Explanatory Memorandum to COM(2021)368 - Authorisation of the Member States of the EU to accept the accession of Pakistan to the 1980 Hague Convention on the Civil Aspects of International Child Abduction - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2021)368 - Authorisation of the Member States of the EU to accept the accession of Pakistan to the 1980 Hague Convention on the Civil ... |
|---|---|
| source | COM(2021)368  |
| date | 06-07-2021 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
The aim of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereafter: 'the 1980 Hague Convention'), to date ratified by 101 countries, including all EU Member States, is to restore the status quo by means of the prompt return of wrongfully removed or retained children through a system of cooperation among central authorities appointed by its Contracting Parties.
As the prevention of child abduction is an essential part of the EU policy to promote the rights of the child, the European Union is active at international level to improve the application of the 1980 Hague Convention and encourages third States to accede it.
Pakistan deposited the accession instrument to the 1980 Hague Convention on 22 December 2016. The Convention entered into force in Pakistan on 1st March 2017.
Article 38 i of the 1980 Hague Convention stipulates that the Convention applies between the acceding country and such Contracting States as will have declared their acceptance of the accession.
The existence of the EU exclusive competence in the matter of the acceptance of the accession of a third State to the 1980 Hague Convention was confirmed by the Court of Justice of the European Union, which was consulted at the Commission's initiative.
On 14 October 2014, Opinion 1/13 of the Court of Justice of the European Union stated that the exclusive competence of the European Union encompasses the acceptance of the accession of a third state to the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
The Court insisted on the need for uniformity on the matter at EU level, avoiding a géométrie variable among Member States.
As the matter of international child abduction falls within the exclusive external competence of the European Union, the decision whether to accept the accession of Pakistan has to be taken at EU level by means of a Council Decision. The Member States of the European Union should thus deposit the declaration of acceptance concerning the accession of Pakistan in the interest of the European Union.
The acceptance of the Member States of the European Union would render the 1980 Hague Convention applicable between Pakistan and the EU Member States except Denmark.
• Consistency with existing policy provisions in the policy area
As far as parental child abduction is concerned, the 1980 Hague Convention is the international counterpart of Council Regulation No 2201/2003 (known as the Brussels IIa Regulation) which is the cornerstone of EU judicial cooperation in matrimonial matters and matters of parental responsibility.
One of the main objectives of the Regulation is to deter child abduction between Member States by establishing procedures to ensure the child's prompt return to the Member State of his/her habitual residence. To this end, the Brussels IIa Regulation incorporates in its Article 11 the procedure laid down in the 1980 Hague Convention and complements it by clarifying some of its aspects, in particular the hearing of the child, the time period to render a decision after an application for return has been lodged and the grounds for not returning the child. It also introduces provisions governing conflicting return and non-return orders issued in different Member States.
At the international level, the European Union supports the accession of third States to the 1980 Hague Convention in order for its Member States to rely upon a common legal framework to deal with international child abductions.
18 Council Decisions have been already adopted between June 2015 and February 2019 in order to accept the accession to the 1980 Hague Convention on International Child Abduction of 26 third countries (Morocco, Singapore, the Russian Federation, Albania, Andorra, the Seychelles, Armenia, the Republic of Korea, Kazakhstan, Peru, Georgia, South Africa, Chile, Iceland, the Bahamas, Panama, Uruguay, Colombia, El Salvador and San Marino, the Dominican Republic, Belarus, Uzbekistan, Honduras, Ecuador and Ukraine) 1 .
• Consistency with other Union policies
The present proposal is evidently linked to the general objective enshrined in Article 3 of the Treaty on the European Union to protect the rights of the child. The 1980 Hague Convention system is designed to protect the child from the harmful effects of a parental abduction and ensure that the child is able to maintain contact with both parents, for instance by securing the effective exercise of access rights.
It is worth mentioning also the link to the promotion of the use of mediation in the settlement of cross-border family disputes. The Directive on certain aspects of mediation in civil and commercial matters 2 also applies to family law within the common European judicial area. The 1980 Hague Convention also encourages the amicable resolution of family disputes. One of the Guides to Good Practise under the 1980 Hague Convention published by the Hague Conference on Private International Law is devoted to the use of mediation for the resolution of international family disputes concerning children which fall within the scope of the Convention. At the initiative of the European Commission, this Guide has been translated in all EU languages other than English and French and also in Arabic to support the dialogue with States which have not yet ratified/acceded to the Convention and help finding concrete ways to tackle the problems posed by international child abduction 3 .
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
Article 38 of the 1980 Hague Convention provides that “[t]he accession [of acceding States] will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession”. Given the fact that the decision regards the express acceptance of the accession of an acceding State to the 1980 Hague Convention, by the Member States in the interest of the Union, the applicable legal basis is Article 218(6) of the Treaty on the Functioning of the European Union. The substantive legal basis is Article 81(3) TFEU, therefore the Council shall act unanimously after consulting the European Parliament.
Ireland is bound by Regulation (EC) No 2201/2003 and is therefore taking part in the adoption and application of this Decision.
In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application.
• Proportionality
The present proposal is drafted along the lines of the already adopted Council Decisions on the same subject matter and does not go beyond what is necessary to achieve the objective of a coherent EU action in the matter of international child abduction by ensuring that the Member States of the European Union accept the accession of Pakistan to the 1980 Hague Convention within a given time frame.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Stakeholder consultations
The overwhelming majority of the Member States of the European Union, consulted by the Commission on their willingness to accept the accession of Pakistan to the 1980 Hague Convention, gave a favourable opinion.
The discussions held at the Experts’ meeting of 2 July 2019 showed that, with one exception, there were no objections from the Member States to the acceptance of the accession of Pakistan to the 1980 Hague Convention.
The Commission trusts that further discussions at technical level in the Council Working Party on Civil Law Matters will lead to the required unanimity for the adoption of the Council Decision.
• Collection and use of expertise
As preparation for the Experts’ meeting of 2 July 2019 and its follow-up, the Commission was in close contact with The Hague Conference on Private International law and the EU Delegation in Pakistan.
• Impact assessment
As for the 18 Council Decisions already adopted between 2015 and 2019 concerning the acceptance of the accession of several third States to the 1980 Hague Convention, no specific impact assessment has been carried out given the nature of this legislative act. However, the level of implementation of the Convention by Pakistan was examined at the Experts’ meeting of 2 July 2019 in which all EU Member States were represented. As follow-up to the meeting, the Commission has closely followed further developments in Pakistan.
Pakistan has designated the Solicitor General’s Office at the Ministry of Law, Justice and Human Rights as its Central Authority. Furthermore, it has set up provincial authorities in the Punjab, Sindh, Khyber Pakhtunkhwa, Balochistan, Azad Jammu and Kashmir and Gilgit-Baltistan along with appropriate government agencies to support these authorities. The Central Authority has issued “Standing Operating Procedures” to these sub-federal entities for guidance in handling cases, with a strong focus on mediation.
National legislation has been amended in order to mention also the 1980 Hague Convention among the competences of the Family Courts. Several training actions have been carried out since 2017, in order to instruct judiciary that the 1980 Hague Convention is procedural and does not concern the substance of the matter (the custody dispute). It has been clearly stated that Sharia Courts do not have any competence in relation to the Convention.
Before accepting Pakistan’s accession, the US government sent two high level delegations comprising lawyers, State Department officials and Hague Convention experts to Pakistan for assessing the administrative and judicial compliance of the Convention. The US Embassy in Islamabad had also arranged many seminars and workshops across the country for lawyers, judges and the government officials and other stakeholders.
The accession of Pakistan to the 1980 Hague Convention has been accepted by 12 Contracting Parties, including US.
4. BUDGETARY IMPLICATIONS
The proposed decision has no budgetary implications.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
As the proposal only concerns the authorization to the Member States of the European Union to accept the accession of Pakistan to the 1980 Hague Convention, the monitoring of its implementation is limited to the respect by the Member States of the wording of the declaration, the timeframe to deposit it and the communication of its deposit to the Commission, as established in the Council Decision.