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Resolution 2194 (2017)
Cross-border parental responsibility conflicts
1. More and more couples in Europe
are binational. This is a positive evolution, except in cases of separation.
Unfortunately, when the couple concerned has one or more children,
the often already difficult situation in terms of the sharing of
parental responsibility following a separation is further complicated
by different national legal systems, cultures and expectations,
and can lead to cross-border parental responsibility conflicts and
even child abductions.
2. The international and European legal instruments which govern
these situations are based on the concept of a fair balance being
struck between competing interests (those of the child, of the two
parents and of public order), while guaranteeing the primacy of
the child’s best interests. The objectives of preventing child abduction
and the immediate return of abducted children have been judged by
the European Court of Human Rights to correspond to a specific conception
of “the best interests of the child” in this context.
3. The 1980 Hague Convention on the Civil Aspects of International
Child Abduction and the 1996 Hague Convention on Jurisdiction, Applicable
Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility
and Measures for the Protection of Children, as well as the applicable
European Union regulations for European Union member States, thus
aim to protect children from the harmful effects of their wrongful
retention in, or removal to, a State other than their State of habitual
residence. For this purpose, these texts provide for common rules
on jurisdiction, applicable law, recognition and enforcement in
the field of parental responsibility and child protection. These
legal instruments establish a system of State co-operation through
“central authorities” that assist individuals concerned in each
contracting State in resolving cross-border family disputes and
set short deadlines for the court proceedings to return the child
to the State of his or her habitual residence.
4. However, in practice, the deadlines are seldom met, and the
enforcement of decisions taken can be complicated and costly. The
geographical scope of the key legal instruments remains limited
and they are not always properly applied, even in States bound by
them (as attested by several judgments of the European Court of
Human Rights). For example, the views of the child are not always
heard and/or adequately taken into account. In addition, cases in
which the primary or sole carer of the child abducts the child are
particularly difficult, as the abducting parent may not be in a
position to accompany the child back to the State of his or her habitual
residence, thus leading de facto to
a situation which may violate a child’s right not to be separated
from his or her parents and to maintain personal relations and direct
contact with both parents on a regular basis.
5. The Parliamentary Assembly thus recommends that Council of
Europe member States make the enforcement of a parental responsibility
decision abroad simpler, speedier and less costly, by:
5.1. helping to widen the geographical
scope of the key legal instruments and ensure their proper application
in all countries bound by them, including their own (for example,
by making information widely available to the general public and
professionals concerned);
5.2. streamlining the processing of cases of child abduction
or retention in the context of cross-border parental responsibility
conflicts, including by limiting the number of appeals possible
and by doing away with onerous requirements of exequatur for the
enforcement of decisions taken;
5.3. finding a way to better deal with cases in which the primary
or sole carer abducts or does not return the child or children concerned,
by giving particular weight to their views in such cases;
5.4. seeking to guarantee that the views of the child or children
concerned are heard and taken into account in an adequate manner
in all cases;
5.5. ensuring the proper specialisation of professionals concerned
and good co-operation between the central authority and other national
authorities;
5.6. promoting properly (and internationally) recognised mediation
services and agreements in cross-border parental responsibility
conflicts.