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Contents
- Preliminary Material
- Main Text
- Part I Context, Scope, and Connecting Factors
- 1 Context and Origins of Regulation No. 2019/1111
- Preliminary Material
- 1 Origins of the Brussels IIb Regulation
- 2 History of the Brussels IIb Regulation
- 3 New Regulation: The Main Changes Compared with the Brussels IIa Regulation
- 4 Interpretation
- 1 Context and Origins of Regulation No. 2019/1111
- Part II Connecting Factors, Scope, and Definitions
- 2 Main Connecting Factors of the Regulation: Habitual Residence, Residence, Nationality, Domicile, Presence
- Preliminary Material
- 1 Introduction
- 2 Habitual Residence
- 2.1 Importance as a Connecting Factor
- 2.2 Case Law of the CJEU on the Concept of Habitual Residence
- 2.3 Application of the Court’s Case Law to Specific Situations
- 2.3.1 Habitual Residence of Adults within the Meaning of Article 3 of the Regulation
- 2.3.1.1 General remarks
- 2.3.1.2 Residence in a Member State for work, study, or another reason for a fixed period
- 2.3.1.3 Diplomats
- 2.3.1.4 Residence in one State for work purposes and another where the family lives
- 2.3.1.5 No habitual residence
- 2.3.1.6 Two habitual residences?
- 2.3.1.7 Where residence is illegal or precarious
- 2.3.1.8 Factors that should carry little weight
- 2.3.2 Habitual Residence of Children
- 2.3.2.1 General
- 2.3.2.2 Where both parents have rights of custody but one parent reluctantly consents to the other taking the children to another Member State on a permanent basis
- 2.3.2.3 Older children who do not want to settle in another country
- 2.3.2.4 Unlawful removal by one parent
- 2.3.2.5 Where one parent consents to the other parent removing the children to another country for a longer but limited period
- 2.3.1 Habitual Residence of Adults within the Meaning of Article 3 of the Regulation
- 3 Residence
- 4 Nationality
- 5 Domicile
- 6 Presence
- 3 Scope of the Regulation and Definitions
- Preliminary Material
- 1 Territorial Scope of the Regulation
- 2 Material Scope of the Regulation
- 3 Definitions—Article 2
- 4 Personal Scope of the Regulation
- 5 Temporal Scope of the Regulation
- 2 Main Connecting Factors of the Regulation: Habitual Residence, Residence, Nationality, Domicile, Presence
- Part III Jurisdiction
- 4 Jurisdiction in Matrimonial Matters
- Preliminary Material
- 1 Introduction
- 2 Scope of Chapter II, Section 1
- 2.1 No Obligation to Offer All Forms of Matrimonial Relief
- 2.2 Divorce and Legal Separation
- 2.3 ‘Private’ and Religious Divorces
- 2.4 Limited Nature of Jurisdiction in Matters of Divorce and the Relationship to the Systems of Jurisdiction for Parental Responsibility, Maintenance, and Matrimonial Property
- 2.5 Annulment of Marriage
- 3 Rules of Jurisdiction of Chapter II, Section 1
- 3.1 Introduction
- 3.2 Article 3
- 4-034
- 3.2.1 General Jurisdiction
- 3.2.2 Article 3(a)—Habitual Residence
- 4-038
- 3.2.2.1 Point (i)—habitual residence of both spouses in a Member State
- 3.2.2.2 Point (ii)—Member State of last habitual residence of spouses, provided that one still resides there
- 3.2.2.3 Point (iii)—Member State of habitual residence of respondent
- 3.2.2.4 Point (iv)—where there is a joint application in the Member State where either spouse is habitually resident
- 3.2.2.5 Points (v) and (vi)—Member State of habitual residence of applicant
- 3.2.3 Article 3(b)—Joint Nationality of Both Spouses
- 3.2.4 Moment When the Relevant Basis of Jurisdiction Must Exist
- 3.3 Article 4—Counterclaim
- 3.4 Article 5—Conversion of Legal Separation into Divorce
- 3.5 Article 6—Residual Jurisdiction
- 3.6 Jurisdiction in Respect of Authentic Instruments and Agreements
- 4 Choice of Law in Matrimonial Matters
- 5 Jurisdiction in Matters of Parental Responsibility—Chapter II, Section 2
- Preliminary Material
- 1 Introduction
- 2 Definitions and Scope of the Fundamental Concepts Underlying the Provisions of Chapter II
- 2.1 ‘Parental responsibility’: Components
- 2.1.1 General
- 2.1.2 ‘Child’
- 2.1.3 ‘Given to a natural or legal person’
- 2.1.4 ‘By a decision, by operation of law or by an agreement having legal effect’
- 2.1.5 ‘All rights and duties relating to the person or property of a child’
- 5-020
- 5-021
- 5-022
- 5-023
- 2.1.5.1 Rights of custody and rights of access (point (a))
- 2.1.5.2 Guardianship, curatorship, and similar institutions (point (b))
- 2.1.5.3 Designation and functions of any person or body having charge of the person or property of a child or representing or assisting a child (point (c))
- 2.1.5.4 Placement of a child in institutional or foster care (point (d))
- 2.1.5.5 Measures relating to the protection of the child relating to the administration, conservation, or disposal of the property of the child (point (e))
- 2.1.6 ‘Wrongful removal or retention’—Article 2(11)
- 2.1.7 Extent of the Jurisdiction Conferred in Matters of Parental Responsibility
- 2.2 Exclusions from the Scope of the Regulation—Article 1(4)
- 5-045
- 2.2.1 Exhaustive Nature of Exclusions from Scope
- 2.2.2 Establishment or Contesting of a Parent–Child Relationship (Point (a))
- 2.2.3 Decisions on Adoption, Measures Preparatory to Adoption, or the Annulment or Revocation of Adoption (Point (b))
- 2.2.4 Names and Forenames of a Child (Point (c))
- 2.2.5 Emancipation (Point (d))
- 2.2.6 Maintenance Obligations (Point (e))
- 2.2.7 Trusts or Succession (Point (f))
- 2.2.8 Measures Taken as a Result of Criminal Law Offences Committed by Children (Point (g))
- 2.3 Holder of Parental Responsibility
- 2.1 ‘Parental responsibility’: Components
- 3 Habitual Residence
- 4 Rules of Jurisdiction
- 4.1 Primary Rule of Jurisdiction—Article 7
- 4.2 Continuing Jurisdiction in Relation to Access Rights—Article 8
- 4.3 Jurisdiction in Cases of Wrongful Removal or Retention of the Child—Article 9
- 5-127
- 4.3.1 Introduction
- 4.3.2 Scope: Wrongful Removal to or Retention in Another Member State
- 4.3.3 Starting Point of Article 9: Retention of Jurisdiction
- 4.3.4 Conditions under Which Jurisdiction May Be Lost
- 4.4 Choice of Court—Article 10
- 5-172
- 4.4.1 Introduction and Relationship of Article 10 of the Brussels IIb Regulation to Article 12 of the Brussels IIa Regulation
- 4.4.2 Relationship to Article 10 of the 1996 Child Protection Convention
- 4.4.3 Conditions of Application of Article 10
- 4.4.4 Best Interests of the Child—Article 10(1)(c)
- 4.4.5 Formal Requirements—Article 10(2)
- 4.4.6 Exclusive Nature of Choice
- 4.5 Jurisdiction Based on the Presence of the Child—Article 11
- 4.6 Forum non Conveniens: Transfer of Jurisdiction to or from a Court of Another Member State—Articles 12 and 13
- 5-242
- 4.6.1 Introduction
- 4.6.2 Article 12
- 4.6.2.1 General remarks and scope
- 4.6.2.2 First condition of Article 12: ‘Particular connection’
- 4.6.2.3 Second condition: better placed to assess the best interests of the child
- 4.6.2.4 Can the court which has accepted jurisdiction under Article 12 later request a further transfer?
- 4.6.2.5 Procedure and obligations incumbent on the requested court
- 4.6.2.6 Relationship between Article 10 and Article 12—Article 12(5)
- 4.6.3 Request to Have Jurisdiction Transferred—Article 13
- 4.7 Residual Jurisdiction—Article 14
- 4.8 Provisional, Including Protective, Measures in Urgent Cases—Article 15
- 5-316
- 4.8.1 Introduction
- 4.8.2 A Court Having Jurisdiction on the Substance Does Not Need to Rely on Article 15 in Order to Adopt Provisional Measures
- 4.8.3 Major Changes in Relation to Article 20 of the Brussels IIa Regulation
- 4.8.4 Conditions of Application of Article 15
- 4.8.4.1 Urgency
- 4.8.4.2 Provisional or protective measures available under the law of that Member State
- 4.8.4.3 Unnecessary that the court having jurisdiction on the substance be seised
- 4.8.4.4 Duty to inform the court having jurisdiction on the substance—Article 15(2)
- 4.8.4.5 Temporary nature of measures—Article 15(3)
- 4.9 Incidental Questions—Article 16
- 5 Right of the Child to Express His or Her Own Views
- 6 Choice of Law in Matters of Parental Responsibility
- 6 Jurisdiction: Common Provisions
- Preliminary Material
- 1 Introduction
- 2 Examination as to Jurisdiction and Admissibility
- 3 Seising of a Court and Lis Pendens
- 3.1 Article 17—Seising of a Court
- 3.2 Article 20—Lis Pendens and Dependent Actions
- 6-055
- 3.2.1 General
- 3.2.2 Matrimonial Causes
- 3.2.3 Parental Responsibility
- 3.2.4 Application of Rule in Case of Choice-of-Court Agreements
- 3.2.5 Lis Pendens and the Transitional Provisions
- 3.2.6 Lis Pendens in a State Party to the 1996 Child Protection Convention
- 3.2.7 Lis Pendens in a Third State Not Party to the 1996 Child Protection Convention
- 4 Jurisdiction in Matrimonial Matters
- Part IV International Child Abduction
- 7 International Child Abduction—Chapter III of the Regulation
- Preliminary Material
- 1 Child Abduction: The International Context
- 2 Concept of International Child Abduction
- 2.1 Determining Whether There Has Been an Unlawful Removal or Retention
- 2.1.1 Application of the Convention or the Regulation?
- 2.1.2 Breach of Rights of Custody under the Law of the Contracting State Where the Child Was Habitually Resident Immediately Before the Removal or Retention
- 2.1.3 At the Time of Removal or Retention Those Rights Were Actually Exercised, Either Jointly or Alone, or Would Have Been So Exercised But for the Removal or Retention
- 2.1 Determining Whether There Has Been an Unlawful Removal or Retention
- 3 Chapter III of the Brussels IIb Regulation
- 7-038
- 3.1 Article 22
- 3.2 Article 23
- 3.3 Article 24
- 3.4 Article 25
- 3.5 Article 26
- 3.6 Article 27
- 3.7 Article 28
- 3.8 Article 29
- 7-078
- 3.8.1 Paragraph 1—Scope of Article 29
- 3.8.2 Paragraph 2—Obligation to Issue the Certificate
- 3.8.3 Paragraph 3—Obligation to Transmit Documents Where a Court Has Already Been Seised
- 3.8.4 Paragraph 4—Translation of Relevant Documents
- 3.8.5 Paragraph 5—Where No Custody Proceedings Are Pending at the Date of the Non-Return Decision
- 3.8.6 Paragraph 6—Jurisdiction to Override a Decision of Non-Return
- 4 Impact of the European Convention on Human Rights in the Field of Child Abduction
- 4.1 Relevance of the ECHR
- 4.2 Where a Court Is Seised of an Application for the Return of the Child
- 4.3 Where a Court in the Member State with Jurisdiction in Matters of Custody Competences Overriding a Decision of Non-Return
- 4.4 Where a Court in the Member State Where the Child Is Present Is Required to Declare Enforceable or Enforce a Judgment Ordering the Return of the Child
- 7 International Child Abduction—Chapter III of the Regulation
- Part V Recognition, Enforceability, and Enforcement of Decisions
- 8 Recognition, Enforceability, and Enforcement of Decisions
- Preliminary Material
- 1 Introduction
- 2 Section 1 of Chapter IV—General Provisions on Recognition and Enforcement
- 8-021
- 8-022
- 2.1 Recognition
- 8-023
- 8-024
- 2.1.1 Definition of ‘decision’ and ‘court’
- 2.1.2 Decisions Circulate Without Any Special Procedure
- 2.1.3 Updating of Civil Status Records
- 2.1.4 Application for a Decision That There Are No Grounds to Refuse Recognition
- 2.1.5 Recognition as an Incidental Question
- 2.1.6 Documents to Be Produced
- 2.1.7 Stay of Proceedings
- 2.2 Enforceability and Enforcement
- 2.3 Certificate
- 2.4 Refusal of Recognition and Enforcement
- 2.4.1 Introduction
- 2.4.2 Matrimonial Matters
- 2.4.3 Matters of Parental Responsibility
- 8-146
- 8-147
- 8-148
- 8-149
- 8-150
- 2.4.3.1 Point (a)—public policy
- 2.4.3.2 Point (b)—default of appearance
- 2.4.3.3 Point (c)—protection of other persons having parental responsibility
- 2.4.3.4 Points (d) and (e)—irreconcilability with a later decision on parental responsibility of the requested Member State, another Member State, or a third country
- 2.4.3.5 Point (f)—non-compliance with the procedure laid down in Article 82
- 2.4.4 Article 39(2)—Breach of the Obligation to Give the Child the Opportunity to Express His or Her Own Views
- 3 Privileged Decisions
- 4 Common Provisions on Enforcement
- 5 Section 4—Authentic Instruments and Agreements
- 5.1 Introduction and Legislative History
- 5.2 Solution Reached in the Brussels IIb Regulation
- 5.3 Scope—Article 64
- 5.4 Recognition and Enforcement of Authentic Instruments and Agreements
- 5.5 Certificate
- 5.6 Rectification and Withdrawal of the Certificate
- 5.7 Grounds for Refusal of Recognition or Enforcement
- 6 Section 5—Miscellaneous Provisions
- 8 Recognition, Enforceability, and Enforcement of Decisions
- Part VI Cooperation through Central Authorities and General and Final Provisions
- Part VII Relationship with Other Instruments in the Area of Family Law
- 11 Relationship with Other EU Regulations
- Preliminary Material
- 1 Introduction
- 2 Jurisdiction
- 2.1 Relationship between the Rules on Divorce and Parental Responsibility
- 2.2 Relationship between the Brussels IIb Regulation and the Maintenance Regulation
- 2.3 Relationship between the Brussels IIb Regulation and the Successions Regulation
- 2.4 Relationship between the Brussels IIb Regulation and the Matrimonial Property Regimes Regulation
- 3 Applicable Law
- 4 Recognition and Enforcement
- 12 Relations with Other International Instruments
- Preliminary Material
- 1 Introduction
- 2 Conventions Concluded between Two or More Member States
- 3 Certain Multilateral Conventions to Which Some Member States Are Parties
- 12-020
- 12-021
- 3.1 Hague Convention of 5 October 1961 Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Minors
- 3.2 Luxembourg Convention of 8 September 1967 on the Recognition of Decisions Relating to the Validity of Marriages
- 3.3 Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations
- 3.4 European Convention of 20 May 1980 on Recognition and Enforcement of Decisions Concerning Custody and on the Restoration of Custody of Children
- 4 Hague Convention of 25 October 1980 on the Civil Aspects of Child Abduction
- 5 Hague Convention of 19 October 1996 on Parental Responsibility and Child Protection
- 6 Scope of Effect
- 7 Treaties with the Holy See
- 8 Existing Bilateral Conventions with Third Countries
- 11 Relationship with Other EU Regulations
- Part I Context, Scope, and Connecting Factors
- Further Material
