Report | Doc. 14435 | 30 October 2017
Cross-border parental responsibility conflicts
Committee on Social Affairs, Health and Sustainable Development
Summary
When parents of different nationalities separate, the sharing of parental responsibility is made more complex by different legal and judicial systems. Sometimes it can result in cross-border conflicts, or even child abductions. While international legal instruments may seem sufficient, the situation can turn out to be dramatic in practice: the complexity of domestic and international law, conflicts between court systems, the length and cost of proceedings, and a break in the link between one of the parents and his or her children.
The Parliamentary Assembly should recommend that member States ensure that the best interests of the child prevail in order to prevent or solve such conflicts, by making the enforcement of a parental responsibility decision abroad simpler, speedier and less costly, helping to widen the geographical scope of the key international legal instruments, streamlining the processing of cases of child abduction/retention, and ensuring the specialisation of the professionals concerned and effective co-operation between the “Central Authority” of one country and other national authorities.
The Assembly should also ask them to guarantee that the views of the child or children concerned are heard and taken into account and, lastly, to encourage recourse to properly and internationally recognised mediation services and agreements.
A. Draft resolution ![(1)
Draft
resolution adopted unanimously by the committee on 19 September
2017.](/nw/images/icon_footnoteCall.png)
(open)B. Explanatory memorandum by Ms Martine Mergen, rapporteur
(open)1. Introduction
![(2)
Committee opinion, Doc. 13896.](/nw/images/icon_footnoteCall.png)
![(3)
AS/Soc/Inf (2017) 03.](/nw/images/icon_footnoteCall.png)
![(4)
For
the minutes of the exchange of views, please see document AS/Soc
(2017) PV 03 add.](/nw/images/icon_footnoteCall.png)
![(5)
I would like to thank,
in particular, Ms Christelle Hilpert, Head of the Office on EU law,
private international law and mutual aid in civil matters, Civil
Affairs and Seals Directorate, Ministry of Justice, and her colleagues,
as well as Ms Nathalie Graffagnino, Director of the “Centre de Médiation
des Notaires de Paris” and Maître Drilhon-Jourdain, notary and mediator,
for having taken the time to meet me.](/nw/images/icon_footnoteCall.png)
2. The legal situation in Council of Europe member States, the European Union and worldwide
- The United Nations Convention of 20 November 1989 on the Rights of the Child
sets forth fundamental principles for the protection of children’s rights with specific attention given to children’s rights in cross-border family matters. See in particular Article 10 2 concerning personal relations and contact between children and parents living in different States and Article 11 concerning child abduction. The Convention has 196 State Parties. All 47 Council of Europe member States are a Party to this Convention.
- The Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children (hereinafter the “1996 Hague Child Protection Convention”)
provides for common rules on jurisdiction, applicable law, and recognition and enforcement in the field of parental responsibility and child protection. The Convention establishes a system of State co-operation through Central Authorities assisting individuals concerned in each Contracting State in resolving cross-border family disputes. Any State can join this global instrument. Currently (October 2017), the Convention has 47 Contracting States. All European Union member States and 39 of the 47 Council of Europe member States
are Parties to the Convention.
- The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter the “1980 Hague Child Abduction Convention”)
– aims to protect children from the harmful effects of their wrongful retention in or removal to a State other than their State of habitual residence. This Convention deals solely with the civil aspects of a child’s wrongful removal or retention and does not touch upon the question of possible penal law consequences of the removal or retention. Through the establishment of an international legal framework for the expeditious return of these wrongfully removed or retained children, the Convention assists in securing a continuous relationship of the child with both parents. The Convention prevents conflicting decisions on custody in the situation of a wrongful removal or retention of a child by forbidding the courts of the State to which the child was wrongfully removed (or in which the child is wrongfully retained) to take a decision on the merits of custody while return proceedings are ongoing. The Central Authority system set up by the Convention assists parents in abduction cases and also in cross-border contact cases in which no wrongful removal or retention has occurred. The 1980 Hague Child Abduction Convention is open for signature by all States and is currently (October 2017) in force for 98 States. All Council of Europe member States with the exception of Azerbaijan and Liechtenstein are Parties to this Hague Convention.
- The Charter of Fundamental Rights of the European Union (2010/C 83/02)
sets forth fundamental rights of European Union citizens and residents. The Charter, originally proclaimed in Nice in December 2000, has, as amended and proclaimed in December 2007, been given binding legal effect in the European Union with the entry into force of the Lisbon Treaty in December 2009.
- The Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (hereinafter “Brussels II bis Regulation”)
unifies in the European Union member States the rules on jurisdiction and recognition and enforceability of decisions and enforceable agreements in the field of parental responsibility and establishes a system of administrative State co-operation through Central Authorities supporting individuals in need of assistance in cross-border family disputes concerning parental responsibility. This Regulation is only applicable between EU member States (the Regulation does not apply to Denmark). It is important to note that the Regulation prevails over the 1996 Hague Child Protection Convention in matters covered by the Regulation, namely jurisdiction, recognition and enforcement. The 1980 Hague Child Abduction Convention remains fully applicable in the European Union but is supplemented by certain provisions of the Brussels II bis Regulation. Currently a recast of the Regulation is being discussed.
- The Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters
aims to promote the amicable settlement of disputes concerning civil and commercial matters by encouraging the use of mediation and by ensuring “that parties to mediation can rely on a predictable legal framework”.
All member States of the European Union, except Denmark, are bound by the Directive and had to comply with the Directive before 21 May 2011.
- The said European Convention on Human Rights of 4 November 1950
sets forth fundamental rights and freedoms, including the right to respect for private and family life (Article 8). To ensure the observance of the State Parties’ engagements, the Convention established the European Court of Human Rights in Strasbourg dealing with individual and inter-State petitions. All 47 member States of the Council of Europe have signed and ratified it.
- The European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (ETS No. 105) (hereinafter “1980 European Custody Convention”)
protects custody and access rights in international situations and creates a Central Authority system providing for free, prompt, non-bureaucratic assistance in discovering the whereabouts and restoring custody of wrongfully removed children. This Convention is open for signature by all Council of Europe member States as well as non-member States invited to accede to the Convention (see Articles 21 and 23). To date, 37 Council of Europe member States have ratified the Convention, including all EU member States except Slovenia.
- The European Convention on the Exercise of Children's Rights (ETS No. 160) of 25 January 1996
aims to protect the best interests of children and promotes the exercise of children’s rights in legal proceedings concerning the child. This Convention is open for signature by all Council of Europe member States as well as non-member States that have participated in the drafting of the Convention. Furthermore, other non-member States can be invited to accede to the Convention (see Article 22). To date, 20 Council of Europe member States have ratified it.
- The Council of Europe Convention on Contact concerning Children (ETS No. 192) of 15 May 2003
sets forth general principles to be applied to contact decisions as well as safeguards and guarantees to ensure the proper exercise of contact and the immediate return of children at the end of the period of contact. The Convention aims to establish co-operation between all relevant bodies and authorities and reinforces existing international legal instruments in this field of law. The Convention is open for signature by all Council of Europe member States and by non-member States that have participated in its drafting as well as by invited non-member States (see Articles 22 and 23). Nine Council of Europe member States have so far ratified it.
- Recommendation CM/Rec(2015)4 on preventing and resolving disputes on child relocation, adopted by the Committee of Ministers of the Council of Europe on 11 February 2015;
- The Washington Declaration on International Family Relocation, of 25 March 2010;
- Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, adopted by the Committee of Ministers on 17 November 2010;
- Recommendation No. R (84) 4 on parental responsibilities, adopted by the Committee of Ministers of the Council of Europe on 28 February 1984;
- Resolution 2079 (2015 ) “Equality and shared parental responsibility: the role of fathers”, adopted by the Parliamentary Assembly in October 2015;
- Recommendation No. R (98) 1 on family mediation, adopted by the Committee of Ministers of the Council of Europe on 21 January 1998;
- Guidelines for a better implementation of the existing recommendation concerning family mediation and mediation in civil matters, European Commission for the Efficiency of Justice (CEPEJ) (CEPEJ(2007)14);
- Principles for the establishment of mediation structures in the context of the Malta Process, drawn up by the Hague Conference’s Working Party on Mediation in 2010.
3. Problems to be resolved
![(28)
When
there is a problem with the execution of a foreign civil law judgment,
it is necessary to seize a judge in France to make the foreign judgment
enforceable in the country.](/nw/images/icon_footnoteCall.png)
![(29)
The
French position was motivated by the desire not to transfer the
responsibility for making decisions to the child, thus overburdening
the child.](/nw/images/icon_footnoteCall.png)
![(30)
X
v. Latvia, Application No. 27853/09, judgment of 26 November
2013 (Grand Chamber), paragraph 95.](/nw/images/icon_footnoteCall.png)
![(31)
Prel. Doc. No 8 B of
May 2011 – A statistical analysis of applications made in 2008 under
the Hague Convention of 25 October 1980
on the Civil Aspects of International Child Abduction.
Part II – <a href='https://www.hcch.net/upload/wop/abduct2011pd08be.pdf'>Regional
Report</a>, p. 10, <a href='https://assets.hcch.net/upload/wop/abduct2011pd08be.pdf'>https://assets.hcch.net/upload/wop/abduct2011pd08be.pdf</a>.](/nw/images/icon_footnoteCall.png)
![(32)
See Proposal COM(2016)
411 (supra footnote 13), at
p. 13.](/nw/images/icon_footnoteCall.png)
![(33)
Ibid.](/nw/images/icon_footnoteCall.png)
- introducing a new six-week deadline for the central authorities to receive and process the application, locate the respondent and the child, promote mediation (while making sure this does not delay the proceedings), and refer the applicant to a qualified lawyer or file the case with the court (depending on the national legal system);
- limiting the possibility to one appeal (with a separate six-week time limit applying to proceedings before the first instance court and the appellate court, respectively);
- abolishing the requirement of exequatur (which generates average delays per case of several months and costs of up to €4 000 for citizens);
- introducing an indicative time limit of six weeks for the actual enforcement of a decision (with a reporting requirement to the requesting Central Authority of the EU member State of origin/the applicant if the time limit is breached).
![(35)
While
the European Union claims to promote a world-wide ratification of/accession
to the 1980 Hague Convention, the actual acceptance of a third country’s
accession to the Convention is subject to a specific EU procedure
requiring the unanimous agreement of EU member States by means of
Council Decisions adopted in the interest of the European Union,
following an European Court of Justice Opinion of 2014. Ten such
Council Decisions have already been adopted, but “When considering
whether to accept an accession it is necessary to consider the third
State’s ability to implement the Convention effectively”. Reply
of the European Union to specific questions in the Questionnaire
on the Practical Operation of the 1980 Hague Convention on the Civil
Aspects of International Child Abduction, <a href='https://assets.hcch.net/docs/49f7bd34-7abf-40ac-bc77-4820a719ead3.pdf'>https://assets.hcch.net/docs/49f7bd34-7abf-40ac-bc77-4820a719ead3.pdf</a>.](/nw/images/icon_footnoteCall.png)
![(36)
In
France, roughly half of the cases of child abductions in cross-border
parental responsibility conflicts concerned other EU States, the
other half the States of the Maghreb (with which France also had
bi-lateral agreements covering the issue).](/nw/images/icon_footnoteCall.png)
![(37)
In
view of the above issues, some Contracting States have proposed
that the 1980 Hague Convention be reformed and a Protocol to the
Convention drawn up. The in-depth exploration of
the matter by the Sixth Special Commission to review the operation
of the instrument in 2011/2012 revealed a preference for further
developing and elaborating good practices under the Convention and
tools of guidance in order to make the instrument compatible with
new challenges and assist, in particular, newly acceding States
in applying the Convention’s return mechanism judiciously.](/nw/images/icon_footnoteCall.png)
![(38)
This seems to be less
of a problem in France, where there are more than 30 specialised
courts (since 2009), and two decrees (of 2012 and 2017) have put
into place clear and efficient procedures in child abduction cases.](/nw/images/icon_footnoteCall.png)
![(39)
The Court has repeatedly
held that States were in breach of their obligation under Article
8 of the European Convention on Human Rights when not taking effective
measures to ensure the expeditious return of children under the 1980
Hague Child Abduction Convention. See the fact sheet of the Court’s
Press Unit on International child abductions published in October
2016.](/nw/images/icon_footnoteCall.png)
![(40)
Thus,
for example, the European Commission’s 2016 proposal for the recast
of the Brussels II bis Regulation introduces
an obligation to give the child an opportunity to express his or
her views, using videoconferencing and other technical tools as
necessary.](/nw/images/icon_footnoteCall.png)
![(41)
Rouiller
v. Switzerland, judgment of 22 July 2014.](/nw/images/icon_footnoteCall.png)
![(42)
Of
particular relevance in this regard is the work of the Council of
Europe, see Recommendation No. R (98) 1 on family mediation later
followed by the 2007 Guidelines for a better implementation of the
existing recommendation concerning family mediation and mediation
in civil matters, both addressing the matter of cross-border family
mediation; furthermore, see the European Union Mediation Directive
aiming to set minimum common standards for cross-border family mediation.](/nw/images/icon_footnoteCall.png)
![(43)
The Hague Conference
has set up a Group of Experts, which is mandated to further explore
the matter and “to develop a non-binding ‘navigation tool’ to provide
best practices on how an agreement made in the area of family law involving
children can be recognised and enforced in a foreign State under
the 1980, 1996 and 2007 Hague Conventions”.](/nw/images/icon_footnoteCall.png)
![(44)
Thus, the Central Authority
arranged for mediation in only 42 cases in 2016.](/nw/images/icon_footnoteCall.png)
4. Conclusions and recommendations
- making the enforcement of a parental responsibility decision abroad simpler, speedier and less costly;
- widening the geographical scope of the key legal instruments and ensuring their proper application in all countries bound by them;
- better dealing with cases in which the abducting/non-returning parent is the primary or sole carer of the child/ren concerned;
- ensuring a proper specialisation of professionals concerned, and better co-operation between the Central Authority and other national authorities;
- seeking to guarantee that the view of the child concerned is heard and taken into account in an adequate manner;
- promoting properly (and internationally) recognised mediation services and agreements in cross-border parental responsibility conflicts.