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Doc. 9370

11 February 2002

 

Draft Convention on contact concerning children

Report1

Committee on Legal Affairs and Human Rights

Rapporteur: Mrs Maria José López González, Spain, Socialist Group

Summary

The Assembly should welcome the timely drafting of a convention on contact concerning children. The draft convention aims at setting up an improved system of contact which would assist children in maintaining regular contact with both their parents, and with other people with whom they have family (or other) ties. The draft Convention is well-geared to the aims it is meant to achieve, and complements the other relevant international legal texts well.

While the draft convention on contact concerning children permits no reservations, it is drafted in a way which allows states considerable margins of appreciation. Considering that the draft Convention is, in most aspects, very modern and far-reaching, it would be preferable if the Convention could leave less to the domestic law of each state to determine. This is particularly true of the proposed innovative safeguards and guarantees enumerated in Article 10. Some of these provisions could perhaps even be further extended to cover punitive and criminal sanctions in appropriate cases, in particular when persons improperly remove or do not return children.

The Assembly should also recommend that the Committee of Ministers enrich the text of the provisions regarding the coordination between the administrative and judicial authorities, especially as regards the execution of contact orders and the return of children improperly removed, to ensure the best possible implementation of the convention later on.

I.        Draft opinion

1.        In the past decades, the incidence of child abduction by one of the parents – often over borders - has increased dramatically. Less well known, but equally worrying, is another trend, with the parent having custody of the child refusing to allow (national or transfrontier) contact with the other parent. As is so often the case, both trends hurt the most vulnerable most: the children caught in the middle, who are deprived of their right to maintain personal relationships with their parents - and with other people to whom they have close ties, for example grandparents or former foster parents.

2.        The Assembly thus welcomes the timely drafting of a convention on contact concerning children. The draft convention aims at setting up an improved system of contact which would assist children in maintaining regular contact with both their parents, and with other people with whom they have family (or other) ties. There can be no doubt that personal contact is the most important form of contact. The Assembly considers the draft Convention to be well-geared to the aims it is meant to achieve, and finds that it complements the other relevant international legal texts well.

3.        It is not absolutely certain that the same principles should apply to cases where children are in public care as to civil law cases between family members. Children in public care may need special considerations that have not been included in the draft Convention. However State Parties could be encouraged to extend the application of the Convention to include children in public care.

4.       The Assembly has long warned against the possible pernicious consequences of conventions drafted “ŕ la carte”, allowing State Parties to pick and choose which provisions they want to be bound by. The Assembly thus welcomes that the draft convention on contact concerning children permits no reservations. However, it regrets that the draft convention is nevertheless drafted in a way which allows States considerable margins of appreciation. Considering that the draft Convention is, in most aspects, very modern and far-reaching, it would be preferable if the Convention could leave less to the domestic law of each State to determine.

5.        This is particularly true of the proposed innovative safeguards and guarantees enumerated in Article 10. In the Assembly’s opinion, States should be encouraged to choose more than only three of the many measures proposed. In particular, State Parties should be obliged to choose at least one of the two latter options enumerated in Article 10.2.a. for ensuring that contact takes place, and two or more of those enumerated in Article 10.2.b. for ensuring that a child is not improperly removed or retained after a period of contact. Some of these provisions could perhaps even be further extended to cover punitive and criminal sanctions in appropriate cases, in particular when persons improperly remove or do not return children. (To make the draft convention more easily readable, the different measures in Article 10 should, in addition, be numbered in small Roman numerals, i., ii., iii., etc.).

6.        Chapter III of the draft convention focuses on measures to promote and improve transfrontier contact, defining the duties of central and judicial authorities in this field. The Assembly recommends that the Committee of Ministers enrich the text of the provisions regarding the coordination between the administrative and judicial authorities, especially as regards the execution of contact orders and the return of children improperly removed, to avoid problems in the implementation of the convention later on.

II.       Explanatory memorandum

      by Mrs López González, Rapporteur

A.       Introduction

1.       On 19 December 2001, the Chairman of the Ministers’ Deputies requested an opinion from the Parliamentary Assembly on the draft Convention on contact concerning children2. The inspiration for this draft Convention came from a Conference on family law held in Spain in April 1995 which recommended that the Council of Europe give further consideration to matters relating to access to children, in order to improve the machinery for international co-operation especially as regards transfrontier access to children in order to establish safeguards for the return of children after a period of access.

2.       In the past five years, the legal terminology concerning children has changed: for decades, the emphasis lay on parents’ rights to have access to their children. This emphasis has now shifted, and children are now recognised as holders of rights. Concerning the scope of this Convention, the right guaranteed to children by Article 9 of the United Nations Convention on the rights of the child is of primordial importance: the right of the child, who is separated from one or both parents, to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests. For this reason, the notion of “access to children” has been replaced in this draft Convention by the notion of “contact concerning children”. In fact, it is necessary to acknowledge the necessity for children to maintain personal relationships not only with their parents, but also with certain other people with whom they have family ties, providing this is in the child’s best interest.

3.        The problem this draft Convention addresses is one of a practical nature. A parent with whom the child usually lives may be reluctant to allow some or even any (national or transfrontier) contact with the other parent (or other persons having family ties with the child) to take place, on the basis of the – at times well-grounded – fear that the child will not be returned to him or her. On the other hand, a parent (or other person having family ties with the child) may disregard the custody decision which went against him or her, and, possibly frustrated by the limited contact allowed by the person who has custody of the child, take the child in order to ensure more regular contact. Such situations may be avoided, the authors of the draft Convention hope, if an improved system of contact would assist children in maintaining regular contact with entitled persons (parents or others).

4.        The draft Convention aims at setting up just such a system, by drawing up a framework of general principles which can be applied in a uniform manner by States in contact cases, whether or not there is an international element. This framework can be drawn upon not only by courts or other appropriate authorities, but can also form a basis for parties when making agreements on contact (for example, in the common law system). The draft Convention is thus designed to avoid situations in which other existing international legal instruments containing provisions on custody, contact, abduction, retention, habitual residence, and restitution of children3 would have to be applied, but

also to support these Conventions if these situations do arise, by providing substantial principles which should facilitate the ultimate enforcement of decisions under the other relevant Conventions.

B.       General principles of the draft Convention

5.        Article 1 of the draft Convention sets out three objects of the Convention:

6.        The draft Convention goes on to define the key concepts used. Interestingly, the concepts are defined as wide and inclusive as possible. For example, Article 2 a. identifies three levels of contact: direct contact (in person), contact in the form of communication (such as by telephone, letter or e-mail), and the provision of information about the child (e.g. the sending of recent photographs, school or medical reports, etc.). Article 2 b. defines contact orders not only as judicial decisions, but also as (judicially confirmed) private agreements between parties. And Article 2 d. defines family ties not only on a biological basis (parents, grandparents), but as anyone having a close relationship with the child – this includes, for example, former foster parents, a parent’s spouse or former spouse, or a person who has cohabited with the parent. However, most of these definitions are “framework” definitions. The draft Convention leaves it to the domestic law of each State to determine exactly who is to be legally recognised as having family ties with the child, whether contact is to be subject to the consent of the child, what the best interests of the child are, etc. The draft Convention is thus very modern in outlook, but allows States considerable leeway.

7.        Chapter II of the draft Convention (Articles 3 to 10) then fixes the general principles to be applied to contact orders. These principles might, again, be defined as “framework” provisions, fixing a minimum of common understanding, but allowing States considerable freedom to expand the scope of the provisions. An important novelty is Article 6 of the draft Convention, which guarantees children’s rights to be informed, consulted and to express their views, and stipulates that due weight shall be given to those views and to the ascertainable wishes and feelings of children. The regulation of disputes concerning contact, through Article 7, is also to be welcomed.

8.        The most innovative provisions in this Chapter are to be found in Article 10, which defines safeguards and guarantees for ensuring that the contact order is carried into effect, on the one hand, and that the child is returned or not improperly removed, on the other hand. States are free to choose three or more categories of safeguards and guarantees available under their law. The only obligatory provisions are the availability of the “supervision of contact” – option, as foreseen in Article 4.3., and of a procedure whereby orders relating to contact and rights of custody made in other States Parties may be recognised and declared enforceable in advance of contact being exercised within the State addressed (Article 14.1.b.). Since many of the provisions in Article 10, especially under Article 10.2.b., are very imaginative, and bound to be effective, it is somewhat regrettable that States are not obliged to choose more than three of the options available.

9.        In practice, especially as concerns transfrontier contact cases, I am informed that there are about as many parents who refuse the other parent contact despite a contact order (for fear the child will not be returned, or improperly removed), as there are cases of actual non-return or improper removal. Of the four guarantee possibilities offered in Article 10.2.a. to ensure that an order is carried into effect, the first two provisions are not necessarily in the interest of the “seeking” party, since he or she would surely prefer unsupervised contact, and would also probably prefer not to have to pay for the child’s (and, possibly, an accompanying person’s) travel expenses. Only the option of demanding the deposit of a security by the person with whom the child is usually living, and the imposition of a fine in the event of that person refusing to comply with the contact order, are in favour of the “seeking” party. At least one of the latter two options should thus be made compulsory for the States Parties.

10.       The guarantees and safeguards foreseen in Article 10.2.b., to ensure the return of the child and preventing improper removal, are far more drastic and complete, since they range from financial guarantees, charges on property, over the surrender of passports, to the obligation of the person having contact to present himself or herself and the child regularly before a competent body. One wonders whether it might not be advisable to extend some of these suggestions also to persons who refuse the other person contact. For example, the person seeking contact could be given the child by the person with whom the child usually resides at a youth welfare office, or another competent body.

11.        It might also be necessary to compel judicial authorities to be more permissive and to allow more transborder visits. Obviously, effective protection measures must be taken so that the return of the child takes place without difficulty, and that the visits are carried out in a way which guarantees the child’s personal security. One might even want to consider the possibility of criminal sanctions for persons who improperly remove or do not return children.

12.        Chapter III of the draft Convention focuses on measures to promote and improve transfrontier contact, defining the duties of central and judicial authorities in this field. It might be necessary to enrich the text of the provisions regarding the coordination between the administrative and judicial authorities, especially as regards the execution of contact orders and the return of children improperly removed.

C.       Conclusions and recommendations

13.       The draft Convention is well-geared to the aims it is meant to achieve, and complements the other relevant international legal texts well. The draft Convention is to be welcomed by the Parliamentary Assembly as an important instrument with the potential of reducing national and international problems concerning contact with children.

14.        While the draft Convention permits no reservations, which is very positive, it is nevertheless drafted in a way which allows States considerable margins of appreciation. Considering that the draft Convention is, in most aspects, very modern and far-reaching, it would be preferable if the Convention could leave less of a margin of appreciation. For example, such important aspects as the persons who are to be legally recognised as parents or as having family ties, the best interests of the child, etc, should perhaps not all be left to the domestic law of each State to determine.

15.        Similarly, it might be recommended that each State be obliged to choose more than only three of the many proposed innovative safeguards and guarantees enumerated in Article 10. State Parties should be obliged to choose at least one of the two latter options for ensuring that contact takes place, and two or more of those for ensuring that a child is not improperly removed or retained after a period of contact. Some of these provisions could perhaps even be further extended to cover punitive and criminal sanctions in appropriate cases.

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 9305 (Request for an opinion of the Committee of Ministers), Reference No 2686 of 21 January 2002

Draft opinion adopted unanimously by the committee on 23 January 2002

Members of the committee: Mr Lintner (Chairperson), Mr Magnusson, Mrs Gülek, Mr Marty (Vice-Chairpersons), Mr Akçali, Mr G. Aliyev, Mr Andican, Mr Arabadjiev, Mrs van Ardenne-van der Hoeven, Mr Attard Montalto, Mr Bindig, Mr Brejc, Mr Bruce, Mr Bulavinov (alternate: Mr Khripel), Mr Chaklein, Mrs Christmas-Mřller (alternate: Mrs Auken), Mr Clerfayt, Mr Contestabile, Mr Davis, Mr Demetriou, Mr Dimas, Mr Engeset, Mr Enright, Mrs Err, Mr Fedorov, Mrs Frimansdóttir, Mr Frunda, Mr Guardans, Mr Gustafsson, Mrs Hajiyeva, Mr Holovaty, Mr Jansson, Mr Jaskiernia, Mr Jurgens, Mr Kastanidis, Mr Kelemen, Mr Kostytsky, Mr S. Kovalev, Mr Kresák, Mr Kroll, Mr Kroupa, Mr Lacăo (alternate: Mrs Aguiar), Mrs Libane (alternate: Mr Cilevics), Mr Lippelt, Mr Manzella, Mrs Markovic-Dimova, Mr Mas Torres, Mr Masseret, Mr McNamara, Mr Michel (alternate: Mr Dreyfus-Schmidt), Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu, Mrs Pasternak, Mr Pellicini, Mr Penchez, Mr Piscitello (alternate: Mr Budin), Mrs Postoica, Mrs Roudy (alternate: Mr Masson), Mr Rustamyan, Mr Skrabalo, Mr Solé Tura, Mr Spindelegger, Mr Stankevic, Mr Stoica, Mrs Stoisits, Mrs Süssmuth, Mr Svoboda, Mr Symonenko, Mr Tabajdi, Mr Tallo, Mr Tepshi, Mrs Tevdoradze, Mr Uriarte, Mr Vanoost, Mr Vera Jardim, Mr Volpinari, Mr Wilkinson, Mrs Wohlwend

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the committee: Ms Coin, Ms Kleinsorge, Mr Ćupina

1 See Doc 9305.

2 In preparation of the meeting of the European Committee on Legal Co-operation (CDCJ) at the beginning of December 2001, the Committee had already been unofficially asked to consider the matter, and an introductory memorandum was in the Committee’s files at its meeting in Paris on 26 November 2001.

3 The most important international legal instruments in this field being:

a.       the Hague Convention of 5 October 1961 on the competence of authorities and the applicable law concerning the protection of minors,

b.       the European Convention on the recognition and enforcement of decisions concerning custody of children and on restoration of custody of children of 20 May 1980, subject to Article 19 above,

c.       the Hague Convention of 25 October 1980 on the civil aspects of international child abduction,

d.       the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children,

e.       the Council Regulation (European Community) No. 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgements in matrimonial matters and in matters of parental responsibility for children of both spouses.