002) 222 final - 2002/0110 (CNS))

(2003/C 61/15)

On 28 May 2002, 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 4 September 2002. The rapporteur was Mrs Carroll, the co-rapporteurs were Mr Retureau and Mr Burnel.

At its 393rd Plenary Session (meeting of 18 September 2002), the Economic and Social Committee adopted the following opinion by 129 votes in favour and two votes against with three abstentions.

1. Background to the proposal

1.1. In September, 2001, the Commission put forward a Proposal for a Council Regulation on jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility(1). The Committee gave its opinion on this proposal in January 2002(2). This was not the only Community instrument in the area of jurisdiction and recognition and enforcement in relation to matrimonial matters and parental responsibility for children. Accordingly, the Committee urged the Commission to consolidate all such legislation into one instrument. The Council was already considering this matter and the current integrated proposal is the result.

1.2. 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, this has meant an increase in the numbers of divorce, annulments and separations involving citizens of different Member States. Disputes arising in judicial or administrative proceedings - always difficult - can be complicated by issues of jurisdiction, with parties to the proceedings forum shopping or seeking to have judgments handed down in one Member State overturned in their own Member State.

1.3. Disputes relating to access to and/or custody of children following the divorce or separation give rise to a limited, but not negligible number of cases of child abduction, both to other Member States and to third countries by parents or other relatives. Even where there has been no forceful abduction, rights of access for a parent 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 the judgment giving them custody, if the child fails to return. This is to the detriment of both the child and the other parent.

2. Existing legislation - EU instruments

2.1. The Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters did not cover issues relating to personal law, such as matrimonial breakdown and the resultant civil issues, such as custody of and access to children.

2.2. The Brussels Convention of 28 May 1998 on jurisdiction, recognition and enforcement of judgments in matrimonial matters provided for limited mutual recognition and enforcement of judgments 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 by Regulation (EC) No 1347/2000.

2.3. Council Regulation (EC) No 1347/2000 on jurisdiction and the recognition and enforcement of judgments 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(3). It does not apply in Denmark which does not participate in the common judicial area. The Committee gave its opinion on this Proposal in October 1999(4).

2.3.1. The Committee welcomed the Proposal but felt that it could have been more ambitious in its scope. In particular it considered that the Regulation should be extended to include children of previous marriages and adopted children. Provisional and fall-back arrangements written into the proposal were felt to allow too much leeway for the application of national law. In this regard and in relation to procedural matters, the Committee recommended more precise wording of the proposed Regulation. The Committee recommended that attention should be paid to the European public's growing demand for guarantees equivalent to those they hold before the courts in their own country in all other Member States.

2.4. Maintenance is excluded from the scope of this Proposal. It is already covered by Council Regulation (EC) No 44/2001(5), which offers a more advanced system of recognition and enforcement. This Regulation will remain in force as a separate instrument, amended as regards jurisdiction by Article 70 of the current Proposal, to take account of the provisions of the latter.

3. Important extra-EU instruments

3.1. The 1996 Hague Convention(6) covers jurisdiction, recognition and enforcement and cooperation in respect of parental responsibility and measures for the protection of children. It is not yet in force.

3.2. 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 the age of 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 current Proposal is inspired by the terms of the 1980 Convention, but the European Court of Justice will interpret it in relation to disputes between citizens of Member States.

4. A framework for improvement

4.1. The current proposal "aims at the recognition and enforcement within the Community of decisions in matrimonial matters and in matters of parental responsibility based on common rules on jurisdiction". In this respect, it is following Article 34 of the Conclusions of the Tampere Council of October, 1999. 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 relationships other than marriage; (iii) rights in property arising out of a matrimonial relationship and the property consequences of the separation of an unmarried couple; and (iv) wills and succession.

4.2. An 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 was 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. This initiative is integrated into the current Proposal.

4.3. In September 2001, the Commission put forward a Proposal for a Council Regulation on jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility, on which the Committee gave its opinion in January, 2002. The Committee was pleased to note the extent to which its recommendations have been incorporated into the current Proposal. However, there remains the important issue to be dealt with, viz.- non-marital family situations and, in particular, the children of non-marital family situations.

5. Comments on the Proposal

5.1. The provisions of Regulation (EC) No 1347/2000 which covers matrimonial matters have been taken over into the new proposal but extended in relation to parental responsibility by severing the link with matrimonial proceedings. The provisions of the Proposal relating to parental responsibility are also inspired by the provisions of the 1996 Hague Convention. The Hague Convention on the Civil Aspects of International Child Abduction, 1980 is already in force in all Member States. The new Regulation will not be identical to the 1996 and 1980 Hague Conventions, as it introduces stricter rules on jurisdiction for intra-EU cases. The Committee welcomes this broader approach to the implementation of the Convention.

5.2. The term "matrimonial matters" covers divorce, legal separation or marriage annulment by civil proceedings or other proceedings recognised in a Member State as being equivalent to judicial proceedings. The Proposal does not cover measures taken as a result of penal offences committed by children. "Parental responsibility" means rights and duties given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect and relating to the person or the property of a child. In particular, the term includes rights of custody and access.

5.2.1. The Committee is pleased to note that the current Proposal is wider and more ambitious in its scope than Regulation (EC) No 1347/2000. It is also pleased to note that its scope is no longer limited to issues of parental responsibility arising before the final judgment or decision has been handed down in divorce or separation proceedings. In accordance with the provisions of the French Initiative, ongoing disputes are now covered.

5.2.2. The issue of non-marital family situations and disputes arising from them upon separation and, in particular, in relation to parental responsibility, however, still remain to be dealt with. The Committee again urges the Commission to put forward proposals covering non-marital situations, as it did in its Opinion on the Proposal for Regulation (EC) No 1347/2000.

5.2.3. The Committee is concerned at the wording used in Article 1.1 covering the scope of the Regulation. The wording is ambiguous and could suggest that all children are covered by the Regulation. Equally, however, it could suggest that only children of a married couple or of one of them are covered. In the interests of clarity and of the widest possible scope for the Proposal, the Committee recommends that the Article should be amended as follows and, in relation to parental responsibility, should be closer to the wording of its 2001 Proposal:

- This Regulation shall apply to:

(a) civil proceedings relating to divorce, legal separation or marriage annulment;(and)

(b) all civil proceedings relating to the attribution, exercise, delegation, restriction or termination of parental responsibility, whether in connection with civil proceedings under (a) above or otherwise.

5.2.4. The Committee welcomes the more precise definitions in relation to parental responsibility and child abduction.

5.2.5. In its Opinion on the parental responsibility Proposal, the Committee urged the Commission to ensure the child was heard in disputes on access/custody. It is pleased to note that this aspect has been incorporated into the Proposals in Article 4 and in particular to note Article 3 of the Proposal which states the child's right to maintain on a regular basis a personal relationship and direct contact with both parents, unless it is contrary to his/her interests. The Committee would go further and say that a child has the right to maintain a personal relationship and direct contact with his wider family, e.g., brothers and sisters and stepbrothers and sisters, grandparents, etc.

5.2.5.1. The interests of the child are difficult to define but there is no doubt that they should be paramount. Whilst it can be sometimes difficult to establish the best interests of a child by listening to him/her, because of age, immaturity or undue parental influence, it is always important to seek to establish the child's best interest. The opinion of the (often warring) parents may not always be useful in determining the best interests of a child, as they may be confusing their own emotional needs with those of the child. They may also be using a child as a bargaining counter.

5.2.5.2. An effort should, therefore, be made by the Commission through cooperation in the European Judicial Network to coordinate approaches to this question among the judiciary of the Member States. The Committee would also recommend to national Governments that they should ensure that judicial and legal training encompasses training in dealing with children's rights as a part of the web of personal human rights.

5.2.5.3. Speedy procedures should, however, be the main aim of this Proposal. The Committee believes that speed is of the essence in dealing with issues of parental responsibility. A child's interest, particularly that of a young child, is not served by long-drawn-out procedures, during which the child may lose even the memory of the other parent or guardian.

5.2.6. The Committee notes with some concern the wide range of grounds for decisions on jurisdiction in matrimonial matters. It is aware that differing legal situations have to be accommodated but hopes that, in the future, it will be possible to restrict the number of grounds, so as to ensure the maximum clarity and speed of proceedings.

5.2.7. In relation to jurisdiction in parental responsibility proceedings (Article 15), the Committee welcomes the fact that the habitual residence of the child is the normal basis for decisions on jurisdiction. The limited provisions made for emergencies and for recent changes of habitual residence of the child and a holder of parental responsibility, in general, should be useful. The Committee has, however, some reservations as to the place where property of the child is located always being a sound reason for transfer of jurisdiction, even though this is only in exceptional circumstances. It is concerned that this ground could be abused and urges further protection for the child in relation to the use of this ground, if not its deletion from the Proposal.

5.2.7.1. The Committee feels that the property provision may be based on a somewhat outdated notion of property being generally immovable property or else tangible movable property, where its location may be important. However, a trust in one Member State may administer a property, movable or immovable, tangible or intangible (e.g. financial products), belonging to a child located in another State or having connection with several other States, including non-Member States (e.g. financial instruments of one kind or another). There may be no particular reason why the jurisdiction of the Member State in which property is located should be chosen in the vast majority of cases. If the Member States decide to retain this ground, it should be made absolutely clear that only issues of property should be concerned and not any other matters covered by this Proposal.

5.2.8. On the question of grounds for non-recognition of judgments (Article 28), the Committee is concerned that the issue of public policy should be allowed as a valid ground. This is open to abuse and, in the case of parental responsibility proceedings, may act in direct contradiction of the spirit of an otherwise child-centred Proposal. In some jurisdictions, public policy or constitutional provisions may lay greater emphasis on parental rights than on parental responsibilities and thus act to the detriment of the child concerned.

5.2.9. The Committee is pleased to note that the grounds of costs have been addressed by the Commission in the current Proposal, as recommended by it in its Opinion on the 2000 Parental Responsibility Proposal.

5.2.10. The provisions on child abduction take precedence over the 1980 Hague Convention, but the Convention remains in force in the Member States for the purposes of dealing with extra-EU abductions. These remain the vast majority of abductions and the Committee urges the Commission to use its influence to ensure adherence to this Convention by all countries and to conclude bilateral agreements with third countries where possible.

5.2.11. Where mediation is a feature of national proceedings, there is always a risk that one party may negotiate in good faith while the other is using mediation merely to delay proceedings. This position should be provided for and the Committee recommends that, where the parties agree to mediation, time limits shall run from the date on which the mediation is declared to have failed.

5.2.11.1. The proposal should specify that Central Authorities may work in specific cases either directly or through public authorities or other bodies.

5.2.12. The Commission should work to improve the depth and quality of cooperation between Central Authorities and within the European Judicial Network.

6. Further recommendations

6.1. As it noted in paragraph 5.2.2 above, the Committee feels that the Commission and Council should give urgent consideration to the issues arising from the breakdown of non-marital relationships and the cross-border aspects of this, particularly relating to parental responsibility issues.

The Committee appreciates that progress on this issue cannot be made within the scope of the present Proposal. It considers the adoption of this Regulation to be an urgent matter and, therefore, does not propose that it should be extended to include non-marital relationships. However, in the interests of the people concerned in the breakdown of non-marital relationships and, in particular, in the interests of their children, the Committee considers that a legal framework at both national and EU level is necessary and urges the Commission to initiate work in this area.

6.2. The Committee notes with interest that France treats child abduction as a criminal offence. While not wishing to criminalise marital or ex-marital relations, treating child abduction as a crime can help in the speedy location of the child, as police authorities in the Member States are generally more efficient at locating people than are civil authorities. The Committee recommends that this approach might be considered by other Member States, as a means of improving the speed with which return of the child can be effected to his/her lawful custodian.

6.3. Attribution of parental rights, as well as access and visiting rights, etc., are covered by the current Proposal. Adopted children are on the same footing under the Proposal as are natural children. The Committee understands, however, that it is not currently the intention to include the actual adoption procedures within the scope of the Proposal. This seems somewhat contradictory, as adoption could be considered as the ultimate "attribution ... of parental responsibility". The Committee recommends that adoption procedures should be covered by this Proposal.

6.4. Maintenance remains covered by a separate instrument. As maintenance is almost invariably a matter of urgency, it recommends that jurisdiction, recognition and enforcement in maintenance cases should be on the same footing as the proposed instrument for recognition and enforcement of commercial agreements.

6.5. A significant problem exists within the European Union (although sometimes emanating from without) of abandonment of children and abuse of parental authority in relation to a child. The Committee requests the Commission to consider this issue, by means of research into the problem and to take appropriate action suggested by the results, with the aim of producing child-centred measures.

Brussels, 18 September 2002.

The President

of the Economic and Social Committee

Göke Frerichs

(1) COM(2001) 505 final.

(2) OJ C 80, 3.4.2002, p. 41.

(3) OJ L 160, 30.6.2000.

(4) Opinion on the Proposal for a Council Regulation on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for joint children (OJ 368, 20.12.1999).

(5) Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. OJ 12, 16.1.2001.

(6) The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children 1996.