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European Communities (Definition of Treaties) (1996 Hague Convention on Protection of Children etc.) Order 2009

Volume 715: debated on Tuesday 15 December 2009

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the European Communities (Definition of Treaties) (1996 Hague Convention on Protection of Children etc.) Order 2009

Relevant document: First Report from the Joint Committee on Statutory Instruments

In debating this draft order on 8 December, my colleague in the other place explained its purpose and outlined some of the provisions of the 1996 Hague convention. I hope it will be helpful if I do the same today.

The 1996 Hague convention on the protection of children applies between contracting states across the world. It established uniform rules on jurisdiction, choice of law and the recognition and enforcement of judgments in relation to measures for the protection of children. We believe that the convention will improve outcomes when orders are made for the better protection of children. That is why the Government decided in favour of ratification.

The draft European Communities (Definition of Treaties) (1996 Hague Convention on Protection of Children etc.) Order 2009 will declare that the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children is to be regarded as a Community treaty as defined in Section 1(2) of the European Communities Act 1972. Section 2(2) of the Act provides that an international agreement specified as a community treaty may be implemented by regulations.

The 1996 Hague protection of children convention can be specified because it is a treaty entered into by the UK as ancillary to the Community treaties. There is European Union legislation which partly covers the same subject matter, known as Brussels 2a, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility. This overlap gives the European Union competence over certain provisions of the convention, and this power is shared with member states. However, the convention can be ratified or acceded to only by states parties. The European Community cannot ratify the convention in its own right and, therefore, by Council decision, has authorised member states to ratify the convention on its behalf, in the interests of the Community.

The draft order does not implement the detailed provisions of the convention. It is an enabling measure. The order will specify the 1996 Hague convention as a Community treaty, enabling detailed secondary legislation to be introduced, implementing all aspects of the convention. The draft order was approved in the other place last week. Subject to approval of the draft order by both Houses of Parliament, the order will be made by Her Majesty in the Privy Council. We shall then bring forward next year a statutory instrument to implement the convention for England and Wales, and Northern Ireland. The Scottish Government have indicated that they are preparing their own statutory instrument to implement the convention under Section 2(2) of the 1972 Act.

The Government decided in 2001, following public consultation, that the UK should ratify the 1996 Hague convention whenever it was brought forward for implementation by the European Community. The EU Council decision in 2003 was the subject of scrutiny in both Houses at that time. The UK signed the convention in April 2003. If all the EU member states which have not already done so are ready to ratify by June 2010, the convention could be in force in the UK as early as October 2010. All member states need to be ready at the same time for ratification to proceed. We intend that the UK should be ready to ratify the convention in June next year.

What does the convention do? Measures for the protection of children which may be dealt with under the 1996 Hague convention include residence, contact, and care orders. The main basis for jurisdiction is the child’s habitual residence. As noble Lords will understand well, the court in the state of the child’s habitual residence will generally know more about the child’s situation and is, therefore, best able to take decisions about the child.

Uniform rules of jurisdiction should achieve this and ensure that decisions on children properly made in one country are respected in others, so that there is no need to go to court again about the same issues in cases with an international element. Jurisdiction can be transferred by agreement if this is in the child’s best interests. The convention will also lead to an enhancement of existing mechanisms for administrative co-operation between courts and public authorities in different countries concerned with the protection of a child.

The 1996 Hague protection of children convention will complement and strengthen the operation of the 1980 Hague child abduction convention between states which have ratified both conventions. The 1996 convention is in force between the countries which have ratified it. We hope that ratification en bloc, by the 17 EU member states which are yet to do so, will send a powerful signal to other countries that the convention merits signature and ratification. This is certainly the expectation of the secretary-general of the Hague Conference on Private International Law.

Community rules for recognition and enforcement of judgments are at least as favourable as the rules laid down in the 1996 Hague convention. A declaration made by the UK and other EU member states in 2003 has the effect that relevant internal rules of Community law will apply for the recognition and enforcement of judgments between EU member states. Where a child is habitually resident in an EU member state, Community rules will also apply to determine jurisdiction.

As some noble Lords will know, the decision of the European Council in June last year to authorise certain member states, which have yet to do so, to ratify the 1996 Hague convention was not issued sooner because of disagreement relating to communications between Gibraltar and other contracting parties. Following resolution of this issue in December 2007, the European Union was able to proceed with its approval of this and other conventions. In coming before the Committee today, I am glad to be able to highlight the fact that the decision of the European Council in June 2008 has enabled us to make progress towards UK implementation of this important instrument. I commend the order to the Committee. I beg to move.

My Lords, I thank the Minister for explaining this important measure in great detail. I wish to ask a couple of questions. As I understand it, the Hague convention improves the international protection of children by providing uniform rules on jurisdiction, applicable law, recognition and enforcement for decisions on parental responsibility and measures for the protection of children, which is so important in a violent world. I am sure we all agree that that can only be to the good.

I also take note of the 2008 decision of the European Council, which authorises member states that have not yet ratified or acceded to the convention to do so. That, of course, includes the United Kingdom. In view of depositing their instruments of ratification or accession simultaneously, these member states are to exchange information on the status of the related procedures with the Commission and the Council. This exchange should have taken place before 5 December 2009, after which the date of the simultaneous deposit—that will preferably be before 5 June next year—will be established.

I have two questions for the Minister. What steps have other member states taken to deposit their instruments of ratification and what progress can the Minister report on the implementation of the Hague convention? According to the Explanatory Memorandum, a full impact assessment has not been produced for this instrument as it has no impact on the costs of business, charities or voluntary bodies. Can the Minister give an assessment of the impact on UK law, for the sake of all parties—children, families and legal practitioners—to family law proceedings, that the incorporation of the Hague convention as a Community treaty will have?

My Lords, I, too, thank the Minister for clearly explaining this important order, the background to the Hague convention and how the European Union will fit into it. As he said, we hope that will be by the end of next year. I also thank the chief Opposition spokesman for her remarks and her two interesting questions that command attention. I certainly endorse them and would welcome the Minister’s answer to those points.

Gradually, and at long last, I think we are getting there with the beginnings of the universal protection of children—that will, of course, take much longer—and at least the protection of children in Europe, as we know it, and other advanced territories of the so-called first world. I say that with no condescension in regard to other parts of the planet. This measure has been a long time coming and much pain and agony has been endured by families as it has been developed.

This is a very welcome step; it is progress that is to be welcomed. As the Minister explained, it is an interesting hybrid whereby, although the individual jurisdictional implications are dealt with by the member states only and are not part of EU jurisdictional law, the EU itself comes into the other crucial parts of it that imply the beginnings of the European unified system of child protection. This will enormously help the courts in different member states that have been grappling with these problems for many decades already. It got worse after the Second World War, when there was a lot of movement of families and children for all sorts of reasons.

I welcome the Government’s endorsement of the order. I hope that it will be carried today and that the two Houses will then proceed to ratification, so that the other 17 member states that the Minister referred to will proceed as rapidly as they can to this point. Some of the newer member states may need somewhat longer. Perhaps the Minister has some indication and enlightenment on that point, because we need to reach the conclusion of this in the European context and make sure that justice is done, certainly to families but particularly to children, in these often painful human matters and matters of jurisdiction, control, family welfare and child welfare that are so important in modern society.

I am grateful to the noble Baroness and the noble Lord who have spoken for their support for this measure. On the question of what steps other member states have taken, seven already ratified in 2001. Interestingly, some of them were not members of the European Union, so they ratified before they became members. I am advised that a number are ready to proceed and approximately 11, including us, have proceedings taking place in national parliaments. What steps is the UK taking to implement this? The enabling measure will allow us to use the powers in Section 2(2) of the 1972 Act to ensure that the treaty has the force of law and implements the necessary arrangements.

The noble Baroness asked what the impact would be on UK law. Brussels 2a, which I referred to in my opening, will primarily control jurisdiction and enforcement within the European Union, but the 1996 Hague convention that we are debating today will do a similar job for the UK between other contracting states, which may not necessarily be members of the EU. It will not have an internal effect except in a few circumstances where Brussels 2 does not apply. I have a feeling that my answer is not complete, though. The 1996 convention will also introduce applicable law to the United Kingdom. I hope that that goes some way towards answering the noble Baroness’s questions.

Motion agreed.