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C 14/82 EN Official Journal of the European Communities 16.1.

2001

III. CONCLUSION stage in the construction of Europe. This is shown by the
Commission’s document. The Committee’s present and future
It is likely, indeed probable, that the adoption of a ‘social wish is to train the spotlight on this new trajectory and to help
agenda’ would represent a water-shed, rather than just another make it as successful as possible.

Brussels, 19 October 2000.

The President
of the Economic and Social Committee
Göke FRERICHS

Opinion of the Economic and Social Committee on the ‘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’

(2001/C 14/17)

On 27 July 2000 the Council decided to consult the Economic and Social Committee, under Article 262
of the Treaty establishing the European Community, on the above-mentioned initiative.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee’s work on the subject, adopted its opinion on 3 October 2000. The rapporteur was
Mr Retureau and the co-rapporteurs were Mr Burnel and Mr Rodrı́guez Garcı́a Caro.

At its 376th plenary session of 19 October 2000 the Economic and Social Committee adopted the
following opinion with 106 votes in favour, one vote against and one abstention.

The Council has consulted the Economic and Social Committee of access to children. It is essential that judgments on such
on a proposal for a Council Regulation on the mutual disputes given in one Member State be recognised and enforced
enforcement of judgments on rights of access to children. This in the other Member States by the competent judicial and
proposal, instigated by France, contributes to the gradual administrative authorities.
reinforcement of judicial cooperation in civil matters and its
communitisation.

1.3. The political will of states to reinforce the mutual
recognition of judgments, particularly in civil matters, was
1. Introduction: judicial cooperation and the internal clearly expressed in paragraph 34 of the conclusions of the
market Tampere European Council (15 and 16 October 1999). The
proposal for a Regulation on rights of access to children is a
direct result of this.
1.1. The internal market and the principle of freedom of
movement create a need for judgments on civil and commercial
matters given in one Member State to be recognised and
enforced in another Member State, in the interests of legal 1.4. Various conventions between states have been drawn
certainty with regard to financial transactions, contracts, and up on this subject, in accordance with the law of international
the movement of persons, goods and capital. conventions, the main two European ones being:

1.2. One of the effects of the free movement of persons in — The Brussels Convention of 27 September 1968 on
the internal market is the creation of family relations between Jurisdiction and the enforcement of judgments in civil
nationals or residents of different countries, between whom and commercial matters and the Luxembourg Protocol of
disputes may arise, particularly in the event of divorce, with 3 June 1971 on the Interpretation of this convention by
regard to the exercise of parental authority, custody and rights the European Court of Justice;
16.1.2001 EN Official Journal of the European Communities C 14/83

— The Brussels Convention of 28 May 1998 on jurisdiction, mentioned Brussels Convention of 1998 — commonly
recognition and enforcement of judgments in matri- referred to as ‘Brussels II’ — of which it extends the scope and
monial matters. adapts certain provisions.

Mention must also be made of the Hague Convention of
25 October 1980 on the Civil aspects of international child 1.7. The regulation is limited in scope; it is solely concerned
abduction (particularly Article 13); the Hague Convention of with civil proceedings relating to divorce, legal separation or
19 October 1996(1) on Jurisdiction, applicable law, recog- marriage annulment, and proceedings relating to parental
nition, enforcement and co-operation in respect of parental responsibility for minor children of both spouses (parental
responsibility and measures for the protection of children; and authority, custody, access rights, alimony, etc.).
the Council of Europe’s European Convention on Recognition
and enforcement of decisions concerning custody of children
and on restoration of custody of children of 20 May 1980,
which constitute the relevant international instruments in the 1.8. The Committee notes in this respect that insufficient
area of family law, as well as the United Nations 1990 attention has thus far been paid at Community level to the
Convention on the Rights of the Child. concept of families in general and de facto or ‘natural’ families
in particular, despite the fact that the latter are an important
fact of life in most Member States and that an increasing
number of children are today born to unmarried parents (5).
1.5. Since the Treaty of Amsterdam, matters of inter- The Committee urges Community institutions to include
national private family law come under the first pillar, this issue in their work programme — particularly the
specifically the area of judicial cooperation in civil matters Commission, in its programme of measures for mutual
(Article 65) and the new Title IV of the EC Treaty. The recognition which it is preparing for the end of the year.
proposed regulation must therefore be adopted in accordance
with the procedure laid down in Article 67, whereby the
Council takes a decision by unanimity. The Council has the
right of initiative in civil matters for a period of five years 1.9. The Committee considers it a matter of urgency to
dating from the entry into force of the Amsterdam Treaty on align rules regarding jurisdiction and recognition of judgments
1 May 1999. concerning de facto families with those which exist for de jure
families, particularly in the interests of children.

1.6. The ESC recently adopted an opinion (2) on the pro-
posal for a Council Regulation (EC) on Jurisdiction and the
recognition and enforcement of judgments in matrimonial
matters and in matters of parental responsibility for joint 2. Analysis of the content of the draft regulation on the
children (COM(1999) 220 final — 99/0110 CNS). mutual enforcement of judgments on rights of access
to children

Regulation (EC) No 1347/2000 was finally adopted on 29 May
2000 (3). It will enter into force on 1 March 2001 (4). The
choice of a regulation was justified by the need for standardised 2.1. This draft regulation, submitted to the Council on the
rules, which could be directly applied in the areas of jurisdic- initiative of France, is still under discussion at the Council. The
tion, recognition and enforcement of judgments relating to the Parliament will debate the regulation at the same time as the
dissolution of matrimonial ties and custody of children. Committee.
Definitions of legal concepts and the scope of the text can
be found in the above-mentioned opinion. This regulation
constitutes the application at Community level of the above- 2.2. The proposed regulation is a derogation from Regu-
lation (EC) No 1347/2000 with a very narrow focus: the
exercise of rights of access to children under 16 in a Member
State other than the Member State having ordered the other
(1) This new convention has not yet entered into force on account of parent to grant these rights, including the right to take a child
the insufficient number of ratifications. for a limited period of time to a place other than the child’s
(2) Opinion of 20 October 1999, rapporteur Mr Braghin, OJ C 368, habitual residence (Chapter I, Scope).
20.12.1999.
(3) OJ L 160, 30.6.2000.
(4) Denmark is neither bound by nor subject to the application of
Regulation (EC) No 1347/2000 of 29 May 2000, in accordance
with Articles 1 and 2 of the Protocol on the position of Denmark (5) Information report (own-initiative) by rapporteur Mr Burnel (CES
annexed to the EU Treaty and the EC Treaty. Ireland and the 930/1999 fin) of 16 April 2000 on The demographic situation in
United Kingdom have chosen to be bound by the Regulation and the EU and future prospects; see also Statistics in Focus, Theme 3
to be subject to its application. The particular situation of these — 10/200, published by Eurostat: First results of the demographic
countries is a result of Article 3 of the Protocol on the position of data collection for 1999 in Europe, Table 3: Fertility, which shows
the United Kingdom and Ireland annexed to the EU Treaty and that in 1998 26 % of all children born in the EU were born
the EC Treaty, under which they can choose whether or not to be outside marriage and that this figure has been steadily rising over
bound. a long period (9.6 % in 1980).
C 14/84 EN Official Journal of the European Communities 16.1.2001

2.3. The draft Regulation would remove the need for access of the date on which the parent with rights of access made his
rights granted in accordance with a judgment, as defined in or her submissions regarding the application lodged by the
Article 1 of Regulation (EC) No 1347/2000, given and parent required to grant these rights. The judgment will be
enforceable (even provisionally) in a Member State to be enforceable even if an appeal against the judgment is pending
enforced in another Member State by means of a special (i.e. the appeal is not a stay).
procedure; i.e. such rights would be directly enforceable (1).
The state enforcing the judgment in accordance with the
Regulation would employ the same means of enforcement as
it would use in its own territory to enforce a similar judgment
2.5. Although the competent authority of the state in which
given by its own competent authorities (Chapter II, Mutual
the child is staying may arrange for immediate, provisional
recognition of the enforceability of judgments on rights of
protection of the child in the event of an overriding need, that
access).
authority may not take jurisdiction to amend the judgment
which is being enforced (Chapter IV, Amendment of the order).

2.4. An action brought before the courts of the Member
State in which a child is habitually resident to prevent 2.6. Chapter V deals with the return of the child. The basic
enforcement of visiting rights (Chapter III) or the right to have principle is that at the end of the period of access specified in
the child to stay in another Member State may be upheld only the judgment of the country of origin, the child is to be
in two cases: returned to the parent with custody. If the child is not returned,
the parent with custody may apply to the competent central
body — either that of the country where the child is staying
a) where, owing to a change in circumstances since the or that of the child’s habitual residence — for the child’s
initial judgment, the exercise of rights of access or rights prompt return.
to have a child to stay in another Member State would
pose a serious, direct risk to the child’s physical or
psychological health;
The competent authorities of the Member State where the
child is staying must then order the prompt return of the child;
b) where the judgment is irreconcilable with a judgment the parent with rights of access is not entitled to challenge the
already enforceable in the territory of the Member State order, even by invoking proceedings in progress, a judgment
where the visit is to take place. given — or likely to be given — in his or her state, or the
Hague Convention, in the alleged interests of the child.

The procedure for making and serving the application for
proceedings by the parent required to grant rights of access, in
which he or she challenges the exercise of those rights by the 2.7. Lastly, the proposal deals with cooperation between
other parent, shall be governed by the law of the Member State Member States (Chapter VI) as well as the monitoring of the
of residence of the parent with rights of access. application of the regulation and any future modifications
(Chapter VII, final provisions).

Proceedings for the establishment of grounds for non-recog-
States are to cooperate with each other via the competent
nition or full or partial non-enforcement of a judgment will
central bodies they designate, to ensure the effective exercise
result in suspension of enforcement only if a judgment to that
of rights of access and to guarantee the child’s return at the
effect already exists which has become res judicata.
end of his or her stay. They are to protect the child’s interests
and the respective rights of the parents, inter alia by compelling
parents, if necessary, to respect their obligations.
Proceedings commenced by the parent required to grant rights
of access, in the two cases in which non-enforcement is
possible, will be dealt with under an emergency procedure in
The authorities are to exchange information on the law of their
which both parties are heard, as well as the child in some
states, on the child’s background and any other information
cases, if appropriate, having regard to the circumstances and
necessary for carrying out their work, including information
to the child’s understanding. The corresponding judgment
on any difficulties they may encounter.
shall be given by the competent appeal court within eight days

Anyone who has obtained a judgment in his or her favour and
who is encountering difficulties in exercising his or her
(1) Denmark will not be bound by any future Regulation; Ireland and rights may apply to these authorities, producing documentary
the United Kingdom will give notice in due course of whether evidence of these rights, as detailed in Article 13 of the draft
they agree or refuse to be bound. regulation.
16.1.2001 EN Official Journal of the European Communities C 14/85

2.8. The Commission is to submit a report to the European 3.3. The provisions for challenging the exercise of rights of
Parliament, the Council and the Economic and Social Com- access and the corresponding proceedings (Articles 4 to 8),
mittee, five years after the entry into force of the regulation, and the implicit recognition of the right of the state in which
accompanied, if need be, by proposals for modifying or the child is staying to take appropriate measures to protect the
adapting the regulation. The central bodies are to cooperate child and his or her physical and psychological health
on the report. (Article 9) appear to provide sufficient guarantees for the
child’s protection. Enforcement of rights of access may only
be prevented in cases where, owing to a change in circum-
Member States are to provide the Commission with full stances, the exercise of these rights would pose a serious, direct
information on the central bodies, the courts, the competent risk to the child’s physical or psychological health. Similarly,
national authorities and the means of obtaining redress set out in cases where an irreconcilable judgment which has become
in the annexes to the regulation. res judicata exists in the country in which the child is to stay,
the parent who has custody may refuse to send the child to
that country. At the same time, the fact that any challenge to
the exercise of rights of access is dealt with under an emergency
The central bodies will meet periodically at the Council’s procedure precludes any delaying tactics and prevents the
headquarters to exchange experience and seek solutions to any proceedings becoming an unjustified long-term obstacle to the
practical or legal problems which they encounter in the exercise of these rights, while ensuring the protection of the
framework of their cooperation and in the implementation of child’s interests should the proceedings prove to be justified.
the regulation. A report will be drawn up after each meeting
for the attention of the Member States and the Commission.
The Committee is therefore satisfied in general with these
provisions for safeguarding the overriding interests of the
child, as well as the rights of his or her parents, who have
access to rapid means of redress which respect the rule that
3. General comments both parties shall be heard.

3.1. The Committee notes that the proposal for a Council The Committee calls, however, for the right of the child to be
Regulation constitutes a derogation from Chapter III, Section 2 heard by the judge to be interpreted as broadly as possible,
(‘Enforcement’) of Regulation (EC) No 1347/2000, but only and for the judge to be required to take account of what the
with regard to the exercise of rights of access or rights to have child says; furthermore, the child should have the right to his
a child to stay which have been granted in a judgment given or her own legal representation in order to safeguard his or
in application of Article 1. her specific interests.

The Committee believes this derogation to be justified in that 3.4. In the Committee’s view, the proposal also has the
it allows the interests of the children concerned to be better advantage of furthering judicial cooperation in parental and
taken into account. For it is in the child’s interest to maintain family matters, and in particular it helps to increase trust in
regular relations with the parent who does not have custody the judicial institutions and law of all the Member States and
but who has been granted rights of access and rights to have to enhance compliance with judgments given by the competent
the child to stay in a judgment which has become res judicata. authorities on matters of rights of access or rights to have a
It is also in the parent’s interest to maintain relations with his child to stay, concerning the joint children of separated
or her child(ren), regardless of where the parent or the spouses who live in different Member States.
child(ren) live in the EU (with the exception of those countries
not bound by the regulation — see footnotes p. 83 and p. 84).
A continued direct relationship between a parent and child
who live apart makes a vital contribution to the child’s This regulation, which despite its limited scope is important in
education and the development of his or her personality. human terms for both children and their parents, serves to
further awareness of Community issues and citizenship in
Europe, whilst aligning family law and procedures, mainly
through the cooperation it sets in motion, but also through
3.2. In the Committee’s view, this proposal for a regulation the promotion of greater mutual understanding on the thorny
aims to facilitate the exercise of rights of access or rights to and complex issues of international private law.
have a child to stay; at the same time it ensures that the child
does not become hostage to a dispute between his or her
parents, living in different Member States; that the parent with
rights of access does not use legal proceedings or delaying 3.5. The Committee therefore endorses the spirit and aim
tactics, for example, to challenge the judgment in which the of the draft regulation, and it hopes that the final text will not
nature and limits of his or her rights with regard to the child differ substantially from the draft. The Committee intends to
are specified; and that the parent with custody cannot take monitor closely the progress of this issue and the follow-
action of a similar kind to avoid meeting his or her own up activities resulting from the adoption of the proposed
obligations. regulation.
C 14/86 EN Official Journal of the European Communities 16.1.2001

4. Specific comments takes account of the child’s psychological development and
level of understanding, as well as of the relative independence
of adolescents.
4.1. With regard to the references to relevant international
public law, the Committee believes that it is justifiable for The Committee considers this threshold to be appropriate,
Community law to develop in a manner conducive to the even if minors (generally persons under 18) are deemed to be
gradual convergence, alignment or standardisation — as children by various international conventions. In most
appropriate — of the law of the Member States, in accordance countries minors of 16 can be declared as being of age by the
with the Treaties and the commitment of the Member States person(s) having parental authority, which shows that the law
to forming a Union based on law and democracy, cooperation acknowledges that these adolescents are capable of making
and peace. In relation to existing international law, the Union, their own decisions in life and managing their own interests,
is an entity which is sui generis or unique, with its own whether material (for example for the purposes of managing
channels, constantly evolving, both spatially and temporally. assets or running a business), psychological or emotional.

Because of this specific feature, the relevant negotiators should The Committee notes that a legal discrepancy could exist
seek to obtain in the international treaties they ratify or to regarding children aged between 16 and 18; in the absence of
which they accede, as often as necessary, an opt-out clause any specific provision, Regulation (EC) No 1347/2000 would
which respects the autonomy and precedence of Community apply to them.
law to which the Member States are subject. In other words,
the approach adopted when applying the 1998 Brussels 4.3. Finally, the Committee deeply regrets that the current
Convention within the Community in an appropriate and state of cooperation in civil matters is characterised by
standardised manner, in the form of Regulation (EC) No excessive overcautiousness, and that family law is only
1347/2000 — which is not an exact copy of the Convention addressed in a limited manner, for example so that the rights
but is adapted to the Community and its specific legal, cultural of the de facto family and the children of such families are
and social features — should become a general principle, not recognised and implemented within the Community
which is recognised by the non-Community states which are framework.
party to the same international conventions.
It is to be hoped that this situation will be remedied very
quickly, in the interests of equity, a realistic approach to
4.2. The Committee considers that setting an age limit of developments in society, and the principle of equal rights and
16 for children concerned by the application of the regulation obligations for all citizens of the Union.

Brussels, 19 October 2000.

The President
of the Economic and Social Committee
Göke FRERICHS