BRUSSELS II REVISED (BIIR / BIIA) EU Regulation 2201/2003
* Applies to European signatories & takes precedence over Hague
* Applies to children up to 16
* Jurisdiction retained by outgoing court for 3 months after move
* Habitual residence or presence in jurisdiction founds jurisdiction (if habitual residence cannot be established)
* Mechanism for transfer in & out – Article 15
* Provisional measures in urgent situations recognised – Art 20
* Many more recognition & enforcement provisions – certificated orders post 1.3.05 are directly enforceable
* Art 23 - grounds for non-recognition
* Certification process for orders
* Art 56 – procedure to follow re placement abroad – prior consultation required – consent to placement not required*
* No reference to possibility of charges - Central Authority etc bears costs
Signatories: Austria, Belgium, Bulgaria, Cyprus (South), Czech Republic, Estonia, Finland, France, Germany, Hungary, Republic of Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, United Kingdom
NB NOT DENMARK
Grounds of non-recognition for judgments relating to parental responsibility
A judgment relating to parental responsibility shall not be recognised:
(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child;
(b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought;
(c) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally;
(d) on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard;
(e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought;
(f) if it is irreconcilable with a later judgment relating to parental responsibility given in another Member State or in the non-Member State of the habitual residence of the child provided that the later judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.
(g) if the procedure laid down in Article 56 has not been complied with.
Prohibition of review of jurisdiction of the court of origin
The jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in Articles 22(a) and 23(a) may not be applied to the rules relating to jurisdiction set out in Articles 3 to 14.
Differences in applicable law
The recognition of a judgment may not be refused because the law of the Member State in which such recognition is sought would not allow divorce, legal separation or marriage annulment on the same facts.
Non-review as to substance
Under no circumstances may a judgment be reviewed as to its substance.
Placement of a child in another Member State
1. Where a court having jurisdiction under Articles 8 to 15 contemplates the placement of a child in institutional care or with a foster family and where such placement is to take place in another Member State, it shall first consult the central authority or other authority having jurisdiction in the latter State where public authority intervention in that Member State is required for domestic cases of child placement.
2. The judgment on placement referred to in paragraph 1 may be made in the requesting State only if the competent authority of the requested State has consented to the placement.
3. The procedures for consultation or consent referred to in paragraphs 1 and 2 shall be governed by the national law of the requested State.
4. Where the authority having jurisdiction under Articles 8 to 15 decides to place the child in a foster family, and where such placement is to take place in another Member State and where no public authority intervention is required in the latter Member State for domestic cases of child placement, it shall so inform the central authority or other authority having jurisdiction in the latter State.
Unreasonable behaviour, unreasonable judges or unreasonable law? - Actually, the first of those is a misnomer – as we explored in an earlier post the law on divorce in England & Wales requires behaviour (maybe unreasonable...
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