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From: European Private International Family Law: The Brussels IIb Regulation
Michael Wilderspin

Author’s Preface »

From: European Private International Family Law: The Brussels IIb Regulation
Michael Wilderspin

Bibliography (List of Articles, Commentaries, and Case Notes) »

From: European Private International Family Law: The Brussels IIb Regulation
Michael Wilderspin

Bibliography (List of Principal Works and Other Books) »

From: European Private International Family Law: The Brussels IIb Regulation
Michael Wilderspin

Contents »

From: European Private International Family Law: The Brussels IIb Regulation
Michael Wilderspin

Part I Context, Scope, and Connecting Factors, 1 Context and Origins of Regulation No. 2019/1111 »

From: European Private International Family Law: The Brussels IIb Regulation
Michael Wilderspin
This chapter introduces the origins, history, and changes of the Brussels IIb Regulation, which is also known as the Council Regulation (EU) 2019/1111 of 25 June 2019. It highlights the importance of knowing the legislative history and international instruments to achieve a proper understanding and application of the Regulation. The Brussels IIb Regulation primarily refers to the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility and international child abduction. Thus, judges or practitioners should be aware of several basic principles of interpreting EU instruments before applying the Regulation. The chapter recognises the abolition of the need for a declaration of enforceability as the most significant change of the entire Brussels IIb Regulation.

Part VI Cooperation through Central Authorities and General and Final Provisions, 9 Cooperation through Central Authorities in the Area of Parental Responsibility and General Provisions »

From: European Private International Family Law: The Brussels IIb Regulation
Michael Wilderspin
This chapter tackles the rules on cooperation concerning parental responsibility and general provisions. It notes Article 76’s designation of central authorities to assist with the Brussels IIb Regulation and specification of the geographical or functional jurisdiction of the aforementioned authorities. The rules primarily aim to improve the operation of the Regulation by developing communication between the courts and authorities in the Member States. Central authorities are mandated to communicate information surrounding national laws and cooperate with competent authorities while considering the usage of the European Judicial Network. Moreover, central authorities must meet regularly in an effort to facilitate the application of the Regulation.

EU Legislation »

From: European Private International Family Law: The Brussels IIb Regulation
Michael Wilderspin

European Private International Family Law: The Brussels IIb Regulation »

Michael Wilderspin

Part VI Cooperation through Central Authorities and General and Final Provisions, 10 General and Final Provisions »

From: European Private International Family Law: The Brussels IIb Regulation
Michael Wilderspin
This chapter explores Chapter VI of the Brussels IIb Regulation that contains a miscellany of provisions. It looks into the provisions indicated in Article 85 up to Article 103. Some articles address the issues of cooperation in court, collection and transmission of information, notification of the data subject, and non-disclosure of information. In the context of the Regulation, no legislation or other similar formality will be required since legalisation of the documents would need an issue by a court. Moreover, the abolition of the requirement for legalisation in the Brussels Conventions and Regulations extended beyond the legalisation stricto sensu to embrace any similar formality. The chapter also considers the Regulation’s attempts to minimise the need for translations.

Glossary of Terms »

From: European Private International Family Law: The Brussels IIb Regulation
Michael Wilderspin

Index »

From: European Private International Family Law: The Brussels IIb Regulation
Michael Wilderspin

Part IV International Child Abduction, 7 International Child Abduction—Chapter III of the Regulation »

From: European Private International Family Law: The Brussels IIb Regulation
Michael Wilderspin
This chapter explains the expansion of the international child abduction article in the Brussels IIb Regulation. It starts with the scheme of the 1980 Hague Abduction Convention that aims to secure the prompt return of children under the age of sixteen who have been wrongfully removed or retained in a Contracting State. According to the European Court of Human Rights (ECtHR), the failure to act speedily to ensure the return of the child is a breach of the right to family life of the parent left behind. The chapter looks into the application of the Abduction Convention and the Brussels IIb Regulation under the notion of international child abduction. It also elaborates on Chapter III articles featuring child abduction of the Brussels IIb Regulation.

International Conventions and Explanatory Reports »

From: European Private International Family Law: The Brussels IIb Regulation
Michael Wilderspin

Judgments in cases before the ECHR, CJEU and national courts »

From: European Private International Family Law: The Brussels IIb Regulation
Michael Wilderspin

Part III Jurisdiction, 6 Jurisdiction: Common Provisions »

From: European Private International Family Law: The Brussels IIb Regulation
Michael Wilderspin
This chapter discusses the common rules in the Brussels IIb Regulation. It explains how common rules apply irrespective of whether the court is seized of an application for matrimonial relief or parental responsibility. Article 17 determines the moment of consideration for seizing a court. The chapter considers the rules around lis pendens and dependent actions featured in Article 20. The lis pendens regime aims to prevent parallel proceedings, partly for the economy of procedure and partly to avoid inconsistent or irreconcilable judgments being handed down in different Member States. The chapter then elaborates on the Brussels IIb Regulation’s examination of jurisdiction and admissibility.

Part III Jurisdiction, 4 Jurisdiction in Matrimonial Matters »

From: European Private International Family Law: The Brussels IIb Regulation
Michael Wilderspin
This chapter covers the jurisdiction in matrimonial matters under the Brussels IIb Regulation. It expounds on the second chapter of the Regulation, which addresses the regime applicable to matrimonial matters and the matters of parental responsibility. The regime on international jurisdiction in matrimonial matters primarily aims to provide a wide selection of fora to allow a spouse to obtain divorce, legal separation, or annulment. The chapter explains that each selection is governed by the conflict-of-law rule of the forum. It also looks into the laws applicable for spousal maintenance, legal separation, and dissolution of the spouses’ matrimonial property regime.

Part III Jurisdiction, 5 Jurisdiction in Matters of Parental Responsibility—Chapter II, Section 2 »

From: European Private International Family Law: The Brussels IIb Regulation
Michael Wilderspin
This chapter tackles the jurisdiction surrounding parental responsibility under the Brussels IIb Regulation. It mentions how the Regulation’s Chapter II, Section 2 underwent significant changes as the issue of child abduction has been moved to its chapter, while its special provision on retention of jurisdiction in the case of international child abduction remains. Article 7(1) is the cornerstone of the system of jurisdiction applicable in matters of parental responsibility concerning the criterion of proximity, which is subject to certain exceptions. Additionally, Article 21 provides for the right of the child to express their views. The chapter explains how Brussels IIb Regulation contains no rules on the designation of the law applicable in matters of parental responsibility, but all the Member States are Contracting Parties to the 1996 Child Protection Convention.

Part II Connecting Factors, Scope, and Definitions, 2 Main Connecting Factors of the Regulation: Habitual Residence, Residence, Nationality, Domicile, Presence »

From: European Private International Family Law: The Brussels IIb Regulation
Michael Wilderspin
This chapter discusses the role of habitual residence, residence, nationality, domicile, and presence connecting factors in the operation of the Brussels IIb Regulation. Habitual residence plays a role in determining whether unlawful removal or retention has taken place. Thus, habitual residence is the most dominant criterion, unlike the other connecting factors that only come into play in certain situations. The chapter elaborates on the application of the Court’s case law to specific situations. It also references the case law of the Court of Justice of the European Union which stresses that the determination of a person’s habitual residence in a given case is dependent on the exact circumstances of the case.

Part V Recognition, Enforceability, and Enforcement of Decisions, 8 Recognition, Enforceability, and Enforcement of Decisions »

From: European Private International Family Law: The Brussels IIb Regulation
Michael Wilderspin
This chapter focuses on Chapter IV of the Brussels IIb Regulation. The major changes in the Regulation include the abolition of exequatur and the adoption of a new section on the recognition and enforcement of authentic instruments and agreements. Recognition of a decision means acceptance of the effects the decision has in the State of origin, while enforcement is necessary where the foreign court requires the losing party to act positively, which then becomes an element of coercion. The chapter explains the significance of the distinction between recognition and enforcement as the Member State of enforcement needs to declare the enforceability of a judgment before the judgment creditor could enforce the judgment. It considers a miscellaneous category of provisions, which have a counterpart in the Brussels IIa Regulation.