Foreword

v

Preface

vii

Table of Cases

xix

Table of Statutes

xxv

Table of Statutory Instruments

xxvii

Table of International Legislation

xxix

ch. 1

Background/Glossary/Explanatory Materials

1

Background

1

1996 Hague Convention

2

Brussels IIa

5

Brussels IIa - a further revision?

9

interaction between the 1996 Hague Convention and Brussels IIa

11

Explanatory materials and other resources

13

Key concepts

15

ch. 2

Legislation

17

Introduction

17

Other international instruments

19

1980 Hague Convention

19

European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children ('The Luxembourg Convention')

20

Domestic statutes/statutory instruments

24

Family Law Act 1986

24

statutory instruments relevant to the 1996 Hague Convention and Brussels IIa

27

Family Procedure Rules 2010

28

Supporting instruments

29

ch. 3

Jurisdiction

31

Introduction

31

general jurisdictional scheme of Brussels IIa and of the 1996 Hague Convention

31

What is the relevant date for the purposes of establishing jurisdiction?

35

Habitual residence

35

English court's interpretation of 'habitual residence'

38

Other domestic and European developments

40

Habitual residence without physical presence?

42

Other grounds of jurisdiction under Brussels IIa and/or the 1996 Hague Convention

47

Article 9 of Brussels IIa - reservation of jurisdiction to modify judgments on rights of access

48

Article 10 of Brussels IIa/Article 7 of the 1996 Hague Convention

49

Article 12 of Brussels IIa/Article 10 of the 1996 Hague Convention - prorogation of jurisdiction

49

Article 12(1) and 12(2) of Brussels IIa

51

Article 10 of the 1996 Hague Convention

52

Article 12(3) of Brussels IIa

53

Article 13 of Brussels IIa/Article 6 of the 1996 Hague Convention - jurisdiction where a child has no habitual residence

54

Article 20 of Brussels IIa/Articles 11 and 12 of the 1996 Hague Convention - jurisdiction based on presence

56

Article 14 of Brussels IIa - residual jurisdiction

58

If it is established that the court has jurisdiction pursuant to Brussels IIa, is it bound to exercise that jurisdiction?

59

ch. 4

Commencement of Proceedings

67

Introduction

67

What must the court consider when it is seised of proceedings?

70

Brussels IIa

70

Article 16

71

Seisin: a digression

75

Article 17

79

Article 18

81

Article 19

82

Articles 16, 18 and 19 - procedure

87

approach under the 1996 Hague Convention - Article 13

87

ch. 5

Transfers of Proceedings

91

Introduction

91

overview of the transfer provisions

94

Brussels IIa

94

1996 Hague Convention

96

alternative route to 'transfer' in reliance upon the Family Law Act 1986

100

Transferring proceedings from the United Kingdom (England and Wales) to another Member State (under Article 15 BIIa) or Contracting State (Article 8 1996 Hague Convention)

102

When should the issue of transfer be raised? Article 15 of Brussels IIa

102

Article 8 1996 Hague Convention

103

How can the application for transfer be made?

104

Article 15 Brussels IIa

104

Article 8 1996 Hague Convention

106

How will the proceedings be allocated?

107

Article 15 of Brussels IIa

107

Article 8 1996 Hague Convention

107

When will the court with jurisdiction approve the transfer of proceedings to another Member State or Contracting State?

108

Article 15 of Brussels IIa

108

Article 8 of the 1996 Hague Convention

109

How will the request that the court of the receiving State assume jurisdiction in relation to the child be made?

111

Article 15 of Brussels IIa

111

Article 8 of the 1996 Hague Convention

112

Transferring proceedings from another Member State to the UK under Article 15 of Brussels IIa (Incoming transfers)

114

By application to the UK court for a request to be made of another Member State under Article 15(2)(c) of Brussels IIa

114

Following receipt of a request from another Member State under Article 15(2)(c) of Brussels IIa that the UK Court accepts jurisdiction in relation to a child

115

Incoming transfers of proceedings under Article 9 of the 1996 Hague Convention

116

Conclusion

118

ch. 6

Recognition and Enforcement

119

Introduction

119

scope of Brussels IIa and the 1996 Hague Convention for the purposes of the recognition and enforcement of foreign judgments, and the EU declarations to the 1996 Hague Convention

122

approach taken by Brussels IIa and the 1996 Hague Convention to the recognition and enforcement of judgments

124

1996 Hague Convention

124

Brussels IIa

125

Exequatur - Sections 1 and 2 of Chapter III of Brussels IIa

126

procedure in relation to judgments concerning rights of access or the return of a child - Section 4 of Chapter III

128

Applications for recognition, non-recognition and registration for enforcement

131

Documentation

132

Consideration by the District Judge - power to give directions

135

Service of the application

136

Applications for non-recognition - the respondent's right to reply

136

Consideration by the District Judge - determination of the application

137

Enforcement upon the judgment being registered for that purpose

139

Applications for enforcement of judgments requiring the return of the child made pursuant to Article 11(8) or the exercise of rights of access pursuant to Brussels IIa

140

Seeking a certificate under Annex II, III or IV of Brussels IIa or a certified copy of a judgment for the purposes of the 1996 Hague Convention

140

appeal process

141

Procedure

142

appeal hearing

143

'Article 23 factors'

146

Review of the jurisdiction exercised by the court of origin

148

Review as to substance

149

Public policy (Article 23(a) of Brussels IIa, Article 23(d) of the 1996 Hague Convention)

151

Hearing of the child (Article 23(b) of Brussels IIa, Article 23(2)(b) of the 1996 Hague Convention)

153

Service/opportunity to be heard (Articles 23(c) and (d) of Brussels IIa, Article 23(2)(c) of the 1996 Hague Convention)

156

Irreconcilable with a later judgment (Article 23(e) of Brussels IIa, Article 23(2)(e) of the 1996 Hague Convention)

158

Non-compliance with proper procedure (Article 23(g) of Brussels IIa, Article 23(2)(f) of the 1996 Hague Convention)

160

Enforcement

160

ch. 7

Co-operation, Gathering Evidence and Service

163

Introduction

163

Brussels IIa - the co-operation provisions

166

Article 55 - co-operation on cases specific to parental responsibility

166

Article 55(a): the collection and exchange of information (i) on the situation of the child (ii) on any procedures under way; or (iii) on decisions taken concerning the child

166

Article 55(b): The provision information and assistance to holders of parental responsibility seeking the recognition and enforcement of decisions on their territory, in particular concerning rights of access and the return of the child

167

Article 55(c): Facilitating communications between courts, in particular for the application of Article 11(6) and (7) and Article 15

167

Article 55(d): Providing such information and assistance as is needed by courts to apply Article 56

168

Article 55(e): Facilitating agreement between holders of parental responsibility through medication or other means, and facilitate cross-border co-operation to this end

168

1996 Hague Convention - Chapter V - the co-operation provisions in Articles 30-39

168

Article 31 - communications, mediation, localisation

170

Article 31(a) - facilitating communications and offering the assistance provided for in Articles 8 and 9 and in Chapter V

170

Article 31(b) - facilitate by mediation, conciliation or similar means, agreed solutions for the protection of the person or property of the child in situations to which the Convention applies

170

Article 31(c) - provide assistance with discovering a child's whereabouts

171

Article 32 - request for a report or for measures

172

Article 33 - transborder placements

172

Article 34 - furnishing of concrete information on a specific child

173

Article 35 - assistance in the implementation of measures; access rights

173

Article 36 - child in serious danger

174

Gathering evidence

175

Council Regulation (EC) No 1206/2001 of 28 May 2001 on co-operation between the courts of the Member States in the taking of evidence in civil or commercial matters

175

What is 'evidence' for the purposes of the Taking of Evidence Regulation?

177

Requesting the competent court in the relevant Member State take the evidence (Articles 4-6)

177

Direct taking of evidence by the requesting court (Article 17)

178

1970 Hague Taking of Evidence Convention

180

Other ways of achieving international co-operation

181

European Judicial Network

181

Judicial liaison

182

Exchanging criminal records between Member States

182

Service

183

Regulation (EC) No 1393/2007 of the European Parliament and of the Council on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000

183

Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters

187

Conclusion

189

ch. 8

Public Law

191

Introduction

191

Particular considerations in public law proceedings

198

Establishing jurisdiction and issuing proceedings

198

Taking (urgent) protective measures in relation to a child - the jurisdictional basis

201

Taking (urgent) protective measures in relation to a child in public law proceedings

202

Transferring public law proceedings

205

Care planning for a child with international connections

208

Placement in foster care/institutional care in a Member State - Article 56 of Brussels IIa

209

Kinship placements in Member or Contracting States

215

Placement of a child in another Contracting State - Article 33 of the 1996 Hague Convention

216

Nationality and consular relations

216

Conclusion

219

ch. 9

International Child Abduction

221

Introduction

221

How do Brussels IIa and the 1996 Hague Convention define a wrongful removal or retention?

224

retention of jurisdiction following a wrongful removal or retention - Article 7 of the 1996 Hague Convention

228

When is Article 7 applicable?

231

operation of Article 7 where a child has been removed from a Member State to a Contracting State

233

removal from a Member State to a Regulation State, and then to a different Member State

235

Article 7, the 1996 Hague Convention - conclusion

237

Retention of jurisdiction following a wrongful removal or retention - Article 10 of Brussels IIa

237

impact of Brussels IIa on 1980 Hague Convention proceedings

241

Article 11(7)

242

making of protective orders to safeguard a return

246

Article 11 of the 1996 Hague Convention

246

European Civil Protection Regulation (606/2013) of 12 June 2013 on Mutual Recognition of Protection Measures in Civil Matters

250

use of the EU Protection Regulation in 1980 Hague Convention proceedings

252

Conclusion

253

ch. 10

Country Information

255

Countries to which Brussels IIa applies (all EU Member States apart from Denmark)

256

Contracting States to the 1996 Hague Convention

256

Practical information (country by country)

259

Albania

259

Armenia

260

Australia

261

Austria

262

Belgium

263

Bulgaria

265

Croatia

266

Cyprus

268

Czech Republic

269

Denmark

271

Dominican Republic

272

Ecuador

273

Estonia

273

Finland

275

France

276

Georgia

278

Germany

279

Greece

281

Hungary

282

Ireland

283

Latvia

285

Lesotho

287

Lithuania

287

Luxembourg

289

Malta

290

Monaco

291

Montenegro

291

Morocco

292

Netherlands

293

Poland

294

Portugal

296

Romania

298

Russian Federation

300

Slovakia

301

Slovenia

303

Spain

304

Sweden

306

Switzerland

307

Ukraine

308

United Kingdom

309

Uruguay

321

Appendix 1 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000

323

Appendix 2 Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children

353

Appendix 3 Relevant Sections of the Family Procedure Rules 2010

371

Appendix 4 Comparative Table of Like Provisions: Jurisdiction and Recognition and Enforcement

433

Index

439