40 Amendments of Evelyne GEBHARDT related to 2016/0190(CNS)
Amendment 28 #
Proposal for a regulation
Recital 2 a (new)
Recital 2 a (new)
(2a) By registering a partnership with a public authority, the partners also establish a stable, legally recognised relationship. Accordingly, most Member States that recognise the legal institution of the registered partnership accord it the same status, as far as possible, as marriage. In order to ensure that such an equivalence is also achieved in the field of the jurisdiction, recognition and enforcement of decisions under Article 1 (1) of this Regulation, the scope of the Regulation should be extended; however, Member States that do not recognise the legal institution of registered partnership should be exempted from this extension.
Amendment 42 #
Proposal for a regulation
Recital 13 a (new)
Recital 13 a (new)
(13a) In order to achieve greater legal certainty with regard to the general jurisdiction of the courts in the case of divorce, separation, suspension and annulment, the competent courts referred to above should be subject to a hierarchy.
Amendment 43 #
Proposal for a regulation
Recital 14 a (new)
Recital 14 a (new)
(14a) The meaning of the term 'habitual residence' is to be examined on the basis of the definitions by the authorities on a case-by-case basis, in the light of the actual circumstances.
Amendment 44 #
Proposal for a regulation
Recital 15
Recital 15
(15) Where the child's habitual residence changes following a lawful relocation, jurisdiction should follow the child in order to maintain the proximity. This should apply where no proceedings are yet pending, and also in pending proceedings. In pending proceedings, however, parties may agree in the interests of the efficiency of justice that the courts of the Member State where proceedings are pending retain jurisdiction until a final decision has been given, provided that this is in the best interests of the child. This possibility is of particular importance whereOn the other hand, pending proceedings are nearing conclusion and one parent wishes to relocate to another Member State with the chillating to custody and access rights should be concluded so that persons entitled to custody do not remove a child to another country in order thereby to avoid an unfavourable decision by an authority, unless the parties agree that the pending proceedings should be terminated.
Amendment 47 #
Proposal for a regulation
Recital 17
Recital 17
(17) This Regulation should not prevent the authorities of a Member State not having jurisdiction over the substance of the matter from taking provisional, including protective measures, in urgent cases, for instance in cases of domestic or gender-specific violence, with regard to the person or property of a child present in that Member State. Those measures should be recognised and enforced in all other Member States including the Member States having jurisdiction under this Regulation until a competent authority of such a Member State has taken the measures it considers appropriate. Measures taken by a court in one Member State should however only be amended or replaced by measures also taken by a court in the Member State having jurisdiction over the substance of the matter. An authority only having jurisdiction for provisional, including protective measures should, if seised with an application concerning the substance of the matter, declare of its own motion that it has no jurisdiction. Insofar as the protection of the best interests of the child so requires, the authority should inform, directly or through the Central Authority, the authority of the Member State having jurisdiction over the substance of the matter under this Regulation about the measures taken. The failure to inform the authority of another Member State should however not as such be a ground for the non-recognition of the measure.
Amendment 54 #
Proposal for a regulation
Recital 23
Recital 23
(23) Proceedings in matters of parental responsibility under this Regulation as well as return proceedings under the 1980 Hague Convention should respect the child’s right to express his or her views freely, and when assessing the child’s best interests, due weight should be given to those views. The hearing of the child in accordance with Article 24(1) of the Charter of Fundamental Rights of the European Union and Article 12 of the United Nations Convention on the Rights of the Child plays an important role in the application of this Regulation. This Regulation is however not intended to set out how to hear the child, for instance, whether the child is heard by the judge in person or by a specially trained expert reporting to the court afterwards, or wshould therefore set minimum criteria for the child's hearing. These should regulate the age from which a child must be heard, the age-appropriate conduct of proceedings in relation to content and language, the persons entitled to conduct the hearing, the venue of thet heraring, the child is heard in the courtroom or in another place oice of language, the presence of persons and the keeping of a record of proceedings of the hearing.
Amendment 60 #
Proposal for a regulation
Recital 28
Recital 28
(28) In all cases concerning children, and in particular in cases of international child abduction, judicial and administrative authorities should consider the possibility of achieving amicable solutions through mediation and other appropriate means, assisted, where appropriate, by existing networks and support structures for mediation in cross-border parental responsibility disputes. In the event of a positive outcome, the judicial and administrative authorities should urge the parties to engage in mediation. Such efforts should not, however, unduly prolong the return proceedings under the 1980 Hague Convention.
Amendment 64 #
Proposal for a regulation
Recital 28 a (new)
Recital 28 a (new)
(28a) The use of mediation can play a very important role in ending conflicts, especially in the case of cross-border, parental conflicts about the custody of and right of access to a child. In order to promote mediation in these cases, the authorities should therefore assist the parties in choosing mediators and in the organisational planning. It is also recommended that the parties should be provided with financial assistance to carry out the mediation at least to the extent to which they have also granted or would have granted legal aid.
Amendment 94 #
Proposal for a regulation
Article 1 – paragraph 1 – point a
Article 1 – paragraph 1 – point a
(a) divorce, legal separation or marriage annulment; and the separation or abrogation of registered partnerships, provided that the Member State of the competent court recognises this legal form; (This amendment applies through the text)
Amendment 99 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
1. 'authority' means any judicial or administrative authority or court in the Member States with jurisdiction in the matters falling within the scope of this Regulation ;
Amendment 100 #
Proposal for a regulation
Article 2 – paragraph 1 – point 3
Article 2 – paragraph 1 – point 3
3. ‘Member State’ means all Member States of the European Union with the exception of Denmark;
Amendment 102 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6 a (new)
Article 2 – paragraph 1 – point 6 a (new)
6a. A child’s ‘habitual residence’, in accordance with Article 8, means the place where it is integrated into the social and family environment, taking into account the child 's age, length of residence, regularity of residence, the circumstances and reasons of residence, the geographical and family background and family and social conditions in the Member State concerned.
Amendment 103 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6 b (new)
Article 2 – paragraph 1 – point 6 b (new)
6b. ‘Habitual residence’ means, in accordance with Article 3, a person’s normal place of residence.
Amendment 104 #
Proposal for a regulation
Article 3 – paragraph 1 – introductory part
Article 3 – paragraph 1 – introductory part
(1) In matters relating to divorce, legal separation or marriage annulment and the separation or abrogation of registered partnerships, provided that the Member State of the competent court recognises this legal form, jurisdiction shall lie with the authoritiecourts of the Member State:;
Amendment 105 #
Proposal for a regulation
Article 3 – paragraph 1 – point a – indent 2
Article 3 – paragraph 1 – point a – indent 2
– the spouses were last habitually resident, insofar as one of them still resides there, or, failing that,
Amendment 106 #
Proposal for a regulation
Article 3 – paragraph 1 – point a – indent 3
Article 3 – paragraph 1 – point a – indent 3
– the respondent is habitually resident, or failing that,
Amendment 107 #
Proposal for a regulation
Article 3 – paragraph 1 – point a – indent 4
Article 3 – paragraph 1 – point a – indent 4
– in the event of a joint application, either of the spouses is habitually resident, or, failing that,
Amendment 108 #
Proposal for a regulation
Article 3 – paragraph 1 – point a – indent 5
Article 3 – paragraph 1 – point a – indent 5
– the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or, failing that,
Amendment 109 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. The authorities of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State. Where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the authorities of the Member State of the new habitual residence shall have jurisdiction, unless the parties agree before the move that jurisdiction should continue to lie with the authority of the Member State where the child has hitherto been habitually resident.
Amendment 112 #
Proposal for a regulation
Article 7 – paragraph 1 a (new)
Article 7 – paragraph 1 a (new)
1a. Where custody and access proceedings are pending, the authority of the Member State of origin shall retain jurisdiction until the proceedings have concluded, unless the parties agree that the proceedings should be terminated.
Amendment 113 #
Proposal for a regulation
Article 7 – paragraph 2
Article 7 – paragraph 2
Amendment 115 #
Proposal for a regulation
Article 8 – paragraph 1
Article 8 – paragraph 1
1. Where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the authorities of the Member State of the child’s former habitual residence shall retain jurisdiction, for threesix months following the move, to modify a decision on access rights given in that Member State before the child moved if the person granted access rights by the decision continues to have his or her habitual residence in the Member State of the child’s former habitual residence.
Amendment 116 #
Proposal for a regulation
Article 8 – paragraph 2
Article 8 – paragraph 2
2. Paragraph 1 shall not apply if the holder of access rights referred to in paragraph 1, having been informed by those authorities of the legal implications, has accepted the jurisdiction of the authorities of the Member State of the child’s new habitual residence by participating, that information notwithstanding, in proceedings before those authorities without contesting their jurisdiction.
Amendment 117 #
Proposal for a regulation
Article 9 – paragraph 1 – point b – point i
Article 9 – paragraph 1 – point b – point i
(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, noand notwithstanding the fact that he or she has been informed by the authorities of the legal position regarding the need to make a request for return, no such request has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;
Amendment 130 #
Proposal for a regulation
Article 20 – paragraph 2
Article 20 – paragraph 2
The authority shall give due weight to the child’s views in accordance with his or her age and maturity and document its considerations in the decision. Where a child is to exercise the right to express his or her views, the following criteria at least shall be observed:
Amendment 131 #
Proposal for a regulation
Article 20 – subparagraph 2 – point a (new)
Article 20 – subparagraph 2 – point a (new)
(a) Where there is no danger that a child will be mentally harmed by exercising his or her right to express his or her views, he or she must be heard during the proceedings if he or she is sufficiently mature. A child shall be assumed to be sufficiently mature from age 12.
Amendment 132 #
Proposal for a regulation
Article 20 – subparagraph 2 – point b (new)
Article 20 – subparagraph 2 – point b (new)
(b) The hearing of a child exercising his or her right to express his or her views shall, in terms of language and content, be appropriate to the child’s age.
Amendment 133 #
Proposal for a regulation
Article 20 – subparagraph 2 – point c (new)
Article 20 – subparagraph 2 – point c (new)
(c) A child exercising his or her right to express his or her views may be heard only by a judge or by a properly trained person with proven expertise in the hearing of children.
Amendment 134 #
Proposal for a regulation
Article 20 – subparagraph 2 – point d (new)
Article 20 – subparagraph 2 – point d (new)
(d) A child exercising his or her right to express his or her views shall not be heard in a courtroom, but in a child- friendly setting appropriate for his or her age.
Amendment 135 #
Proposal for a regulation
Article 20 – subparagraph 2 – point e (new)
Article 20 – subparagraph 2 – point e (new)
(e) The hearing of a child exercising his or her right to express his or her views shall be conducted in the language of which the child has the best command.
Amendment 136 #
Proposal for a regulation
Article 20 – subparagraph 2 – point f (new)
Article 20 – subparagraph 2 – point f (new)
(f) A child exercising his or her right to express his or her views shall not be heard in the presence of the parties to the proceedings or their legal representatives.
Amendment 137 #
Proposal for a regulation
Article 20 – subparagraph 2 – point g (new)
Article 20 – subparagraph 2 – point g (new)
(g) After a child exercising his or her right to express his or her views has been heard, a record of the hearing shall be drawn up without delay and made available to the parties to the proceedings.
Amendment 139 #
Proposal for a regulation
Article 23 – paragraph 1 – subparagraph 2
Article 23 – paragraph 1 – subparagraph 2
Without prejudice to the first subparagraph, each instance shall give its decision no later than six weeks after the application or appeal is lodged with it, except where exceptional circumstances make this impossible. or the applicant has failed to produce documents necessary for the decision in time.
Amendment 141 #
Proposal for a regulation
Article 23 – paragraph 2
Article 23 – paragraph 2
2. As early as possible during the proceedings, the court shall examine whether the parties are willing to engage in mediation to find, in the best interests of the child, an agreed solution, provided that this does not unduly delay the proceedings. In that event the court shall call upon the parties to make use of mediation.
Amendment 143 #
Proposal for a regulation
Article 23 – paragraph 2 a (new)
Article 23 – paragraph 2 a (new)
2a. The authorities shall assist the parties in the selection of appropriate mediators and in the organisation of the mediation.
Amendment 145 #
Proposal for a regulation
Article 25 – paragraph 3
Article 25 – paragraph 3
3. The court may declare the decision ordering the return of the child provisionally enforceable notwithstanding any appeal, even if national law does not provide for such provisional enforceability, provided that provisional enforceability does not unduly affect the best interests of the child.
Amendment 146 #
Proposal for a regulation
Article 25 – paragraph 4
Article 25 – paragraph 4
4. Only one appeal to a higher court shall be possible against the decision ordering or refusing the return of the child.
Amendment 172 #
Proposal for a regulation
Article 58
Article 58
An applicant who, in the Member State of origin, has benefited from complete or partial legal aid, aid to cover costs incurred in mediation, or exemption from costs or expenses shall be entitled, in the procedures provided for in Article 27(3), and Articles 32, 39 and 42 to benefit from the most favourable legal aid or the most extensive exemption from costs and expenses provided for by the law of the Member State of enforcement.
Amendment 189 #
Proposal for a regulation
Article 79 – paragraph 1
Article 79 – paragraph 1
By [10five years after the date of application] the Commission shall present to the European Parliament, to the Council and to the European Economic and Social Committee a report on the ex -post evaluation of this Regulation supported by information supplied by the Member States. The report shall be accompanied, where necessary, by a legislative proposal .
Amendment 190 #
Proposal for a regulation
Article 79 – paragraph 2 – point a a (new)
Article 79 – paragraph 2 – point a a (new)
(aa) the number of cases and decisions in mediation procedures in matters of parental responsibility;