Dáil Éireann debate -
Tuesday, 10 Oct 2000

Vol. 523 No. 4

Fourth Protocol to the Treaty of Amsterdam: Motion.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

I move:

That Dáil Éireann approves the exercise by the State of the option, provided by Article 3 of the fourth Protocol set out in the Treaty of Amsterdam, to notify the President of the Council of the European Union that it wishes to take part in the adoption and application of the following proposed measure:

a proposal for a Council Regulation (EC) on the mutual enforcement of judgments on rights of access to children (O.J. No. C234, 15,8.00, p.7) copies of which proposed measure were laid before Dáil Éireann on 3 October 2000.

The need for this motion arises because of the Eighteenth Amendment to the Constitution which enabled Ireland to ratify the Amsterdam Treaty and allowed the State to exercise certain options contained in that Treaty including the option in the fourth Protocol. Under the terms of the constitutional amendment, such exercise is subject to the prior approval of both Houses of the Oireachtas.

The Treaty of Amsterdam, which came into operation on 1 May 1999, added to the EC Treaty a new Title IV which deals with visas, asylum, immigration and other policies related to the free movement of persons including judicial co-operation in civil matters. The fourth Protocol to the Amsterdam Treaty establishes the positions of Ireland and the United Kingdom in relation to the issues arising under Title IV. Its effect is to exempt both countries from all the provisions of Title IV but to permit either or both to opt into particular measures under the terms and conditions set out in the Protocol. Under article 3 of the Protocol, the State has three months from the date a proposal or initiative is presented to the Council of Ministers to notify our wish to take part in the adoption and application of the measure. We may also accept a measure any time after it has been adopted.

It is important to point out that the conference which adopted the Amsterdam Treaty took note of a declaration by Ireland that it intended to exercise its right under article 3 of the Protocol to take part in the adoption of measures pursuant to Title IV to the maximum extent compatible with the maintenance of the common travel area with the United Kingdom. It follows from this that our predisposition in relation to measures such as the one we are now discussing is to participate in their adoption. This will be the seventh occasion on which the approval of both Houses will have been sought for the State to exercise the option provided in the fourth Protocol in respect of a proposal for an EU legal instrument.

Under Article 65 of the Amsterdam Treaty, judicial co-operation in civil matters includes, among other things, measures aimed at improving and simplifying the recognition and enforcement of decisions in civil and commercial cases. Formerly, judicial co-operation in civil matters was dealt with under the Third Pillar of the Maastricht Treaty, which was largely intergovernmental in nature. The Amsterdam Treaty changed that by including this subject in the EC Treaty, that is the First Pillar. For a transitional period of five years from the coming into force of the Amsterdam Treaty member states share with the Commission the right to table initiatives. The draft regulation we are now discussing is an example of a proposal made by a member state, in this case France which, as it happens, currently hold the Presidency of the Council of Ministers.

The consequence of the presentation of this measure by France to the Council, is that if the State wishes to opt in to its adoption we have until 13 October to inform the President of the Council of our intentions. Failure to opt in at this time does not prevent us from participating in relevant meetings of the Council working parties which will discuss these proposals. However, we would not be able to opt in until the negotiations were concluded and the measure adopted and our ability to influence the outcome of the discussions would be correspondingly limited.

In October 1999 the European Council at a meeting in Tampere, Finland, on the creation of a European area of freedom, security and justice, highlighted the need to establish a genuine European judicial area. In that regard, the Council endorsed the principle of mutual recognition of judicial decisions and judgments. Judgments in the area of family litigation, including those relating to access rights, were considered by the European Council as being appropriate for early action to promote this principle.

This draft regulation aims to ensure the effective exercise in one member state of rights of access ordered in another member state and the return of the child to the custodial parent once rights of access have been exercised. The scope of the regulation as it stands is confined to children of a marriage. The regulation addresses the right of children to maintain regular contact with both parents, whatever the parents' place of residence. The draft regulation is essentially a modification of the Brussels II Regulation on the recognition and enforcement of judgments in matrimonial matters and in matters of joint parental responsibility for children. Article 14 of the draft regulation provides that Brussels II shall apply to the judgments covered save where otherwise provided in this draft.

The principal features of the draft regulation are: first, it relates to children of a marriage who are under the age of 16 when enforcement of a judgment is sought; second, a judgment on rights of access which has been given and is enforceable in a member state, even provisionally, can be enforced in any other member state without the need to obtain a declaration of enforceability in the latter State. This is a derogation from Brussels II which requires a declaration of enforceability; third, enforcement of the access order may only be suspended in limited circumstances, namely, if enforcement of the order would put the child's interests at serious risk or if there is another enforceable judgment which is irreconcilable. However, while enforcement may only be suspended in these circumstances, the custodial parent can bring proceedings for a decision that the order should not be recognised or enforced on the grounds set out in the Brussels II regulation but, unless and until the court decides in the custodial parent's favour, the order will not be suspended and will continue to be enforced; fourth, if the child is not returned to the parent with custody rights at the end of the period of access, the custodial parent may apply in the host state for the prompt return of the child and the court must order the return of the child notwithstanding grounds of local jurisdiction or grounds under the Hague convention on child abduction, to which Ireland is a party, which may exist for refusal and, finally, central authorities are to be established by member states to exchange information, to encourage voluntary return of children and to arrange any necessary legal proceedings.

This measure will supplement existing international and EU law in the area. Many Deputies will already be aware that Ireland is, along with the other EU states, a party to the Hague and Council of Europe conventions on child abduction which provide for the return of children to the place from which they have been wrongfully abducted by a parent and also cover the case where a child is wrongfully retained under access arrangements in another state. Those conventions, particularly the Hague convention, which are administered by my Department, have operated with considerable success over the years. A difficulty with the Hague convention is that, although it is intertwined with international abduction cases, it does not adequately address the problem of enforcing access rights.

Certain of those difficulties are addressed in the 1996 Hague Convention on the Protection of Children. Ireland has taken a leading role among EU states and elsewhere by bringing forward legislation to enable ratification of that convention. Australia and New Zealand are preparing similar legislation. Our legislation is the Protection of Children (Hague Convention) Bill that is at present before the Seanad, having been passed by this House. The EU proposal we are now discussing is framed in a different way from the 1996 convention and is confined to children of a marriage. Nevertheless, the EU initiative proposed by France is indicative of the importance that attaches to the subject of access orders.

Having been presented to the Council of Ministers, work on the draft regulation is now to proceed in a Council working party and the outcome of negotiations in the Council framework will be submitted in due course for decision by the Justice and Home Affairs Ministers. It is fair to say that, based on the discussions which have taken place to date, two aspects of the proposal which are giving rise to some concern on the part of at least some member states are, first, the provision that a declaration of enforceability will not be necessary in the requested state and, second, the exact circumstances in which enforcement of an order can be suspended. It is clear that a good deal of revision of the regulation will be required before it is acceptable in full to member states, including Ireland. I will take account of points that may be made by Deputies on any aspect of the proposal.

Opting in at this stage does not imply that we will approve of everything in the proposal as it now stands but it gives us the scope to participate to maximum effect in the development of the measure. It is important that Ireland respond positively by exercising our right to opt in now so we can play a full and constructive part in the negotiations at working party level and, ultimately, in the Justice and Home Affairs Council. I commend the motion to the House.

Mr. Shatter

I support the Minister in his approach of opting in as opposed to opting out. It is most important that we have co-operative arrangements in place on a Europe wide basis not only to ensure the enforcement of custody orders relating to children but to ensure that where courts in one member state make access or contact orders to provide that a child primarily in the care of one parent spends time with the other parent, those orders will be complied with.

The draft regulation states something of crucial importance which is sometimes lost in the midst of marital or parental conflict and when relationships break down, that is, that access rights relate to the rights of children, not primarily the rights of parents. Each parent should spend time with his or her child and contribute to the child's upbringing. However, the most important issue, which parents at war with each other frequently forget, is that a child's fundamental right is to maintain regular contact with both parents. That right should be guaranteed by the legal systems operating throughout the European Union.

It is in recognition of the child's fundamental right that this regulation, in its draft form, is of importance. We should not diminish the rights and entitlements of parents. However, often parents in the exercise of their rights seek in the midst of family conflict to deprive their child of contact with the other parent. This reinforces the view that the primary person whose welfare should be considered in the exercise of access and contact rights is the child.

I welcome the opportunity to discuss the content of this draft provision. While I welcome the Minister's approach in principle and the fact that we are opting in, what is being presented is grossly defective. There is a need for fundamental revision of the draft regulation. It is most unfortunate that, despite being in a new millennium, a regulation from the European Union dealing with issues of access or contact should seek to put in place a discrimination between children of a marriage and children outside a marriage. One third of the children born in this State are born outside marriage. Our courts regularly deal with disputes concerning the guardianship and custody of children born to parents outside marriage and the access or contact rights of parents with whom the child does not primarily reside. In the majority of instances the child is in the custody of a mother and the father seeks access or contact rights.

There are regulations and provisions in force across the European Union which provide for co-operation between member states in the enforcement of maintenance support orders requiring both married and unmarried parents to provide maintenance support for their children. It is introducing an unfortunate discrimination to the new co-operative justice regime under the aegis of the European Union that this directive only seeks to guarantee to children their right to have contact with a married parent as opposed to an unmarried parent. If the focus is as it should be, that is, on the fundamental right of children to maintain contact with both their parents, we must refocus on something which this House acknowledged in 1987 with the enactment of the Status of Children Act. Discriminations in the context of a child's right to be involved with each of his parents should not be brought into law to distinguish between a child born to married parents and a child born to unmarried parents. No child currently having access to an unmarried parent had any say in the circumstances which gave rise to his or her conception.

While it is welcome that France has proposed this regulation, I urge the Minister to seek to have it amended so that it is not confined in its scope to children of a marriage but extends to all children. I hope the Minister will try to achieve that end in the negotiations. I look forward to his response on that issue when he replies to this debate.

Wearing my other hat of an occasionally practising lawyer in the area of family law, there is one issue of major concern to both married and unmarried parents when their relationships have broken down, they are leading separate lives and one parent has custody of a young child and the other has contact rights where one parent resides in one state and the custodial parent resides in another state. It is the major worry of the custodial parent that if access is exercised outside this State and if the non-custodial parent does not return the child to the custodial parent at the end of the agreed or court ordered access period, substantial difficulty may be experienced in having the child returned to this jurisdiction.

The Luxembourg and Hague conventions address these issues and there are other provisions in place that are relevant. The reality in relation to the child abduction conventions is that some member states are more efficient in regarding child abduction as an issue that requires urgent judicial decision than others. Some states are extremely slow where a child has been retained wrongfully to have the case which comes before the state's courts heard, dealt with and resolved. There have been occasions when, due to the pressures courts have been under, they have not always dealt with such cases as speedily as they should. This is a matter about which our Supreme Court has been critical.

In the context of the negotiation of this regulation, the Minister should ensure proper arrangements are in place that genuinely implement Chapter V in its current draft form and which guarantee and ensure, in the context of access being exercised to any child outside this State whose custodial parent resides in this State, that at the end of the access period, should the non-custodial parent not comply with the arrangements in force there is an immediate and prompt return to this jurisdiction of the child who has been retained wrongfully.

The Minister should name the states with which there have been difficulties in getting speedy compliance with provisions under the Hague and Luxembourg conventions. It is my understanding that there are difficulties with some states. There should be a European-wide, efficient system that guarantees children access to parents where they are living in separate states and ensures a prompt return of a child to the cus todial parent. It is essential that states who have not promptly complied with their existing obligations are required to do so and that this provision, when it comes into force, is not tainted by their failure to comply with the provisions and intent of Chapter V.

Will the Minister indicate the timeframe in which it is envisaged member states may agree on the final version of this new provision and when does he anticipate it will come into force? To come into force, will it require agreement on behalf of all EU member states or will it come into force partially on each member state becoming a signatory to the final terms of what is stated? Will the final version of what is agreed be brought before this House for its approval before the State is bound by its provisions? All these issues are matters of considerable importance because this issue will affect many families in the State, particularly those whose marriages have broken down. There is an onus on the Minister to ensure this regulation applies to all children and facilitates all children in having proper access to parents who live outside the State. This should not be confined solely to children born to parents who are married to each other.

Ms O'Sullivan

I support the Minister's decision to opt in at this stage rather than wait until later. However, he might outline the benefits of opting in and in what way can Ireland influence the final form of the regulation. Perhaps the Minister will clarify the mechanisms for amending the draft currently before EU member states.

The most important aspect is that the child's welfare must be paramount in the implementation of any court judgments in whatever country the decisions are made. It is important to stress this aspect because parents who are splitting up frequently focus on their own experience of the relationship breakdown and often do not put the child's welfare first. The child's welfare must be guaranteed when enacting and implementing the legislation. This becomes much more fraught with difficulty for the child concerned where the parents live in different states. It is difficult enough for a child who is with the mother during the week and the father at week-ends where the parents live in the same state. However, this is much more complicated where parents live in different states. Clearly the type of arrangement which is the norm where parents live close to each other cannot be the norm where parents live hundreds of miles apart or in a different country, which necessitates the child flying from one parent to another. This is a difficult issue and the interests of the child must be of paramount importance.

I support what Deputy Shatter said in relation to the regulation not being confined to children born within marriage. The regulation should be extended to all children regardless of whether their parents have been married to each other. If this cannot be the case under the current provision, will the Minister clarify how the regulation can be extended to include children who are not born within marriage? Why does the regulation apply to children under the age of 16 and not include 17 year olds?

The Minister indicated there are concerns in relation to the provision that a declaration of enforceability will not be necessary in the requested state and the exact circumstances in which enforcement of an order can be suspended. It is indicated that it can be suspended in limited circumstances if enforcement would put the child's interests at serious risk. Obviously we would all support that but it is not clearly spelled out and I would like more clarity in that regard.

I would also like clarity on which jurisdiction enforces the rights conferred in the regulation because different jurisdictions may have different priorities. For example, in Ireland a decision of a court may be accepted as the norm given our culture in relation to these matters, but it may be different in other countries. I recall a case where the mother of the child was Irish and the father was from another European country. The courts in that country considered it was better for the child to be in an institution in that country rather than with the mother in Ireland because, by being in the institution in that country, the child was nearer to the extended family of the father. Obviously I do not expect the Minister to comment on this case but I cite it because it indicates there are different norms and values in different countries.

We would not like a decision made in a court of another EU country which we would consider not to be in the best interests of the child. I realise these matters are difficult because one is dealing with different jurisdictions. We are trying to be fair to all jurisdictions and produce a regulation which will be acceptable to all EU member states. Nevertheless, the issue of the child's interests being paramount and not being put at serious risk must be teased out so that we do not give away rights that are not consistent with what we consider to be in the best interests of the child.

The Minister referred to the Hague Convention on Children. I assume these two regulations are designed to be complementary and not to conflict with each other. Will the Minister comment on that aspect? Overall this is a desirable regulation which should be supported. However, I have some concerns, particularly in relation to our laws being subsumed by and subservient to laws made in other countries. I hope when the draft is finalised the Minister will ensure these issues are raised and that we are not giving away rights which would mean that children could not be protected in the manner we would wish. I welcome the measure.

Mrs. Owen

It is right and proper that Ireland should adopt this regulation. Will the Minister explain how this motion lies with article 20 of the regulation? It states: "The United Kingdom and Ireland in accordance with Article 3 are not participating in the adoption of the regulation." The Minister tried to explain that in his contribution but I am not sure I fully understood.

In the area of child abduction and access to children, Mary Banotti MEP, a relation of mine, has established a fine record of participation in assisting parents who have suffered as a result of the abduction of their children. She is the European Parliament's special envoy in this matter and she has travelled far and wide trying to get many other countries to recognise their responsibilities under the Hague Convention.

Will the Minister indicate which other European countries have decided to adopt this regulation before 13 October? For example, has Denmark or the UK opted in? Many abductions and much of the movement of children to other jurisdictions are linked to the common travel area between Ireland and the UK. If the UK is not involved when this regulation is eventually agreed how will Ireland be able to enforce any custodial jurisdiction for Irish parents?

I recently read a book entitled They Are My Children, Too: A Mother's Struggle for Her Sons, which outlined the appalling case of a French woman married to a German man who tried to gain custody of her sons. She has spoken publicly about her case. She is the wife of the British ambassador and lives in Washington. She obtained a custodial order in the UK but it was not recognised and could not be implemented in Germany. Article 13 states the interests of the parents with custody must be safeguarded and the authorities of the member state where the child is staying may not take jurisdiction during the child's stay to amend the foreign judgment which is being enforced. They should have circumscribed powers to order the child's return.

It is clear, as Deputy Shatter said, that some of our EU colleagues do not properly fulfil the terms of the conventions that are in place. It is important when the Minister is discussing this issue with his European counterparts that he makes it clear that Ireland, in adopting this, will expect co-operation for the implementation of this new regulation across the board in order that parents are not left in a position where they have custody in one European country which is not recognised in another.

I also share the concern that the regulation only refers to marital children. Consider an example of a man and woman who have had a child and lived together but are not married and one of them absconds with the child to another European jurisdiction. They are not married, yet the child was the product of a union similar to a couple living together as husband and wife. What is the position in such a case? The word "marital" needs to be properly defined. There are also difficulties with children of annulled marriages in Ireland. In the eyes of the church the couple are no longer married but in the eyes of the State they are still married. What is the position if the child of such a union is taken away and the custodial parent cannot get the child back?

Is the Minister satisfied that it will be possible to enforce the laws of one country in another given that there has not been great progress in the area of corpus juris and the recognition of the laws of other countries? There is a great deal of discussion about it and the Minister and I will share a platform tomorrow at the presentation of a report by the Institute of European Affairs about freedom, justice and security. Is the Minister satisfied that when the negotiations on this have been completed progress will have been made?

In terms of access to children, will the Minister consider the issue of grandparents, relatives and the wider family who also suffer terribly when the child is taken away from the custodial parent when he is discussing this matter at European level?

Mr. Neville

I am pleased to contribute to this debate. I support the decision to ratify the convention. It is important that children should be central to all decision making in this area. Unfortunately, too often the parents' agenda and their concerns are taken into account in these matters. A child has a civil right to know and be influenced by both parents, except in special circumstances such as violence and so on. Examination of this area and all policy in this area should be child-centred. Unfortunately, it is parent-centred in most cases.

I believe children have a right to know and be influenced by both parents and to know the parents' extended families. That is a fundamental right for any child, regardless of marital circumstances or conflict between parents. We have an adversarial system, which is not child-centred, in terms of deciding the outcome of marriage breakdowns and the custody arrangements for children. The relationship between the parents is made much worse by the approach inherent in the system, which is not child-centred.

When the Hague Convention was debated in the House we raised the difficulty of enforcing it across Europe because of the lack of experience of judges who decided on such matters in other countries. Under our legal system the judges who make decisions have vast experience of dealing with various cases. In Europe, the magistrates and judges have little experience and do not have the same background. This has caused problems in dealing with cases of access to children. There is a difficulty in terms of consistency between and within different countries in deciding these matters.

All children should be included under the convention, regardless of whether they are married. All children have a right to be included and to be considered under it. While the Minister can influence it, he cannot make a decision because it is decided at European level. However, in terms of dealing with family issues, every child has two parents and a child has a right to access in all circumstances. This facilitates a certain amount of access by both parents where there has been an abduction. However, 30% of the children born today will be excluded. This is a serious defect in the Bill.

The Minister has promised legislation but under the UN Convention on the Rights of the Child, Ireland has obligated itself to having an ombudsman for children. Legislation has been promised but this office has not been established. When will the State appear again before a UN conference, similar to the one held a few years ago in Geneva, at which we will have to account for ourselves? I hope that, at that stage, Ireland will have an ombudsman for children to ensure their rights are protected, they are listened to and are at the centre of all legislation which affects them. At present, that is not the case.

Parents and adults decide what is right for children without ever consulting them. Children have no means of expressing their concerns, difficulties or views. I listened to a radio programme three days ago on which children were interviewed. They expressed very serious and deep views about what is happening in society.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

I thank Deputies who contributed to the debate. It is important Ireland exercises the option provided by the protocol within the three month period which is stipulated so that the State can play a full and constructive part in the development and finalisation of the instrument.

The instrument is designed to facilitate rights of access to children by their parents, to give greater clarity to the law in member states of the European Union and to have tangible benefits in terms of the time and expense involved in access proceedings in the civil area. The expectation is that generally the new procedures for co-operation should result in a more efficient and effective functioning of judicial proceedings in such cases within the EU.

I agree with Deputy Shatter about the primacy of the child's right to maintain contact with both parents in the aftermath of divorce, annulment, separation or marital breakdown. Animosity between the parties can be inimical in that regard. I also agree with Deputy Neville's argument that access to the extended family is of considerable importance. The draft regulation seeks to deal with this situation. It is a regulation rather than a convention so it will come into force on a given date which will be inserted in Article 18.

Regarding Deputy Owen's point about recital 20, the position will change when Ireland opts in. As it stands, it states that Ireland and the UK are outside it. I cannot speak for the United Kingdom about what precisely it will do. The recital states that the United Kingdom and Ireland in accordance with Article 3 of the protocol, the Treaty on European Union and the treaty establishing the European Community are not participating in the option as regulated and are, therefore, not bound by it. However, they are subject to its application. This will change when Ireland opts in.

Mrs. Owen

The Minister does not know what the UK will do. It only has two more days to decide.

Mr. O'Donoghue

I do not know precisely what the United Kingdom will do.

Another issue raised by Deputies was the exclusion of children other than the joint marital children of the parents from the scope of the regulation. The scope of this regulation mirrors the scope of the Brussels II regulation which deals with jurisdiction and the recognition of enforcement of judgments in matrimonial matters and on matters of parental responsibility for joint children.

The decision to restrict the scope of these regulations to judgments concerning the children of both spouses will not, however, prevent the future extension of jurisdiction or criteria. The French Presidency has indicated the need to extend the scope of existing instruments to address the legal needs of non-marital children and their parents as part of a wider programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters.

Deputies spoke about the provisions relating to the interests of the child. As I stated, this regulation is an extension of Brussels II and will only relate to access orders made in the context of Brussels II. In article 4 of this instrument, one of the grounds for suspending the enforcement of an access order is where such enforcement would pose a serious direct risk to the child's physical or psychological health. Where this is not the case, the order will not be suspended, but its enforceability can be challenged by, for example, the custodial parents or parent on the grounds set out in the Brussels II regulation. Obviously, if the application is successful, the order will no longer be enforceable in the requested country.

One of the grounds on which recognition of enforcement of an order can be challenged under Brussels II is if this is manifestly contrary to public policy, taking account of the interests of the child. However, as I said earlier, some concern has been expressed about the circumstances under which enforcement of an order will be suspended under article 4. This concern focuses on whether the article gives appropriate protection to the interests of the child. I assure the Deputies that our approach to the negotiations on this issue will be informed by the overriding concern that proper account must be taken of the best interests of the child.

Mrs. Owen

The Minister did not give us a list of the countries that are opting in.

Mr. O'Donoghue

They are all opting in with the possible exception of the UK.

Question put and agreed to.