Council of Europe: Explanatory Memorandum to Recommendation No. R(91)9 on emergency measures in family matters

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS
 

 

EXPLANATORY MEMORANDUM

to Recommendation No. R (91) 9
of the Committee of Ministers to member states
on emergency measures in family matters

(adopted by the Committee of Ministers on 9 September 1991
at the 461st meeting of the Ministers' Deputies)

 

Introduction 

1.         The Committee of Ministers of the Council of Europe, on a proposal of the European Committee on Legal Co-operation (CDCJ), gave the Committee of Experts on Family Law (CJ-FA) the task of preparing recommendations aiming at the improvement of family law procedures. 

2.         The committee of experts, composed of representatives from the member states of the Council of Europe and observers from Canada, the Holy See, Yugoslavia, The Hague Conference on Private International Law, International Commission on Civil Statutes and the International Social Service prepared the texts of the draft recommendation on emergency measures in family matters and its accompanying explanatory memorandum. These texts, after having been examined by the European Committee on Legal Co-operation (CDCJ), were transmitted to the Committee of Ministers which, at the 461st meeting of the Ministers' Deputies on 9 September 1991, adopted the recommendation and authorised the publication of the explanatory memorandum. 

3.         The Recommendation contains four principles providing for emergency measures where the interests of children and other persons in need of special assistance and protection are in serious danger. The aim of the recommendation is to cover the wide variety of cases relating to the family, to inform persons in need of the available powers and resources and to help them to obtain the necessary remedies. It is for national law to ensure the detailed application of these principles and to grant appropriate and rapid assistance in these cases which may concern children or adults (for example, young adults, adults subject to a disability, spouses or unmarried couples). 

4.         Applications for emergency measures may be made directly by persons whose interests are in serious danger or, in certain cases – especially those concerning children or adults subject to a disability – by appropriate persons or bodies on their behalf (for example by a parent or local authority on behalf of a child). Such applications may be made separately or as part of other court proceedings which relate to more general issues (for example during proceedings concerning divorce, or the custody of children or division of property).

5.         The principles apply not only to emergency measures taken by courts but also to measures taken by similar bodies such as administrative tribunals and other competent bodies. Therefore, any reference in this explanatory memorandum to judges or courts also includes similar persons or bodies. States may give the police, medical or child welfare, or other administrative authorities, certain powers to take emergency measures. For example, a medical intervention may be carried out on a child without the consent of the parents where it is necessary to save the life of the child or prevent serious deterioration in health. In some states assistance may be also obtained by making use of a complaints procedure. 

6.         In addition to providing protection and assistance where there is serious danger, the existence of these emergency procedures may avoid or greatly reduce further proceedings by: 

          deterring action which is likely to cause harm to the family; 

         discouraging a party from making use of delaying tactics to prevent a court order being made; 

          preventing disastrous irreversible consequences. 

Comments on the principles

Principle 1: powers and resources 

7. The following orders[1] are examples of emergency powers which may, in certain states, be granted to protect and assist persons whose interests are in serious danger: 

a.         orders to protect the health of a child (for example, an order to prevent parents from removing a child from hospital; an order which provides or makes possible that, contrary to the wishes of the parents, a child shall be given an urgently needed blood transfusion); 

b.         orders concerning the custody, care and control and access to children (for example, an order which requires any access to be supervised; an order which suspends, varies or discharges an order for access; an order giving the local authority the power to remove from his parents a child who is not cared for in a proper manner); 

c.         orders to prevent the improper removal of a child or orders to recover a child (for example, an order prohibiting a parent from contacting or removing a child; an order requiring the passport of a child and/or passports of one or both parents to be surrendered; an order requiring a person to disclose the child's whereabouts to the courts; an order requiring the police to find the child and bring the child before the court or return the child to the parent entitled to custody; an order requiring a government department to disclose the address of the missing child or parent; an order requiring publicity to be given in order to find a missing child);

d.         orders providing special protection for children or adults who are unable to look after themselves or their property or who are likely to injure themselves or others (for example, an order appointing a guardian for an elderly or seriously ill person in need of special protection; an order providing for special measures in the case of drug addicts); 

e.         orders to protect a child or person from threats or violence (for example, an order to leave the family home immediately or within a specified period; an order prohibiting one spouse from contacting the other spouse or child; an order requiring a person to stay away from a certain area; an order providing for a penalty in the case of threats or violence); 

f.          orders to prevent the disposal or destruction of property including the family home. 

8.         In addition to powers to make orders to prevent serious danger, the courts and other appropriate bodies should also be given suitable resources such as: 

–          sufficient and well-trained judges and court staff, with proper assistance from the police, the child welfare authorities and government departments; 

–          adequate technical equipment which enables the courts to use modern techniques to perform their duties rapidly. 

9.         States should take steps to prevent emergencies from arising by, for example: 

–          speeding up the normal procedures for family matters; 

–          assisting the parties to reach an agreement (for example, by the use of mediation or by requesting a party to give a binding undertaking to do or not to do something concerning the family); 

–          providing adequate safeguards and sanctions (for example, discouraging the improper removal of children by having effective means to trace children or, in appropriate cases, by requiring the deposit of a substantial security before granting access); 

–          ensuring that children and adults who are still financially dependent on their parents receive financial assistance (for example, advance payment by the social security services,[2] attachment of earnings); 

–          ensuring that a family home cannot be disposed of without the consent of the other spouse or a court order (for example, registration of a right to occupy the home, legal requirement for the consent of both spouses to be obtained before any sale).[3]

Principle 2: act at any time 

10.       When rapid decisions are essential (for example, to prevent a child at an airport from being improperly removed from the country or to obtain the consent of the court to carry out a life saving operation) the courts or competent authorities should be ready and able to act at any time as the circumstances require (for example, by giving a decision immediately in cases where parents refuse to consent to life-saving treatment for their child or in cases where rapid measures are necessary to protect a child or an adult from an imminent danger of physical harm). States should provide maximum assistance, especially the necessary financial means, to ensure that the courts or competent authorities are able to perform their duties speedily in such cases. 

11.       In order to allow proceedings to be brought quickly, parties seeking an emergency measure should be able to obtain assistance rapidly. In some states, lists of specialist lawyers are provided and information is given concerning the means of contacting the judge who is on duty in order to deal with really urgent matters at any time of the day or night. States should ensure that duty judges are available at any time to deal with cases of extreme urgency – even in civil cases. In some cases certain courts will be assisted if the party seeking the decision has already prepared before the hearing draft elements for a decision by the court. 

12.       In less urgent matters, it may be possible to deal with cases effectively during normal court hours – provided they are given due priority. Indeed, courts and other competent bodies should ensure that the structures for dealing with urgent cases are not overloaded with cases which are not urgent. For example, cases relating to access to children, although very important, are not always very urgent unless, for example, a rapid decision is required to prevent access which would cause serious danger to the child. Of course, questions relating to access should be dealt with quickly as it is important to ensure, in appropriate cases, that a child remains in regular contact with both parents. It is up to states to ensure that the normal procedures for dealing with matters relating to the family are also rapid.

Principle 3: rapid procedures and decisions 

13.       Paragraph 1 of this principle gives examples of simple and expeditious procedures which may be used. Paragraph 2 of Principle 8 of Recommendation No. R (84) 5 on the principles of civil procedure designed to improve the functioning of justice also gives examples of certain procedures which may be used to expedite the settlement of disputes (for example, no hearing, exclusively written or oral proceedings, more flexible rules of evidence). 

14.       Normally, all the parties to a case should be informed as rapidly as possible of the proceedings. However, in certain cases a court or other competent authority may, in an ex parte application, have to take a decision where it has not been possible to notify the other party (for example, to protect a child or adult who is in imminent danger of serious injury). In certain cases concerning children or adults subject to an incapacity, the court may be able to act on its own motion. 

15.       Any delaying tactics (for example, requesting reports on a child which are not required or unnecessary litigation) should, as far as possible, be prevented.

16.       Rapid procedures will, however, be of little use if a decision is not given immediately or within a very short time and communicated as soon as possible to the parties (for example, by telephone to a doctor and parents in very urgent cases). Whenever appropriate, especially in cases involving two or more states, the telefax or the telephone should be used to obtain and send information. The original documents or a certified copy of the documents should normally be produced for the court or other competent body at a later stage.[4] 

17.       The availability of simple and expeditious procedures under paragraph 1 of this principle will be of no assistance if the persons concerned or their advisers do not know how to proceed quickly. Paragraph 2 therefore seeks to ensure that there is a greater awareness concerning these matters. 

18.       Information on emergency measures could be provided, for example, by: 

–          informing the public in an appropriate and accessible way, of the available emergency measures and preparing publications setting out the remedies which may be obtained and the means of applying for these remedies; 

–          giving greater priority to emergency measures in family matters when training judges, lawyers and other persons to whom a person in need may turn for help; 

–          preparing detailed text books containing precedents or model forms relating to emergency proceedings to enable lawyers, especially those who are inexperienced in this field, to act as quickly as possible. 

19.       Paragraph 3 of this principle ensures that persons with insufficient means may obtain rapid assistance. In order to avoid any delay, special procedures  should apply  to requests  for legal aid and  advice in  urgent cases (for example, automatic grant, subject to a means test, when a lawyer certifies that legal aid is urgently required; immediate grant of legal aid by the court in urgent cases; special authorisation by telephone by the legal aid authorities).[5] 

20.       Paragraphs 4 and 5 of this principle seek to avoid any delay in enforcing a decision. In particular, steps should be taken to ensure that, where necessary, decisions may be enforced before the elapse of the time within which an appeal may be made. Cases concerning the improper removal of children should be finalised very quickly. 

21.       Unless the courts and other competent bodies are given sufficient powers to enforce their decisions, these decisions may remain ineffective. 

22.       The following special powers, in addition to general powers to order fines, imprisonment and penalties for contempt of court, have been shown to be effective in certain countries to encourage compliance: 

–          powers to require the police to take certain steps in case of any failure to comply with an order (including, in very serious cases, a requirement to make an immediate arrest); 

–          powers to issue a writ of sequestration against the property of a person until the person complies with the order (for example, a bank account frozen until a child is returned); 

–          powers to order a daily fine or the forfeiture of a sum of money or property for breach of an order (for example, if a child is not returned after a period of access).

Principle 4: international cases 

23.       Special consideration should be given to cases containing an international element to ensure that effective procedures are available to deal with these cases. Where necessary, the law should be amended to enable appropriate and rapid assistance to be granted. 

24.       In many cases concerning children, problems of an international nature may arise (for example, custody of and access to children when the parents live in different states). 

25.       In cases where there is an international element, legal aid and advice should, where appropriate, be given without delay to enable emergency measures to be taken.[6] 

26.       Certain international instruments deal with the question of legal aid and advice such as:

–          the two conventions dealing with the custody and abduction of children;[7] 

–          the European Agreement on the Transmission of Applications for Legal Aid [European Treaty Series, No. 92]; 

–          Resolution (76) 5 on legal aid in civil, commercial and administrative matters; 

–          Resolution (78) 8 on legal aid and advice. 

27.       Special consideration should be given to litigants who do not understand the language of the court including, where possible, help to find a lawyer with whom they can speak directly or help to obtain any necessary translations. As it may be difficult or impossible to deal with some cases unless interpretation or translation or both are provided, information (for example, lists) enabling interpreters or translators to be contacted rapidly will be of great assistance in urgent matters. Where necessary, legal aid should cover the costs of translations and interpretation.

28.       Recommendation No. R (81) 7 on measures facilitating access to justice provides that states should pay particular attention to the problems of interpretation and translation and ensure that persons in an economically weak position are not disadvantaged in relation to access to the court or in the course of any proceedings by their inability to understand the language of the court. 

29.       Information concerning the law and procedures of certain other states as well as judicial organisation may be obtained under the European Convention on Information on Foreign Law [European Treaty Series,  No.  62]  and  its  additional  protocol  [European  Treaty  Series. 

30.       In addition to applying existing multilateral or bilateral agreements states should also consider making informal agreements to ensure that emergency measures can be taken quickly. Such informal agreements could result in improved international co-operation concerning the search for children, greater access to information relating to family law and persons who could help to obtain emergency measures, assistance to obtain translations, increased contact between court authorities enabling, for example, requests for urgent social enquiry reports to be made by telephone. 

31.       Effective emergency measures should be available where the return of a child is sought even if there is no international agreement which applies. Where such agreements apply, states should ensure that these agreements operate satisfactorily. It is clear from the information received from the central authorities set up under the two conventions dealing with the custody and abduction of children that considerable improvement is required in certain contracting states in order to ensure the proper application of these conventions.[8]

 



[1] Many different terms may be used to describe these orders such as decisions, directions or injuctions which in turn may be described, for example, as interim, temporary, summary or protective.

[2] See Recommendation No. R (82) 2 on the payment by the state of advances on child maintenance.

[3] See Recommendation No. R (81) 15 on the rights of spouses relating to the occupation of the family home and the use of the household contents.

[4] See also Recommendation No. R (81) 20 on the harmonisation of laws relating to the requirement of written proof and to the admissibility of reproductions of documents and recordings on computers.

[5] Legal aid and advice should be considered to have a wide meaning and to include all forms of financial assistance and legal information and representation.

[6] See also the footnote to paragraph 19.

[7] The European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (European Treaty Series, No. 105) and The Hague Convention on the Civil Aspects of International Child Abduction).

No. 97]. In urgent cases, this information should be sought at the earliest opportunity and complete replies should be forwarded as soon as possible.

[8] During the Conference of the European Ministers of Justice (Lisbon, 1988), it was remarked that "it was intolerable that the six week time limit recommended by the Convention Committee on the Custody Convention (T-CC) should run out before action was taken on a request submitted in accordance with the convention".



 Top

 

  Related Documents
 
   Meetings