RESOLUTION A3-0051/93

Resolution on the abduction of children

The European Parliament,

-having regard to the motion for a resolution by Mrs Vayssade and others on behalf of the SOC Group on the abduction of children (B3-0474/89),

-having regard to its resolution of 26 May 1989 on the abduction of children,

-having regard to its resolution of 12 July 1990 on the Convention of the Rights of the Child,

-having regard to its resolution of 13 December 1991 on the problems of children in the European Community,

-having regard to its resolution of 8 July 1992 on a European Charter of Rights of the Child,

-having regard to the opinion of the Committee on Legal Affairs and Citizens' Rights for the Committee on Petitions on Petition No. 637/88 on joint custody of children in divorce cases (PE 139.083/fin.),

-having regard to Council Regulation (EEC) No. 1612/68 on freedom of movement for workers within the Community, Commission Regulation (EEC) No 1251/70 on the right of workers to remain in the territory of a Member State after having been employed in that State; and Council Directives 90/364/EEC on the right of residence, 90/365/EEC on the right of residence for employees and self-employed persons who have ceased their occupational activity and 90/366/EEC on the right of residence for students,

-having regard to the Brussels Convention of 27 September 1968 on jurisdiction and enforcement of judgments in civil and commercial matters (72/454/EEC),

-having regard to Council of Europe Convention No. 105 on recognition and enforcement of decisions concerning custody of children and the 1980 Convention of The Hague on the civil aspects of international child abduction,

-having regard to the United Nations Convention on the Rights of the Child of 20 November 1989,

-having regard to the European Convention on Human Rights,

-having regard to the report of the Committee on Legal Affairs and Citizens' Rights and the opinion of the Committee on Culture, Youth, Education and the Media (A3-0051/93),

A.whereas the recent United Nations Convention on the Rights of the Child of 20 November 1989, to which several Community Member States have acceded, contains a number of provisions laying down that States Parties shall adopt measures to ensure that a child shall not be separated from his or her parents (Article 9), combat the illicit transfer and non-return of children abroad (Article 11) and prevent the abduction of, the sale of or traffic in children for any purpose or in any form (Article 35),

B.whereas this convention provides that, for the above-mentioned purposes and in particular in order to prevent the illicit transfer of children abroad, the States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements,

C.whereas the European Parliament, in paragraph 8.13 of its aforementioned resolution of 8 July 1992, stated that, if the parents live apart, the child shall have the right to maintain direct and permanent contact with both parents, even if one of them lives in another country,

D.whereas visiting rights are frequently not respected in practice and whereas the child-parent relationship may be irreparably damaged as a result,

E.whereas, in its resolution of 8 July 1992, Parliament stated that, for the purposes referred to above, Community Member States must adopt appropriate measures as soon as possible to prevent either of the parents or a third person from abducting children, unlawfully holding them or failing to hand them over, either in a Member State or in a third country, and also urged that the legal procedures put in place must be capable of resolving disputes economically and speedily and be easily enforceable throughout the Community,

F.whereas, in its aforementioned resolution of 13 December 1991, Parliament expressed concern at the increasing incidence of child abduction either by one of the child's parents or by unrelated persons and called for the harmonization of Member States' legislation in this area and for a register of missing children to be set up for the approximately 6 000 children missing in the Community,

G.whereas, in its aforementioned resolution of 26 May 1989, it called, in view of the scale of the international abduction of children in the Community, for consideration to be given to setting up a specific Community legal instrument to deal with the problem,

H.whereas the two conventions which already exist on this matter, the Convention of The Hague of 25 October 1980 on the civil aspects of international child abduction and the Council of Europe Convention of Luxembourg of 20 May 1980 on recognition and enforcement of decisions concerning custody of children, have served their purpose but at the same time encountered innumerable problems of application as a result of which a completely effective solution to the problem of the international abduction of children by one of the parents has not been found,

I.whereas one of the main legal problems of both conventions is that they are based on different legal approaches and list a large number of exceptions to the principle of handing children back as well as to the recognition and enforcement of decisions by foreign courts and enable the Contracting States to avail themselves of a large number of exemptions,

J.whereas some Member States have not yet ratified the two conventions,

K.whereas the European Convention of 27 September 1968 on jurisdiction and enforcement of judgments in civil and commercial matters excludes from its field of application matters relating to the status or legal capacity of natural persons and to matrimonial relationships,

L.whereas the principle of the interests of the child must be given priority in decisions concerning the abduction of children, but it must not raise an unjustified obstacle in the Member State of refuge to the child being returned to the Member State in which it usually resides,

1.Calls for the abduction of children to be strongly condemned;

2.Notes that there are lacunae in and discrepancies between the criminal laws of the various Member States as regards penalties and the classification of offences relating to the unlawful abduction and retention of children where such offences are committed by one of the parents;

3.Believes nevertheless that, wherever possible, this problem should not be dealt with by criminal law and that the solution adopted should lead to the immediate restoration of custody of the child to whoever had been granted the right of custody before, whether this was granted by law, court decision or a formal agreement between the two parties;

4.Considers, in this context, that after separation or divorce, the child or children concerned must have the opportunity of continued contact with the parent who has not been granted custody;

5.Stresses that the right of the child to both parents pursuant to Article 18 of the UN Convention on the Rights of the Child must be the starting point for every decision reached under family law; emphasis should be placed on the responsibility of both parents for the upbringing of the child rather than on the right to custody; in addition, the possibility of joint custody for the parents should always be taken into account and examined;

6.Believes that any solution to the international abduction of children which involves protecting and restoring the right of custody must also guarantee and protect whatever rights of access the other parent is entitled to and that particular attention should be devoted to this issue when the parents in question are the natural parents of the child;

7.Considers that at Community level and in the individual Member States, all binational couples who divorce or separate, and their children and members of their families, must receive adequate counselling and information about custody and the problem of child abduction; advice bureaux should be set up for people who wish to enter into a binational partnership or have already done so;

8.Calls either for international family conciliation procedures to be established or for national family conciliation networks to be set up; believes that such systems might help to resolve conflicts over visiting rights and serve to avert abduction of a child by the parent who does not have custody;

9.Considers that the Community should support associations whose aim is to prevent abduction of children;

10.Recommends that the Member States should initiate concerted action within the competent international organizations to ensure that penalties are harmonized or even made more severe if the child has been abducted by a third party;

11.Notes with concern that the problem of the international abduction of children in the Community may grow as a result of the abolition of internal frontiers with a view to the full establishment of the single market;

12.Notes the close connection between the issue of child abduction and the full implementation of two of the key freedoms of the single market, the free movement of persons and the right of establishment, and points out that several Community forums and, in particular, European Political Cooperation have already been dealing with this problem;

13.Calls for a study to be conducted into the freedom of movement enjoyed by non-emancipated minors and the means proposed by the Member States to empower parents having custody to withhold permission for a child to leave the territory of its habitual country of residence; considers that the study should specifically examine the provisions falling under judicial and police cooperation as laid down in the Maastricht Treaty and the Schengen Agreement;

14.Reiterates its belief that, although the Conventions of The Hague and Luxembourg of 1980 have so far proved useful instruments for dealing with the international abduction of children by one of the parents, there is a need, owing to the large number of applications still pending or yet to be resolved as well as the problems inherent in implementing the two conventions and the fact that some Member States have not yet ratified them, for legislation at Community level of a sufficiently adaptable and flexible nature to ensure that children are returned to their country of residence as swiftly as possible;

15.Points out that, despite the open nature of the two conventions, they have not yet been signed by a sufficient number of third countries; considers therefore that as far as relations between Member States and third countries are concerned:

(a)third countries should be encouraged to sign the Luxembourg Convention of 20 May 1980, the Hague Convention of 25 October 1980 and the UN Convention on the Rights of the Child;

(b)the Member States should be asked to conclude bilateral agreements with third countries;

16.Points out, furthermore, that the main defects in the application of the conventions are primarily due to the slowness of procedures, the fact that the latter are not entirely free of charge, linguistic difficulties and the frequent difficulties faced by applicants in obtaining legal assistance under the systems currently in force in the Member States;

17.Notes the problems arising from the enforcement and recognition of decisions by one state in another Contracting State and the considerable number of exceptions in both conventions to recognition and enforcement and to the immediate return of children to their state of residence;

18.Considers it important that international treaty obligations are enforced on a fully reciprocal basis by the Member States;

19.Notes, in particular, that Article 10 of the Convention of Luxembourg of 1980 provides that the judge in the State of refuge may consider the effects of the decision in question in the light of the fundamental principles of the law relating to the family and children in the state addressed and, on these grounds, refuse recognition and enforcement of the decision;

20.Deplores the fact that the Brussels Convention of 1968 on jurisdiction and enforcement of judgements in civil and commercial matters excludes from its field of application the recognition and enforcement of decisions concerning rights of custody and rights of access;

21.Calls on the Member States to introduce rules giving full effect to visiting rights;

22.Is concerned at the large number of exemptions on which the Contracting States to the two conventions have insisted and calls on the Member States to reflect on the matter and enter into negotiations with the other Contracting States to the conventions with a view to limiting such exemptions as far as possible;

23.Notes, however, the effectiveness of certain bilateral agreements on judicial cooperation established between Member States or between Member States and third countries with a view to restoring custody of the child or guaranteeing extraterritorial rights of access and points out that such agreements act as a deterrent to parents who might be tempted to resort to abduction;

24.Calls on the Member States which have not ratified the two conventions to do so as swiftly as possible and in particular calls on:

(a)Greece and Italy to ratify the Luxembourg Convention of 20 May 1980 and the Hague Convention of 25 October 1980;

(b)Belgium to ratify the Hague Convention of 25 October 1980;

(c)Greece, the Netherlands, Luxembourg and Ireland to ratify the UN Convention on the Rights of the Child;

25.Calls on the Commission to submit to Parliament a communication on all aspects of the international abduction of children in a European area without frontiers, including the remedies that might form the basis of a European legal instrument;

26.Calls, in this connection, for the Commission to consider the following:

(a)the legal possibility of including, in the Brussels Convention of 1968, automatic recognition and enforcement of decisions concerning custody and rights of access, if necessary by negotiating a protocol,

(b)the possibility of introducing an instrument at Community level to solve problems relating to the international abduction of children within the Community, in view of the imminent completion of the single market;

27.Believes, however, that, because of the nature of the institutions involved, a legal instrument based on Article 220 of the Treaty would be compatible with the principle of subsidiarity and this instrument should:

(a)provide for procedures whereby court orders made in the place of the abduction are automatically enforceable;

(b)facilitate direct measures to return abducted children but also avoid the problem of child abduction by means of preventive measures;

(c)contain special provisions concerning access rights, even where the children are illegitimate;

(d)give priority to procedures for the speedy return of children, with the Member States bearing part of the responsibility;

(e)limit as far as possible the causes of non-recognition and non-enforcement of decisions;

(f)ensure that no charge is levied for the procedure;

(g)improve and expedite cooperation between Member States and the administrative bodies concerned;

28.Calls, therefore, on the Member States to use the power conferred upon them under the first indent of Article 220 of the Treaty to conclude a legal instrument based thereon;

29.Calls also on the Commission to refer systematically to these matters whenever conducting negotiations for cooperation agreements with third countries;

30.Instructs its President to forward this resolution to the Commission and Council, the Council of Europe, European Political Cooperation and the United Nations.