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Practice Guide for the Application of the Brussels Iia Regulation

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Practice Guide for the Application of the Brussels Iia Regulation Practice Guide for the application of the Brussels IIa Regulation Justice 2 Practice Guide for the application of the Brussels IIa Regulation Table of Contents 1. General Introduction ...................................................................................................4 1.1. Geographical scope – Article 2.3 ...............................................................................................5 1.2. Commencement provisions – Article 72 ........................................................................................5 1.3. Transitional rules – Article 64 .................................................................................................5 2. Matrimonial Matters ..................................................................................................8 2.1. Introduction .................................................................................................................9 2.2. Material scope in matrimonial matters ........................................................................................9 2.3. Which courts have jurisdiction in matrimonial matters? ...........................................................................9 2.4. Lis Pendens - or what happens if proceedings are brought in two Member States? – Article 19 (1) ..................................15 2.5. Recognition and enforcement of judgments in matrimonial matters ..............................................................15 3. Parental Responsibility ...............................................................................................18 3.1. Material Scope .............................................................................................................19 3.2. Which Member State’s Courts have Jurisdiction in Parental Responsibility? ........................................................23 3.3. Transfer to a court better placed to hear the case – Article 15 ...................................................................34 3.4. What happens if proceedings are brought in two Member States? ................................................................38 3.5. Recognition and Enforcement - General .......................................................................................40 3.6. The Rules on Rights of Access (Contact) - Recognition and Enforcement – Articles 40 and 41 .......................................43 4. The Rules on International Child Abduction within the EU .................................................................48 4.1. General introduction – Articles 10, 11, 40, 42, 55 and 62 .......................................................................49 4.2. Jurisdiction issues as regards child abduction cases ............................................................................51 4.3. Rules to ensure the prompt return of the child – Article 11(1) to (5) ..............................................................53 4.4. What happens if the court decides that the child shall not return? – Article 11(6) and (7) ...........................................58 3 5. Enforcement ........................................................................................................68 5.1. Importance of enforcement – general ........................................................................................69 5.2. Judgment to be enforced in the same conditions as if granted in the Member State of enforcement – Art 47(2) ......................70 5.3. Jurisprudence of the European Court of Human Rights (‘ECtHR’) ..................................................................71 6. Hearing the child – Articles 23, 41 and 42 .............................................................................76 6.1. Children are to be given the opportunity to express a view ......................................................................77 6.2. Exception to the duty to take the views of a child ..............................................................................77 6.3. Procedure for taking the views of a child ......................................................................................77 6.4. How to obtain the views of the child ..........................................................................................77 6.5. Training in taking the views of the child .......................................................................................78 6.6. Purpose of taking the views of a child .........................................................................................78 6.7. The UN Convention on the Rights of the Child .................................................................................80 7. Co-operation between central authorities and between courts – Articles 53-58 .............................................82 7.1. The European Judicial Network in civil and commercial matters – Article 54 ......................................................83 7.2. Duties of the central authorities – Article 55 ..................................................................................83 7.3. Facilitating agreement – Article 55(e) .........................................................................................83 7.4. Placement of children in care in another Member State – Article 56 ..............................................................83 7.5. Resourcing of central authorities .............................................................................................85 7.6. Co-operation of Courts ......................................................................................................85 7.7. Liaison Judges .............................................................................................................86 8. Relationship between the Regulation and the 1996 Hague Convention on child protection – Articles 61 and 62. 88 8.1. The scope of the two instruments ............................................................................................89 8.2. Ratification by the EU Member States .........................................................................................89 8.3. Which cases are covered by the Regulation and which by the 1996 Convention? – Articles 61 and 62 ................................89 List of Tables and Charts in this Guide ...................................................................................92 List of Cases referred to in this Guide. .92 1. General Introduction General Introduction 5 1.1. Geographical scope – Article 2.3 1.3. Transitional rules – Article 64 The Regulation, known colloquially as Brussels IIa or sometimes Brussels The rules on recognition and enforcement of the Regulation apply, in II bis (1), applies in all the Member States of the European Union with the relation to legal proceedings instituted before 1 March 2005, to three sole exception of Denmark. The Regulation is directly applicable in the categories of judgments: Member States which are bound by it and as such prevails over national law. • (a) judgments given on and after 1 March 2005 in proceedings 1.2. Commencement provisions – Article 72 instituted before that date but after the date of entry into force of the Brussels II Regulation (Article 64.2) (3); The Regulation applied as from 1st March 2005 as regards twenty four • (b) judgments given before 1 March 2005 in proceedings of the then Member States and subsequently as from the date at which instituted after the date of entry into force of the Brussels II successive new States joined the Union. (2) The Regulation applies in its Regulation in cases falling under the scope of the Brussels II entirety to: Regulation (Article 64.3); and • (c) judgments given before 1 March 2005 but after the entry • relevant legal proceedings instituted, into force of the Brussels II Regulation in proceedings instituted • documents formally drawn up or registered as authentic instruments, before the date of entry into force of the Brussels II Regulation and (Article 64(4)). • agreements concluded between parties – after the relevant date of its application under Article 72 (Article 64(1)). Such judgments falling under these categories are recognised and enforced pursuant to Chapter III of the Regulation under certain conditions, as follows: • for a judgment referred to in (a) and (c): provided that the court which issued the judgment founded its jurisdiction on rules which accord with those in the Regulation, the Brussels II Regulation (1) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in or in Convention which was in force between the Member State matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000. (3) Council Regulation (EC) No 1347/2000; see OJ L 160, 30.6.2000, p. 19; st (2) As from 1 January 2007 as regards Bulgaria and Romania and as from The Brussels II Regulation came into force on 1st March 2001. 1st July 2013 as regards Croatia. 6 Practice Guide for the application of the Brussels IIa Regulation of origin and the Member State of enforcement at the time the proceedings were instituted; and • for a judgment referred to in (b) and (c): provided that it relates to divorce, legal separation or marriage annulment or to parental responsibility for the children of both spouses on the occasion of any such matrimonial proceedings. It should be noted that Chapter III of the Regulation on recognition and enforcement applies in its entirety to these judgments,
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