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CURRENT DEVELOPMENTS: I. Brussels II bis: Matrimonial Matters, Parental Responsibility, Child Abduction and Mutual Recognition

Published online by Cambridge University Press:  17 January 2008

Peter McEleavy
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Abstract

At the Justice and Home Affairs (JHA) Council meeting in Brussels on 2 and 3 October 2003 final political agreement was reached on a new and expanded version of the Brussels II Regulation, a text which has commonly become known as Brussels II bis. The instrument, which was adopted by the JHA ministers on 27 November, has now received formal classification as Council Regulation No 2201/2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and Matters Relating to Parental Responsibility Repealing Regulation (EC) No 1347/2000.1 The net result of this precipitous reform is that Brussels JJ shall cease to have effect from 1 May 2005,2 a mere 4 years and 2 months after it entered into force. Henceforth there will be a single, integrated instrument which will cover, inter alia, the free movement of judgments in matters of parental responsibility as well as of matrimonial judgments and introduce provisions on cooperation between Member States.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 53 , Issue 2 , April 2004 , pp. 503 - 512
Copyright
Copyright © British Institute of International and Comparative Law 2004

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References

1 OJ 2003 L 338/1.Google Scholar

2 This is the date on which the core of the new Regulation becomes directly applicable, see Art 72(2). The Regulation enters into force on 1 Aug 2004, but only Arts 67–70 apply from this date. These Articles deal with operational matters such as: information on central authorities, information relating to courts and redress procedures, amendments to standard forms and the existence of a committee to assist the Commission in monitoring the instrument.Google Scholar

3 Cf The Explanatory Report on the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters, prepared by A Borrás, OJ 1998 C221/27, at para 25 [hereinafter: Borrás Report].Google Scholar

4 McEleavy, P ‘The Brussels II Regulation: How the European Community has Moved into Family Law’ [2002] ICLQ 883–908.CrossRefGoogle ScholarSee also McEleavy, ‘First Steps in the Communitarisation of Family Law: Too Much Haste, Too Little Reflection?’, in Boele-Woelki, K(ed) Perspectives For the Unification or Harmonisation of Family Law in Europe (AntwerpIntersentia 2003) 509.Google ScholarJäntera-Järeborg, M ‘Unification of International Family Law in Europe—a Critical Perspective’ in Boele-Woelki, op cit, at 194.Google Scholar

5 One can legitimately ask why certain matters relating to parental responsibility were ever incorporated into the Brussels II Convention in the first instance, see McEleavy ‘The Brussels II Regulation’ (n 4 at 892).Google Scholar

6 For the habitual residence requirement see Art 3.Google Scholar

7 It is for national law to determine what civil proceedings relating to parental responsibility will include.Google Scholar

8 The Regulation will apply to adopted children of both spouses but not as regards a child adopted by only one of the parties; see Borrás Report (n 3) para 25.Google Scholar

9 The traditional terms still prevail in private international law, rather than the modern alternatives, residence and contact.Google Scholar

10 As implemented by the Child Abduction and Custody Act 1985. The other thirteen Member States to which the Regulation applies have all ratified the 1980 Convention.Google Scholar

11 The United Kingdom government did attempt to have the scope of Brussels II extended to cover ‘children of the family’ but this was rejected by a significant number of other States under whose laws separate rules existed in respect of step-children; oral evidence of Oliver Parker to the House of Lords' Select Committee; Report of the House of Lords Select Committee on the European Communities ‘Brussels II: The Draft Convention on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters’ HL Paper 19, Session 1997–8, q 169. This limitation is recognized in the Borras Report (n 3) para 25.Google Scholar

12 Member States were not free to ratify the Convention on an individual basis, there being an overlap in the subject matter of the latter instrument and the Brussels II Regulation. If the Convention were to be ratified by EC Member States permission had to be granted by the Council, see generally on the issue of external competence: Case 22/70 Commission v Council (ERTA) [1971] ECR263.Google Scholar

13 As part of the political compromise reached on 29 Nov 2002 with regard to the treatment of child abduction cases (see J-P Stroobants ‘Les Quinze Adoptent une Unification du Droit Familial Pour les Enfants Binationaux’ Le Monde 1 Dec 2002), it was agreed that EC Member States would be permitted to sign the 1996 Convention, see OJ 2003 L48/1 (this occurred on 1 Apr 2003, see <http://www.hcch.net/e/status/proshte.html>). Where a matter falls within the scope of both instruments Art 61 of Brussels II bis makes clear that the Regulation will apply where a child is habitually resident in a Member State or where a judgment made in one Member State is to be recognized in another, even if the child concerned is habitually resident in a third State which is party to the Convention.).+Where+a+matter+falls+within+the+scope+of+both+instruments+Art+61+of+Brussels+II+bis+makes+clear+that+the+Regulation+will+apply+where+a+child+is+habitually+resident+in+a+Member+State+or+where+a+judgment+made+in+one+Member+State+is+to+be+recognized+in+another,+even+if+the+child+concerned+is+habitually+resident+in+a+third+State+which+is+party+to+the+Convention.>Google Scholar

14 See Conclusions 33 and 34 of the European Council Meeting at Tampere, 15 and 16 Oct 1999, <http://www.europa.eu.int/comm/justice_home/doc_centre/civil/recognition/doc_civil_recognitiongeneralen.htm>..>Google Scholar

15 The new Art 2 provides a list of eleven definitions of core concepts employed within the Regulation.Google Scholar

16 Ex Art 3.Google Scholar

17 Ex Art 4.Google Scholar

18 Art 19(1), ex Art 11(1) and (2).Google Scholar

19 See McEleavy, ‘The Communitarization of Divorce Rules: What Impact for English and Scottish Law?’ (forthcoming).Google Scholar

20 Borrás Report (n 3) para 59.Google Scholar

21 Art l(2)(e).Google Scholar

22 See McEleavy, ‘The Communitarisation of Divorce Rules’ (forthcoming).Google Scholar

23 Para 9 of the Recital stresses that any measures relating to a child's property which do not concern the protection of the child should be governed by the Brussels I Regulation.Google Scholar

24 Cf Art 3, 1996 Hague Convention.Google Scholar

25 Cf Art 1(2), 1996 Hague Convention.Google Scholar

26 Art 8.Google Scholar

27 Art 12(1). The more permissive formulation of Art 3(1) of Brussels II, where the child is habitually resident in the State with jurisdiction over the matrimonial proceedings has been removed. Moreover the formulation adopted in 12(1) represents a further tightening of the ex Art 3(2) by requiring the acceptance of the jurisdiction by the any holders of parental responsibility as well as of the spouses. This reflects the fact that the material scope of new Regulation is not limited to children of both spouses.Google Scholar

28 Art 12(3)(a) suggests that this may be by virtue of the child being a national of that Member State or that one of the holders of parental responsibility is habitually resident in that Member State.Google Scholar

29 Art 12(3).Google Scholar

30 Art 13Google Scholar

31 Cf the position adopted in England and Wales and Scotland with regard to the matrimonial rules in Brussels II, considered in McEleavy ‘The Communitarization of Divorce Rules’ (forthcoming).Google Scholar

32 Art 12.Google Scholar

33 Art 10.Google Scholar

34 Art 9.Google Scholar

35 It is not clear if the 3-month period is absolute or if proceedings commenced before the deadline may be continued until completed.Google Scholar

36 Cf Re s (Residence Order: Forum Conveniens) [1995] 1 FLR 314.Google Scholar

37 Case C90/97 [1999] ECR 1–1075. The Court ruled, in the context of entitlement for social security, that length of residence was not an intrinsic element of the concept habitual residence.Google Scholar

38 This is because children would be connected to a jurisdiction with which they had no real and meaningful connection.Google Scholar

39 Nessa v Chief Adjudication Officer [1999] 4 All ER 677, at 682.Google Scholar

40 In such a situation the existing habitual residence will be lost upon departure, see Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562.Google Scholar

41 Art 13. If the holder of access right has participated in such proceedings, other than to contest jurisdiction, then the continuing jurisdiction of the previous State of habitual residence will be de-activated, Art 9(2).Google Scholar

42 Art 41, discussed below, at 511.Google Scholar

43 Art 13.Google Scholar

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45 Art 15.Google Scholar

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47 In addition to Art 11, discussed below, reference should also be made to Art 10 which introduces very strict conditions as to where there will be a transfer of jurisdiction from a child's State of habitual residence after a wrongful removal or retention, cf Art 7 1996 Hague Convention.Google Scholar

48 Art 11(2). Cf Art 13(2) 1980 Hague Convention.Google Scholar

49 Art 11(3). Cf Art 11 1980 Hague Convention.Google Scholar

50 Art 11(4). See, eg, Re H (Children) (Abduction) [2003] All ER (D) 308, [2003] EWCA Civ 355.Google Scholar

51 Art 11(5).Google Scholar

52 Cf exceptions in Arts 12(2) and 20, 1980 Hague Convention.Google Scholar

53 Art 11(6).Google Scholar

54 Art 11(7).Google Scholar

55 Art 11(8).Google Scholar

56 Art 42.Google Scholar

57 Somewhat ironically this is reiterated in para 21 of the Recital.Google Scholar

58 See Explanatory Report of the Convention on the Civil Aspects of International Child Abduction, E Pérez-Vera Actes et Documents of the XlVth Session, Volume III, 1982, 426, at 434, para 34.Google Scholar

59 Art 13(2) Hague Convention.Google Scholar

60 Art 13(l)(a), Hague Convention.Google Scholar

61 Art 15(1).Google Scholar

62 Art 23.Google Scholar

63 Art 23 (g).Google Scholar

64 Art 56. This is one of the provisions of Chapter IV which has put in place a central authority network to ensure cooperation between Member States and courts as well as for holders of parental responsibility.Google Scholar

65 See Art 41(1)—rights of access, Art 42(1)—return orders.Google Scholar

66 See Arts 41(2) and 42(2).Google Scholar

67 Art42(2)(c).Google Scholar

68 Art 47(1).Google Scholar

69 See Re B (Children) (Abduction: New Evidence) [2001] 2 FCR 531 and the subsequent report in The Times, 18 May 2001.Google Scholar