Relocation  -and-  Brussels II Revised Regulation 2003

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Brussels II Revised Regulation 2003. EC regulationAll EC states are signed up to the Regulation, except DenmarkBinding regulationJurisprudential interpretation of BIIR comes from the European Court of Justice. Scope of this lecture. What happens once relocation has been granted by state X (

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Relocation -and- Brussels II Revised Regulation 2003

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1. Relocation -and- Brussels II Revised Regulation 2003 Jacqueline Renton 4 Paper Buildings 5th May 2011 [email protected]

2. Brussels II Revised Regulation 2003 EC regulation All EC states are signed up to the Regulation, except Denmark Binding regulation Jurisprudential interpretation of BIIR comes from the European Court of Justice

3. Scope of this lecture What happens once relocation has been granted by state X (signatory to BIIR) to state Y (signatory to BIIR)? 2 main issues: Jurisdiction Recognition and enforcement of orders

4. Jurisdiction Article 8 – habitual residence Article 9 – residual, 3 month jurisdiction Article 12 – prorogation of jurisdiction Article 13 – presence jurisdiction

5. Article 8 Assumption that once relocation has been granted, the child’s habitual residence becomes that of the state into which relocation has taken place Query – how long do you need to wait post-relocation until it can be said that habitual residence has moved? Can lose habitual residence in a day, but need an “appreciable period of time” before it can be said that habitual residence has been acquired (Case C-497/10 PPU) Judgment of ECJ dated 22nd December 2010 – sense of permanency is required in order to establish habitual residence

6. Article 9 Article 9 Continuing jurisdiction of the child's former habitual residence 1. Where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the courts of the Member State of the child's former habitual residence shall, by way of exception to Article 8, retain jurisdiction during a three-month period following the move for the purpose of modifying a judgment on access rights issued in that Member State before the child moved, where the holder of access rights pursuant to the judgment on access rights continues to have his or her habitual residence in the Member State of the child's former habitual residence. 2. Paragraph 1 shall not apply if the holder of access rights referred to in paragraph 1 has accepted the jurisdiction of the courts of the Member State of the child's new habitual residence by participating in proceedings before those courts without contesting their jurisdiction

7. Article 9 gives the state from which relocation has taken place a residual jurisdiction for the sole purpose of modifying an access order Article 9 only applies for the 1st 3 months after relocation has taken place Article 9 – optional not obligatory derogation (CF: article 12) Article 9 does not have to be utilised – can ask state to which relocation has taken place to examine access issues in the round despite the 3 months period not having elapsed Article 9 cannot apply if the parent with access rights has accepted the jurisdiction of the state to which relocation has taken place Acceptance is defined as engaging in the proceedings in the state to which relocation has taken place Active participation is necessary

8. Article 12 Article 12 Prorogation of jurisdiction 1. The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where: (a) at least one of the spouses has parental responsibility in relation to the child; and (b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised, and is in the superior interests of the child. 2. The jurisdiction conferred in paragraph 1 shall cease as soon as: (a) the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final; (b) in those cases where proceedings in relation to parental responsibility are still pending on the date referred to in (a), a judgment in these proceedings has become final; (c) the proceedings referred to in (a) and (b) have come to an end for another reason.

9. 3. The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where: (a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State; and (b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child. 4. Where the child has his or her habitual residence in the territory of a third State which is not a contracting party to the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, jurisdiction under this Article shall be deemed to be in the child's interest, in particular if it is found impossible to hold proceedings in the third State in question.

10. Article 12(3) allows parents to prorogue the jurisdiction of the state from which relocation has been granted for a defined or indefinite period of time If you prorogue indefinitely –at some point an article 15 transfer application may be made by parent that was granted relocation, or the court of its own motion. If you are going to prorogue – make it clear on the face of the relocation order. If there is nothing in the relocation order about which jurisdiction will deal with future, substantive issues regarding child’s welfare, it will be assumed that article 8 applies (save for article 9 derogation). Important to weight up the pros / cons of the jurisdictions on offer

11. Advantages of prorogation? More certainty regarding judicial system and judicial continuity – may make future problems easier to remedy Litigation is easier for the left-behind parent in terms of involvement Legal aid (if applicable) should continue for both parents Disadvantages of prorogation? Proximity – child is far away from welfare investigation resources– important if further investigations are needed, BUT not always an issue (eg: Cafcass High Court team at RCJ sometimes travel abroad to undertake investigations) Problems regarding contact – difficulties with enforcement Makes litigation harder for the parent granted relocation in terms of involvement

13. Article 13

14. Re A-R (A Child: Relocation) [2010] EWHC 1346 A warning tale? Facts: M granted permanent relocation to France in August 2008 M returned to England in August 2009 with child F utilised article 20 (emergency jurisdiction) to take M and child’s passports (Tipstaff Passport order) F issued residence application (concerned about the child being moved around too much) M made clear she wished to return to France with the child Issues regarding jurisdiction for the substantive welfare issues then arose M could have said – article 8 fulfilled as a result of permanent relocation order in 2008 – therefore English courts have no jurisdiction

15. Instead – M prorogued an English jurisdiction, despite making clear she wished to return to France M then had to issue a second relocation application due to her prorogation of the English jurisdiction Ratio: Mostyn J – refused M permission to relocate. A Shared Residence Order was instead granted (F had changed his application to Shared Residence at the final hearing.) NOTE: if M had not prorogued, F would have had to seek relocation of child to England from a French court.

16. Recognition and enforcement If you are granted relocation, there will be 2 main parts to the order in most cases: The order that allows removal The contact / access order between child/ren and left-behind parent

17. 1st step Make sure you get your BIIR certificates issued by the court that grants relocation at the time that the order is made Annex II Certificate – removal part of the order (judgment on parental responsibility) Annex III Certificates – contact / access order (judgment on access rights)

18. Things to remember regarding certificates Make sure that the certificate is properly filled in Make sure that you have a copy of the certificate completed in the language of the judgment For cases involving enforcement of a contact / access order – you cannot complete the enforcement process until there is a valid certificate (this rule applies for Annex III and IV certificates, but not for Annex I and Annex II certificates) The issuing of a certificate cannot be appealed An incomplete / incorrect certificate can be rectified by the court that issued the certificate

19. Re Annex III / Annex IV - if you don't have a certificate, or you cannot obtain a valid certificate, then you need to go through the exequatur process (recognition and enforcement) Grounds for challenging a valid certificate (article 41(2) BIR): If judgment was given in default – lack of service can prevent this condition being satisfied (unless you can establish that judgment has been accepted unequivocally despite no formal service) All parties were not given an opportunity to be heard Child was not given an opportunity to be heard, unless age / degree of maturity means that it was considered inappropriate NOTE: How the child should be heard is not clear (Guardian, speaking to the judge, etc) Age is not specified in BIIR (CF: W v W [2010] EWHC 332 (Fam) – objections of a 6 year old can be taken into account)

20. Enforcement of access / contact orders Legal framework Article 41 of BIIR is the governing section for enforcement of access orders LAB v KB (Abduction: Brussels II Revised) [2010] 2 FLR 1664, Wood J – most recent authority on enforcement of access orders Facts: Court had to determine whether or not to recognise and enforce a Spanish order that determined issues of residence and contact. The parents’ relationship broke down when the children were around 7 and 5 years old.

21. F wrongfully removed the child from Spain to England. M then started welfare proceedings in Spain. The Spanish court eventually made a final order that directed that M was to have residence of the children F was to return the children to the care of the M. The Father unsuccessfully appealed the order. Whilst the F’s appeal was pending, M applied under the Hague Convention 1980 for the return of the children but the Originating Summons was dismissed. 2 years after the making of the Spanish order and over 3 years after the wrongful removal of the children, M obtained English registration of the certified Residence Order, the Mother’s application being to have the Spanish order recognised and enforced in England. The Father appealed against the registration and recognition of the Spanish order. Ratio: Spanish order was recognised and enforced.

22. Mr Justice Wood at [36]: “I fear that in that case it seems to me, on re-reading my judgment, it was not made sufficiently clear by me that the course I adopted, namely recognising the Polish order but declining to enforce it, was a wholly exceptional course to take in proceedings under the Regulation and was, in that instance, entirely specific to its facts. It also seems to me, and perhaps I was in error in one of the passages I have read out in not emphasising that because it was so wholly exceptional a case it had fallen into the category of one of the grounds in Art 23 leading to non-enforcement on public policy grounds.” (JCR emphasis)

23. Wood J’s reference to “my judgment” is a reference to the earlier case of Re S (Brussels II Revised: Enforcement of Contact Order) [2008] 2 FLR 1358 Facts: Polish court had ordered regular, staying contact between F and child. M had then removed child to England without F’s consent. M was deeply hostile to contact. Child was now 9 years old – had been 7 years old at the time. Child was spoken to by Cafcass Officer - not opposed to contact per se, but didn't want staying contact in Poland. Polish court had been mislead into believing that the contact order was made by consent between the parties - M had actually never been happy with the contact.

25. Re S-R (Jurisdiction: Contact) [2008] 2 FLR Facts: F sought enforcement of a Spanish contact order. The contact order was agreed between the parties approximately 2 years before the enforcement application. Ratio: Spanish courts remained seised of a substantive welfare jurisdiction in relation to the child, pursuant to article 12 of BIIR (there never having been any final orders in Spain), BUT it was appropriate to transfer the proceedings to England from Spain, pursuant to article 15 of BIIR. F’s enforcement application was stayed for 4 months, the court anticipating that the transfer process would take place within the 4 months period. Pending transfer, the court refused to simply enforce the Spanish order and instead made provisions for contact in England.

26. Registration, recognition and enforcement The exequatur process If you want to obtain recognition and enforcement of the part of the relocation order that actually grants permission to relocate, you need to utilise the exequatur process 3 steps: 1) Registration of the order (see: Re D (Brussels II Revised: Contact) [2008] 1 FLR 516 – registration procedure) 2) Recognition of the order (grounds of non-recognition) 3) Enforcement of the order (non-enforcement - challenging the certificate – see earlier)

27. Grounds of non-recognition Manifestly contrary to public policy Child not given opportunity to be heard, except in cases of emergency Judgement in default, but proceedings not served (unless you can establish that judgment has been accepted unequivocally) Judgment infringes a parent’s parental responsibility, if given without a parent having been given an opportunity to be heard Irreconcilable with later judgment relating to parental responsibility given in state in which recognition is sought Irreconcilable with later judgment relating to parental responsibility given in another state, or non-member state of child’s habitual residence, as long as recognition conditions have been met Article 56 procedure not fulfilled (placement of child in care / fostering)

28. Enforcement - discussion English court’s ambit for not enforcing a foreign contact / access order is narrow (exceptionality test) BUT: with the passage of time – does a fresh welfare enquiry become more likely / necessary, leading to the ‘enforcement court’ being seised under article 8 of BIIR? If a fresh s.8 application or variation application is issued before an enforcement application is issued, what takes priority?

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