Cross-border rights of access to children

1) OBJECTIVE

To ensure the effective exercise of rights of access to children of divorced or separated couples through the mutual enforcement of judgments handed down in one of the Member States.

2) PROPOSAL

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 [Official Journal C234 of 15.08.2000].

Replaced by:

Council Regulation (EC) No 2201/2003 of concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.

3) SUMMARY

Point 34 of the Tampere conclusions expressed the firm determination of the Member States to strengthen the mutual recognition of decisions or judgments, particularly in civil law. This initiative is designed to establish a genuine judicial area in which judgments relating to rights of access to the children of separated or divorced couples would be directly enforceable in the Member States. It regards the right of children to maintain regular contact with both parents as fundamental.

The initiative will apply to decisions on cross-border rights of access for children under sixteen taken pursuant to Council Regulation (EC) No 1347/2000.

Any judgment handed down by a Member State will be directly enforceable (no procedure necessary).

Enforcement of a judgment recognising rights of access may be suspended only on condition that:

• owing to a change in circumstances, exercise of rights of access would seriously endanger the child's physical or psychological health;
• it is irreconcilable with a judgment already enforceable.

In addition, only a judgment which has become res judicata declaring grounds for non-recognition or non-enforcement will prevent rights of access being enforced.

Proceedings challenging the exercise of rights of access will be governed by special arrangements, according to an emergency procedure.

This initiative is also designed to protect the interests of the parent with custody by ensuring that the child is returned to him or her when the visit is over. This means that the authorities of the Member State where the child is staying may not amend the foreign judgment being enforced. They will also have powers to order the child's return to his or her place of residence.

The establishment of a "national central body" in each Member State is designed to facilitate the close cooperation necessary to ensure the effective exercise of rights of access. The national bodies will take measures to:

• exchange information on the child's situation;
• facilitate parental agreement by conciliation, mediation or any other means;
• facilitate the voluntary exercise of rights of access while not ruling out recourse to coercive means as provided for by the national law of the Member States;
• keep each other informed of any difficulties encountered.

The central bodies will meet once a year, depending on need, at Council headquarters in Brussels.

The Commission will submit to the European Parliament, the Council and the Economic and Social Committee a report on the application of this Regulation, accompanied if need be by proposed amendments.

Last updated: 23.03.2004