European Standing
Committee B
Wednesday 22 January 2003
[Miss Ann Widdecombe in the Chair]
Matrimonial Matters and
Parental Responsibility
2.30 pm
The Chairman: Before I call the Minister to make an opening statement may I remind hon. Members that I want the Committee to be whirrless, ringless and bleepless? Communication devices must either function silently or not at all.
The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton): I welcome you to the Chair, Miss Widdecombe. This is my first appearance before the Committee. I hope that I understand the rules of engagement, but I know that I can rely on you to put me right if I do not. I am also glad that we are discussing such an important subject. I hope that the Committee will support me in expressing my thanks to the European Scrutiny Committee for recommending a debate on these matters, particularly on the child abduction parts of the regulation.
I should also like to thank members of the Scrutiny Committee for their supportive approach, particularly for their understanding of the sensitivity of the issues and timing, which allowed the Government to take the opportunity to reach agreement on the child abduction issues before the end of the Danish presidency. A vote of thanks is also due to my noble Friend Baroness Scotland who used her great experience of child abduction practice to play a leading role in negotiations in Brussels.
As freedom of movement within the EU increases, so does the number of cross-border family cases requiring decisions about the care and upbringing of children whose parents may live in different member states, and the potential for parental abduction of such children. The draft regulation aims to establish clear and consistent rules for deciding which courts should have jurisdiction to make such decisions and for ensuring that decisions made in one member state are recognised and can be enforced in any other. It also aims to improve the ability of courts in member states to combat international parental child abduction through specific rules on jurisdiction in cases following an abduction along with rules to maximise the likelihood of the child's return. The Government support both those aims and the specific provisions now agreed.
Getting there has taken a long time, starting with the adoption in 2000 of the Brussels II regulation. As well as rules determining which member state's courts should have jurisdiction in cross-border matrimonial proceedings, Brussels II provides similar rules for cases involving children. However, those cover only decisions about children in the course of matrimonial proceedings and then only the children of both spouses. There are no rules for decisions concerning
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stepchildren, or decisions about any children outside matrimonial proceedings.
The narrowness of those provisions was criticised, and this proposal aims to replace them with revised rules covering decisions about all children, regardless of the marital status of their parents and based on the idea that the best place to resolve disputes about parental responsibility is where the child habitually resides. The proposal also sets up a system of co-operation between member states through national central authorities. Those two elements were strongly supported on consultation and the Government see them as a positive step forward.
The original provisions relating to child abduction, however, caused great concern to the Government and to consultees. There is already a worldwide agreement: the 1980 Hague convention on the civil aspects of international child abduction. The convention is uniquely successful in its worldwide reach and effectiveness. It is in operation between the UK and no fewer than 55 other states, including all the EU member states.
The original proposal set out to replace the 1980 convention for intra-community cases with a scheme that consultees thought was complex, likely to increase litigation and overburden the authorities and, crucially, took insufficient account of the interests of the child. Moreover, replacing the Hague convention was seen as likely to send an extremely damaging message of lack of support from Europe that would undermine the convention's effectiveness worldwide. Those concerns were shared by a number of other member states. Eventually, after two years of deadlock, the presidency and the Commission put their weight behind a compromise solution, which the French, who had originally opposed this, were able to accept. The compromise proposal leaves the Hague convention in place and supplements it with extra provisions for intra-community cases to maximise the chances of returning the child.
First, they entrench best practice rules so that member states' authorities are bound by community law to apply them when applying the Hague convention. Secondly, if the Hague process ends in a non-return order, it will be possible under the regulation for the courts of the state where the child lived before the abduction to make a custody or residence order. Such an order will be enforceable provided that the concerns of the non-returning court are taken into account and time limits and procedural safeguards are observed. That gives the final say to the courts of the child's home state while taking proper account of the child's interests.
This agreement represents a significant step forward, which will complement and strengthen the operation of the Hague convention within the EU without undermining it worldwide. I commend the proposal to the Committee.
The Chairman: We have until 3.30 pm at the latest for questions to the Minister. I remind hon. Members that those questions should be brief and asked one at a time. That should guarantee ample opportunity for all hon. Members to ask several questions.
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Mr. Nick Hawkins (Surrey Heath): Thank you, Miss Widdecombe. I, too, welcome you to the Chair. If matters proceed as the Government intend today, when does the Minister expect that regulation will come into force so that it will apply right across the EU to every member state?
Ms Winterton: Some technical details regarding some proposals in the regulation still have to be sorted out. The one that has political agreement is the child abduction section. All things being equal, we hope it will be in force around July 2004.
Mr. Kelvin Hopkins (Luton, North): I am pleased about these proposals. I notice the reference to the possibility of their being extended to the European Economic Area, not just to the EU. Can my hon. Friend tell us more about that?
Ms Winterton: Certainly through the operation of the Hague convention it will certainly be possible for us to see the regulation as an example of best practice in terms of how the relationships within the EU itself work. We will look at whether it is appropriate to expand that further in due course, once we have been able to show how effective and constructive the proposals will be. We will then extend it to other areas.
Jane Griffiths (Reading, East): Will the Minister clarify the definition of ''habitual'' in cases of child abduction? It is not uncommon for there to be arrangements under which a child with separated parents may spend every summer holiday with one parent and the remainder of the year with the other. Although the summer holiday may not be a lengthy residence period, could it be deemed to be habitual, and could there therefore be deadlock between the two parties as to what was the habitual residence?
Ms Winterton: Questions may be asked about that, but we believe that, in most cases, it will be clear. It is likely, in the case of summer holidays, that that arrangement would have been decided previously by a court when looking at a residence order. The court would probably have said that the child would reside in the United Kingdom, for example, but would spend summer holidays elsewhere, and it would be clear from that where the child's habitual residence was.
In circumstances such as my hon. Friend has outlined, if there was no court agreement, it would be unusual for the court not to believe that the child's habitual residence was the place where he or she went to school. However, if there were arguments about it, they could be put to the court when a non-return order was being discussed, and the court would then make a decision on where the hearing should take place.
Mr. Robert Walter (North Dorset): The Minister will no doubt have noted from page 6 of the explanatory memorandum referring to article 2 definitions, under the heading of member states, that the proposal does not apply to Denmark. That is in conformity with the protocol on the position of Denmark, which is an annexe to the treaty. Will the Minister indicate what practical problems she envisages with that?
Ms Winterton: As I understand it, the Danes will soon sign up fully to the proposals, through the
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mechanism that is available to them. Obviously, many of the proposals came from the Danish presidency.
Mr. Hopkins: On the subject of Denmark, it seems that there is some urgency in getting the proposals through the process that we are undertaking at present, so that that process is completed under the Danish presidency rather than under future presidencies. According to the papers, the upcoming presidencies would not be so sympathetic to the proposals. Will the Minister elaborate on what the problems might be in that area?
Ms Winterton: I should not like to prejudge future presidencies. The important point is that there is agreement on almost all aspects of the content of the regulation, apart from a few technical details. With that in mind, and given the amount of time and careful negotiation it has taken to arrive at that position, I would be surprised if it were to be unwound.
John Barrett (Edinburgh, West): What provisions will there be for the right of the child to be heard in cases of abduction or separation?
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