Oireachtas Joint and Select Committees
Wednesday, 5 October 2016
Joint Oireachtas Committee on Justice, Defence and Equality
Proposal on Matrimonial Matters, Parental Responsibility and Child Abduction: Motion
This is a motion re a proposal for a recast Council regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction. We will commence our consideration of this motion, which was referred to us by the Dáil on 27 September 2016 and the Seanad on 29 September 2016. I invite the Tánaiste to make her opening statement.
This is a relatively straightforward motion. The Dáil and Seanad have referred it to the joint committee to seek the approval of both Houses to opt into the proposal for a recast of the Brussels IIa regulation to allow judicial co-operation in the EU in respect of cross-border matrimonial and parental responsibility and child abduction cases. It is a good regulation and contains provisions to determine which member states are responsible for divorce, custody and access proceedings. It ensures that judgments issued in one member state are recognised and enforced in another. It sets out a procedure to settle cases where a parent takes a child from a member state without the other parent's agreement. Cases like this will have been brought to many committee members' attention.
A network of central authorities deals with this matter. The Brussels IIa regulation applies only in cross-border cases within the EU and would not apply in cases where the members of a couple are Irish nationals who both are habitually resident in Ireland. It relates only to the procedural aspects of cross-border cases. Importantly, it does not affect substantive law, for example, the legal requirements for obtaining a divorce.
An analysis of the regulation has been conducted and a consultation process was undertaken. This is about quicker and simpler procedures in the context of an increasing number of EU cross-border custody cases as well as child abduction cases arising from marital breakdowns. The review is timely.
Article 20 proposes that a child who was capable of forming his or her view would be guaranteed an opportunity to express it in proceedings on custody, access and the return of children abducted by one of their parents. This is a welcome proposal, given that our Constitution now contains the provision that the view of the child should be heard in such proceedings.
There are a number of other articles, all of which are intended to ensure that processes in these difficult matters work across borders. The proposal will have some operational and resource implications for various bodies, including the central authority, the Legal Aid Board and the Courts Service. These will be examined as the negotiations on the proposal continue. It is a measure under Title V of Part 3 of the Treaty on the Functioning of the European Union. The legal basis is Article 81.3, which provides for a special legislative procedure for judicial co-operation in family matters.
I am of the view that we should opt into the discussions, which will maximise our ability to influence the final outcome. There are no policy reasons of a pressing nature that would suggest we should not opt in.
It is a good move but, in line with my previous contribution, the obvious problem of Brexit immediately presents itself, specifically whether the UK will be compliant within this landmass, for example, people running with their children from Lifford to Strabane. I am not trying to be facetious, but what overt and immediate problems can the Tánaiste foresee as a result of Brexit, in particular for families living along the Border corridor?
This is a proposal for an EU regulation on jurisdiction and recognition of decisions in matrimonial matters. We are deciding to opt into the discussions. Brexit is in its early stages. The implications for criminal justice and family civil law will need to be subjected to analysis on both sides of the Border. Here is another EU regulation and Northern officials will have to examine it in the same way as they do all others and determine what new bilateral arrangements may be necessary. The UK is deciding to opt into several areas.
It will take decisions on many issues as to whether it will opt in. Europol is an example where it will have to make a decision, probably by January. It has indicated it wants to continue with the European arrest warrant. All of these will be part of the Brexit implications to be worked out as they impact North and South.
In fairness to the contribution of the Seanadóir, I wish to reflect to the Tánaiste that the issue of the uncertainty of times ahead is very much part of the daily currency of conversation in our end of the island. It would not be unique to it, but it would be more acutely in evidence and that is just a fact of life. It crosses almost into every realm of daily life.
There is a point to be made that international treaties remain in place. As far as children are concerned, we will still have the 1980 Hague Convention, to which the UK is a contracting party. There will be many areas where the UK will remain committed. There is no intention to change this relationship. This sets the parameters for many issues regarding children and it remains unchanged.