I move:
That Seanad 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 Seanad Éireann on 3 October 2000.
Minister of State at the Department of Health and Children (Ms Hanafin): The need for this motion arises because of the Eighteenth Amendment to the Constitution which enabled Ireland to ratify the Amsterdam Treaty and also allowed the State to exercise certain options contained in that Treaty, including the option in the fourth Protocolumn. Under the terms of the consti tutional 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 in to particular measures under the terms and conditions set out in the Protocolumn. 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 new 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 holds 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 marital children. 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 parental responsibility for joint 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 marital children 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 Senators will be aware that Ireland is, 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 but 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 the Department of Justice, Equality and Law Reform 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 which is at present before this House, having been passed by the Dáil. The EU proposal we are now discussing is framed in a different way from the 1996 convention and, as I have said, is confined to marital children. 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 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 will be required of the regulation before it is acceptable in full to member states, including Ireland. I will, of course, take account of points that may be made by Senators on any aspect of the proposal.
Opting in at this stage, then, does not imply that we will approve of everything in the proposal as it now stands but it does give us the scope to participate to maximum effect in the development of the measure. It is important that Ireland responds positively by exercising its right to opt in now so that we can play a full and constructive part in the negotiations at working party level and, ultimately, in the Justice and Home Affairs Council.
Molaim an rún seo don tSeanad.
