Department for Constitutional Affairs Consultation Paper
Consultation Paper on the Council of Europe Convention
on Contact Concerning Children
CP 02/04
28 May 2004
Contents
This consultation closed on 31 October 2004.
Introduction
This consultation paper seeks views on whether the United Kingdom should
sign and ratify the Council of Europe Convention on Contact Concerning Children.
The consultation is aimed at those with an interest in cross-border contact
issues.
This consultation is being conducted in line with the Code of Practice
on Consultation [http://www.cabinet-office.gov.uk/regulation/Consultation/code.asp]
issued by the Cabinet Office and falls within the scope of the Code. The
Consultation Criteria, which are set out in this document.
An initial Regulatory Impact Assessment indicates that the proposals are
not likely to lead to additional costs or savings for businesses, charities,
the voluntary sector or on the public sector. Consequently, this paper does
not contain a Partial Regulatory Impact Assessment. If you disagree with
this conclusion you are invited to send your reasons as part of your overall
response to this paper.
Copies of the consultation paper are being sent to:
Families Need Fathers
Fathers 4 Justice
Women's Aid Federation of England (WAFE)
Equal Parenting Council
Grandparents Association
National Association of Child Contact Centres (NACCC)
Reunite
National Family Mediation
The Rt Hon Lord Justice Thorpe
Solicitors Family Law Association (SFLA)
Family Law Bar Association (FLBA)
Children And Family Court Advisory Support Service (CAFCASS)
Court Service
Child Abduction Unit (CAU)
Foreign & Commonwealth Office
Law Society
Scottish Executive Justice Department
Department of Finance & Personnel Northern Ireland
Northern Ireland Court Service
However, this list is not meant to be exhaustive or exclusive and responses
are welcomed from anyone with an interest in or views on the subject covered
by this paper.
How to respond
Please send your response by 31 October 2004 to:
Vincent Ramkissoon
Department for Constitutional Affairs
Family Justice Division
4th Floor Open Plan
Selborne House
54 Victoria Street
London
SW1E 6QW
Tel: 020 7210 8282
Fax: 020 7210 8681
Email
Further paper copies of this consultation can be obtained from this address.
A paper summarising the responses to this consultation will be published
in January 2005. The response paper will be available on-line.
Representative groups are asked to give a summary of the people and organisations
they represent when they respond.
The Department may wish to publish responses to this consultation document
in due course. Please ensure your response is marked clearly if you wish
your response or name to be kept confidential.
If you are replying by email, your consent overrides any confidentiality
disclaimer that is generated by your organisation's IT system, unless
you specifically include a request to the contrary in the main text of your
submission to us.
Confidential responses will be included in any statistical summary of numbers
of comments received and views expressed.
Consultation Co-ordinator contact details
If you have any complaints or comments about the consultation process rather
than about the topic covered by this paper, you should contact the Department
for Constitutional Affairs Consultation Co-ordinator, Laurence Fiddler,
on 020 7210 2622, or email him at consultation@dca.gov.uk
Alternatively, you may wish to write to the address below:
Laurence Fiddler
Consultation Co-ordinator
Department for Constitutional Affairs
5th Floor Selborne House
54-60 Victoria Street
London
SW1E 6QW
If your complaints or comments refer to the topic covered by this paper
rather than the consultation process, please direct them to the contact
given under the How to respond section of this paper.
The Consultation Criteria
The six consultation criteria are as follows:
- Consult widely throughout the process, allowing a minimum of 12 weeks
for written consultation at least once during the development of the policy.
- Be clear about what your proposals are, who may be affected, what questions
are being asked and the timescale for responses.
- Ensure that your consultation is clear, concise and widely accessible.
- Give feedback regarding the responses received and how the consultation
process influenced the policy.
- Monitor your department's effectiveness at consultation, including
through the use of a designated consultation co-ordinator.
- Ensure your consultation follows better regulation best practice, including
carrying out a Regulatory Impact Assessment if appropriate.
These criteria must be reproduced within all consultation documents.
The proposals
Background
- The Council of Europe Convention on Contact Concerning Children is about
handling transfrontier and other issues relating to contact between children
and their parents when the parents live in different Council of Europe
states.
A hard copy of the Council of Europe Convention on Contact Concerning
Children [http://conventions.coe.int/Treaty/en/Treaties/Html/192.htm]
and the Explanatory Report [http://conventions.coe.int/Treaty/en/Reports/HTML/192.htm]
can be obtained from the Department for Constitutional Affairs. This consultation
paper should be read in conjunction with those two documents.
Current Position
- The enforcement of international child contact is currently governed
by Council Regulation (EC) No 1347/2000 (on jurisdiction and the recognition
and enforcement of judgements in matrimonial matters and in matters of
parental responsibility for children of both spouses) as well as the 1980
Hague Convention on the Civil Aspects of International Child Abduction
and the 1980 Luxembourg Convention (commonly referred to as "the
European Convention"). The two Conventions were ratified as a result
of the Child Abduction and Custody Act 1985. The 1980 Hague Convention
works on the principle of returning children who are wrongfully removed
or retained away from their country of habitual residence. A wrongful
removal or retention is defined as being in breach of rights of custody
which are being exercised by a person, institution or any other body under
the law of the state in which the child was habitually resident immediately
before the removal or retention. The 1980 Luxembourg Convention works
on the principle of the mutual recognition and enforcement of orders made
in the contracting state. Accordingly, there must be in existence an order
of a court or other authority with the necessary jurisdiction in a Convention
country, which can be recognised and enforced in the receiving state.
The two conventions make provision about orders for contact between children
and their non-resident parents where they live in different jurisdictions.
They provide for a contact order made in one jurisdiction to be registered
and enforced in another. The receiving country does however have jurisdiction
to vary the order in the light of changed circumstances. The Child Abduction
Unit in the Office of the Official Solicitor is the Central Authority
for the operation of both of these conventions and processes applications
for the registration and enforcement of contact orders from other jurisdictions
and vice versa. Council Regulation (EC) 1347/2000 will be repealed by
Council Regulation (EC) 2201/2003 (concerning jurisdiction and the recognition
and enforcement of judgements in matrimonial matters and in matters of
parental responsibility) as from 1 March 2005. The new regulation will
apply to all children of the family regardless of the marital status of
the parents.
- The Contact Convention was adopted by May 2002 and open for signature
on 15 May 2003. The 12 States that have signed this Convention are: Austria,
Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Italy, Malta, Moldova,
Portugal, San Marino and Ukraine.
Outline of the Convention
- The outline of the Convention is as follows:
- ) to determine the general principles to be applied to contact orders;
- ) to fix appropriate safeguards and guarantees to ensure the proper
exercise of contact and the immediate return of children at the end
of a period of contact; and
- ) to establish co-operation between central authorities, judicial
authorities and other bodies in order to promote and improve contact
between children and their parents, and other persons having family
ties with children.
Essentially it sets out good practice in this area. It is not an instrument
through which orders can be registered and enforced but rather a medium
for promoting co-operation and consistency of practice.
What would the Child Contact Convention deliver?
- The Convention is essentially a good practice guide. In order to make
anything enforceable an order would be needed. There is a tension here
from the UK perspective in that the Children Act 1989 has a no order principle
enshrined within it. This means that orders are only made when the court
feels it is necessary. If parties are able to agree contact arrangements
then the court does not usually make an order. The court may make an order
if it considers it to be in the best interests of the child, for example,
if one parent is leaving the country and there is a question over the
security of the child. There is also an issue concerning the no order
principle contained in s1(5) of the Children Act 1989. It is felt that
if, when applying s1(5) the court feels in a particular case contact is
working so there is no need to make an order, that should be compatible
with the Convention's overall aims. Registration and enforcement of orders
is provided for in the Council Regulations and the two existing Conventions
so it would appear that there are no direct benefits from ratification.
Conversely, ratification would do no harm and there is always the positive
political message which it would send to other jurisdictions.
General principles to be applied to contact orders
- Chapter II of the Convention establishes the general principles applicable
to contact orders which are to be implemented in the internal law of the
Contracting States and to be applied by the judicial authority taking
the decision. These principles correspond to those generally accepted
and applied by European courts in cases concerning contact (whether or
not there is an international element). The agreement of such principles
will not only assist judicial authorities, at a national level, to follow
certain standards but will also ensure that any foreign decisions to be
enforced from other State Parties to this Convention have been based on
similar reliable standards.
Right to contact (Article 4)
- The first principle to be applied by judicial authorities is that children
and parents have the right to obtain and maintain regular contact with
each other. Such contact may be restricted or excluded only where necessary
in the best interests of the child. In addition, other forms of contact
may be established (for instance by telephone, letters, faxes, email,
or by the provision of information about the child - or by sending recent
photographs, school reports, etc).
- Some concerns have been expressed about the compatibility of the Convention
with domestic law. For example, the Convention refers to the “best interests”
of the child rather than the “paramount interests”. It is, however, clear
that the best interests are synonymous with the paramountcy test and reflects
the position of UK domestic law.
Other persons having family ties (Article 5)
- The second principle to be applied is that contact may be established
between a child and persons other than parents having family ties with
the child, subject to the best interests of the child. States are free
to extend this principle to situations which do not involve family ties.
Right of child to be informed and to express views (Article 6)
- The third principle of the Convention to be applied by the judicial
authority is the right of a child to be informed, to be consulted and
to express his or her views, provided the child is considered by internal
law as having sufficient understanding and unless such an arrangement
would be manifestly contrary to the child's best interest. It is
the duty of a contracting State to ensure that the child receives all
relevant information.
Resolving disputes concerning contact (Article 7)
- The Convention requires judicial authorities resolving disputes to ensure
that both parents are informed of the importance for their child and for
both of them of establishing and maintaining regular contact with their
child. The Convention also requires judicial authorities to encourage
parents and other persons having family ties with the child to reach amicable
agreements concerning contact; and to ensure that it has sufficient information
at its disposal in order to take a decision in the best interests of the
child.
Contact agreements (Article 8)
- The Convention requires States to encourage parents and other persons
having family ties with the child to comply with its principles in making
agreements concerning contact. The Convention requires judicial authorities
to confirm contact agreements on request (unless contrary to the child's
best interests) but there is a proviso to this requirement where internal
law otherwise provides.
The carrying into effect of contact orders (Article 9)
- Contracting States are responsible for ensuring that contact orders
are carried into effect.
Safeguards and guarantees concerning contact (Article 10)
- Each contracting State shall provide and promote the use of safeguards
and guarantees. States are required to submit to the Council of Europe,
at least three categories of safeguards and guarantees available in their
internal law. These could include the surrender of identity documents
and financial guarantees. A contact order could be made subject to any
safeguards and guarantees to ensure that the order is carried into effect
and that the child is returned at the end of the period of contact or
that the child is not improperly removed.
Measures to promote and improve transfrontier contact
- Chapter III concerns measures to promote and improve transfrontier contact.
It includes provisions on the appointment of central authorities and their
obligations, on international co-operation, on recognition and enforcement
of transfrontier contact orders, on conditions for implementing transfrontier
contact orders, on the return of the child and on costs and language requirements.
Central authorities (Articles 11 & 12)
- Co-operation of the States by means of central authorities has become
a well established structure in child protection matters, under the international
instruments that the present Convention is intended to complement. The
objective of this co-operation is to ensure that the authorities (central
and judicial) consider both the national and international aspects of
the international cases submitted to them, which should lead to the speeding
up of procedures. The duties of a central authority include providing
information about national legislation concerning parental responsibilities,
taking all appropriate steps to discover the whereabouts of the child
and transmitting requests.
International Co-operation (Article 13)
- The Convention recognises the need to establish close co-operation of
the judicial authorities, the central authorities and other bodies of
the Contracting States concerned to cover all the different steps to be
taken from the beginning until the end of the period of contact, especially
in relation to proceedings involving transfrontier contact. The assistance
of central authorities to institute proceedings is essential because two
different legal systems are implicated and quite often the applicant does
not know the language of the State where he or she wishes to lodge an
application for contact.
Recognition and enforcement of transfrontier contact orders (Article
14)
- The Convention requires Contracting States to provide a system for the
recognition and enforcement of orders made in other States concerning
contact and rights of custody. It also requires a procedure whereby orders
relating to contact and rights of custody made in other contracting states
may be recognised and enforced prior to contact being exercised within
that State.
Conditions for implementing transfrontier contact orders (Article
15)
- Detailed arrangements may need to be altered if contact is to take place
in a foreign country and in some cases, the judicial authorities of the
State where contact is to take place may need to review the practical
conditions under which contact is to be exercised. Under no circumstances
may the foreign decision be reviewed regarding its substance.
Return of the child (Article 16)
- If a child has been taken abroad for the purpose of contact and at the
end of this period of contact the child is not returned, the competent
authorities are obliged, upon request, to ensure the child's immediate
return subject to the application of international instruments. A decision
on the return of a child should be made, wherever possible, within six
weeks of the application for return.
Should the United Kingdom ratify?
- The objectives of the Convention are in line with Government policy
although there are very real questions about its compliance with English
law. Consultees are asked to consider whether the Convention would deliver
any tangible benefits not already available through existing law and international
instruments.
Questionnaire
To decide whether or not the UK should ratify we would welcome responses
to the following questions and any other comments you may wish to make on
the proposed Convention.
- If ratified, would the Convention enhance the existing law and offer
added benefits? If so, what would these benefits be?
- How does this Convention fit in with domestic legislation?
- How does the Convention fit in with other international instruments?
- How do you think parents can be informed of the importance of establishing
and maintaining regular contact with their child?
- Are there any potential drawbacks to ratifying the Convention?
Name of person consulted:
Date:
Organisation:
Address:
If you are a representative of a group, please give a summary of the people
and organisations you represent:
Please send your completed response to:
Vincent Ramkissoon
Department for Constitutional Affairs
Family Justice Division
4th Floor Open Plan
Selborne House
54 Victoria Street
London
SW1E 6QW
Email
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