Matters Of Parental Responsibility Research Articles

The interplay of EU Regulation 2019/1111 with the 1980 Hague Convention in matters of child abduction

Even if Regulation 2019/1111 have a quite limited impact on the EU system of jurisdictional competence and of recognition and enforcement of judgments in matters of parental responsibility, it introduced several novelties with regard to the section devoted to child abduction matters. The adoption of those new provisions suggests to investigate whether this also led to a change in the approach of the Regulation as towards the 1980 Hague Convention. The paper attempts to make it clear that the reference to complementarity can better explain the interplay between the two instruments and that, even more than in the past, the Regulation is not aimed at setting aside the operation of the Convention, but rather at providing special rules for its implementation within the European judicial area.

Some comments related to the international child abduction as regulated by the Council Regulation (EU) no. 1111/2019 and the Romanian Case Law

Considering that the international child abduction has increased nowadays, as it results from the Romanian case law, we have decided to study this part of the new Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (hereinafter referred to as the “Regulation No. 1111/2019”).
 For this purpose, we shall also outline the differences between the Regulation No. 1111/2019 and the 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repealing Regulation (EC) No 1347/2000 (hereinafter referred to as the “Regulation No. 2201/2003”), which shall be repealed by the Regulation No. 1111/2019 from the 1st of August 2022.
 The international child abduction is included in the title of a regulation for the first time. As well, a special chapter related to the international child abduction was inserted – Chapter III, articles 22-29. This amendment included by the Regulation No. 1111/2019 is not only useful, but also natural, given that the issue of the international child abduction is a complete separate issue from the parental responsibility and the exercise of this responsibility.
 The new Regulation No. 1111/2019 provides clarifications in relation to the period when the seised court must give its decision, in article 24, entitled Expeditious court proceedings.
 In accordance with the legal provisions of both the Regulation No. 1111/2019 and the 1980 Hague Convention, for ordering the return of a child the following conditions must be met: (i) there has been a breach of the rights of custody, (ii) the person, institution or other body having the care of the person of the child was actually exercising the custody rights at the time of removal or retention, (iii) the child was habitually resident immediately before the wrongful removal or retention in the state where the return is requested, (iv) the person, institution or other body having the care of the person of the child had not consented to or subsequently acquiesced in the removal or retention, (v) no exception provided by articles 12 and 13 of the 1980 Hague Convention applies.

Przepisy Kodeksu postępowania cywilnego regulujące postępowanie w sprawach dotyczących uprowadzenia dziecka za granicę wobec zmiany rozporządzenia Bruksela IIa

On 1 August 2022, Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction which is a recast version of the Brussels IIa Regulation, will enter into force. One of the objectives of enacting Regulation 2019/1111 was to review the solutions for the return of a wrongfully abducted child. The subject of this article is the analysis of the provisions of the Code of Civil Procedure applicable in cases of international child abduction in the light of the assumptions of Regulation No 2019/1111. Its aim is to answer the question whether, and if so to what extent, the solutions adopted by the EU legislator require amending the provisions of the Code of Civil Procedure.

The Recast of the Regulation on Jurisdiction, the Recognition and Enforcement of Decisions in Matrimonial Matters and the Matters of Parental Responsibility (Brussels IIb)

The Recast of the Regulation on Jurisdiction, the Recognition and Enforcement of Decisions in Matrimonial Matters and the Matters of Parental Responsibility (Brussels IIb)

International Jurisdiction to Adjudicate in Parental Responsibility Matters―Focusing on the Introduction to the Brussels II ter Regulation―

There has been little discussion about the international jurisdiction rules to adjudicate in parental responsibility matters in Korea, although it is very important for the parties, for the welfare of their children and for the prevention of international child abduction. The draft amendment to the Act on Private International Law, which is currently pending before the National Assembly, introduces a new provision on international jurisdiction in parental responsibility matters, however it is not so satisfactory for the best interests of children. First, it can expose children to custody disputes repeatedly because the provision is designed to expand the possibility of international litigation concurrence. Second, it can make the appropriate hearing for children difficult because the courts having international jurisdiction over marital matters can also proceed with the related custody cases. In contrast, the EU Council Regulation 2019/1111 on Jurisdiction, the Recognition and Enforcement of Decisions in Matrimonial Matters and the Matters of Parental Responsibility and on International Child Abduction amended in 2019(Brussels II ter Regulation) repudiates the connection of the international jurisdiction rule for marital matters and for parental responsibility matters. This article is written for the introduction to the main amendments of Brussels II ter Regulation in this area and for the suggestion of the new international jurisdiction rules to adjudicate in parental responsibility matters in the viewpoint for the best interest of children.

Wybrane zagadnienia dotyczące odpowiedzialności rodzicielskiej w razie transgranicznej zmiany miejsca zwykłego pobytu dziecka, którego rodzice żyją w rozłączeniu

The subject of this study is an attempt to capture and analyse selected issues regarding parental responsibility in the event of a trans-border change of habitual residence of a child whose parents live apart in different countries when parents need to change the existing arrangements concerning their parental responsibilities and, in particular, the existing right of access with regard to the child. For clarification purposes, various problems which are covered by the study have been discussed using a case-study method with Polish-Italian family relations in the background. The main issues raised by the authors relate to the law applicable to parental responsibility as well as jurisdiction, recognition and enforcement of foreign court judgments (including court settlements) in matters of parental responsibility. Some attention is devoted also to the possibility of securing the implementation of court judgments made with regard to the parents’ right of access.

Litispendencia como condición denegatoria de reconocimiento de una resolución extranjera

Este trabajo tiene por objeto, al hilo de la STJUE de 16 de enero de 2019, Stefano Liberato v. Luminita Luisa Grigorescu, y en el marco de las disposiciones del Reglamento 2201/2003 y Reglamento 44/2001, determinar cómo afecta la infracción de las reglas de litispendencia internacional a la hora de valorar el reconocimiento de una resolución extranjera relativa a crisis matrimoniales, responsabilidad parental y obligaciones de alimentos emitida a partir del incumplimiento de tales reglas.

Dobro dziecka w sprawach o uprowadzenie dziecka za granicę. Zmiany w prawie i ich spodziewane skutki

The international child abduction is regulated in the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, in the 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 (Brussels II bis), and in the domestic law — in the Code of Civil Procedure. In the recent years the Regulation Brussels II bis was subject to review. As a result drawbacks were indicated and amendments have been proposed, in particular with a view of simplifying the procedures. The changes were triggered by the increasing number of cases in which one of the parents removes the child without a consent from the other. The Ministry of Justice does not provide any data on the amount of cases taking place in Poland. It is nevertheless certain that this amount has increased in comparison to previous years. Moreover, it is acknowledged that contrary to the Hague Convention and the EU Regulation, many children abducted by their parents are retained in Poland. The amendments to the Code of Civil Procedure seem to address this situation and streamline the process of the return of the children. The question remains: do the proposed amendments to the EU Regulation and those already enacted in the Code of Civil Procedure warrant to a sufficient degree that the welfare of a child — being one of the determinants of these regulations — is safeguarded?

El Artículo 15 del Reglamento 2201/2003 y la remisión a un órgano jurisdiccional mejor situado para conocer del asunto. Nota a la Sentencia del TJUE de 4 de octubre de 2018, IQ y JO, AS. 478/17 = Article 15 of Regulation 2201/2003 and the transfer to a court better placed to hear the case. Comment to the ECJ Judgment 4

Resumen: Esta Sentencia tiene por objeto la interpretación del artículo 15 del Reglamento (CE) N.o 2201/2003 del Consejo, de 27 de noviembre de 2003, relativo a la competencia, el reconocimiento y la ejecución de resoluciones judiciales en materia matrimonial y de responsabilidad parental, por el que se deroga el Reglamento (CE) n.o 1347/2000. La cuestión que se planteó era cómo había que proceder en una situación caracterizada por el hecho de que los tribunales de los dos Estados miembros afectados tenían competencia judicial internacional conforme a las disposiciones de este Reglamento para conocer del fondo del asunto.Palabras clave: remisión a un órgano jurisdiccional mejor situado, tribunal competente para conocer del fondo del asunto.Abstract: This judgment refers to the interpretation of Article 15 of 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. The question was how to proceed in a situation characterised by the fact that the courts of both Member States concerned, had jurisdiction under this Regulation.Keywords: transfer to a court better placed to hear the case, court having jurisdiction as to the substance of a case.

Crisis matrimoniales y la reforma de las reglas domésticas españolas de competencia judicial internacional: paso adelante o paso atrás

Este trabajo tiene por objeto analizar la reciente reforma de las normas domésticas españolas de competencia judicial internacional en materia de crisis matrimoniales. Estas reglas son aplicables en ciertos casos aun cuando la vinculación de los operadores jurídicos españoles (y de los Estados miembros de la UE) por el Reglamento (CE) núm. 2201/2003, del Consejo, de 27 de noviembre de 2003, relativo a la competencia, el reconocimiento y la ejecución de resoluciones judiciales en materia matrimonial y de responsabilidad parental. Se examina la nueva normativa doméstica en su comparación con la derogada, con la intención de determinar si mejora el sistema o, por contrario, no había razón para modificar el régimen anterior.

La protección del menor no acompañado solicitante de asilo: entre estado competente y estado responsable = The protection of unaccompanied minors asylum-seekers: between competent state and responsible state

Resumen: Los instrumentos de la segunda generación del Sistema Europeo Común de Asilo (SECA) incorporan el interés superior del menor como consideración primordial. En consonancia con ello prevén medidas de protección de los menores, en particular de los no acompañados, a adoptar primero por el Estado miembro que determina el Estado miembro responsable de decidir sobre la solicitud de asilo, y luego por este mismo. Por su parte, inspirado también en el interés superior del menor el Reglamento Bruselas II bis regula la competencia judicial internacional en materia de responsabilidad parental. Habida cuenta de la convergencia es legítimo preguntarse por las relaciones entre los textos. Si del examen resulta una falta de alineación de los instrumentos susceptible de afectar negativamente a los menores a los que presuntamente quieren proteger será preciso reflexionar sobre cómo resolver los conflictos.Palabras clave: menores no acompañados, solicitud de protección internacional, competencia judicial internacional, Estado miembro responsable, Reglamento Bruselas II bis, Reglamento de Dublín III.Abstract: The Common European Asylum System (CEAS) instruments of second generation incorporate the child’s best interests as a primary consideration. Accordingly, they provide for measures to protect minors, in particular unaccompanied ones, to be adopted firstly by the Member State which determines the Member State responsible for examining an application for international protection, and then by the latter Member State. Inspired as well by the best interests of the child, the Brussels II bis regulation sets the rules on international jurisdiction in matters of parental responsibility. The convergence begs the question of the interface between the texts. If the examination results in a lack of alignment among the instruments that may adversely affect the individuals they are meant to protect it will be necessary to reflect on how to resolve the conflict.Keywords: unaccompanied minors, application for international protection, jurisdiction, responsible Member State, Brussels II bis regulation, Dublin III regulation

MARGINALIJE UZ (MEĐUNARODNU) NADLEŽNOST U PREDMETIMA O RODITELJSKOJ SKRBI

The criteria of the 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 (hereinafter: Regulation) concerning the jurisdiction in the matters of parental responsibility differ from the criteria adopted in domestic law. First, this applies to situations in which the ancillary matters relating to parental responsibility are connected with the divorce proceedings. The specificities of these proceedings of domestic law are also peaceful resolution mechanisms. The peaceful resolution mechanisms should precede the seising of a court, which opens the question of the definition of “seising of a court” in the system of the jurisdiction established by the Regulation. The aim of this paper is to analyse the rules of the (international) jurisdiction for the ancillary proceedings on parental responsibility. The practical issues that arise from the implementation of the Regulation are also discussed. At the time of writing, the Proposal for a recast of the Regulation was published, in which certain interventions in the system of jurisdiction in the matters of parental responsibility are made. The procedural consequences of the revised rules on jurisdiction in the matters of parental responsibility are also analysed in this paper.

Das Kindeswohl im spanischen Familienrecht. Eine vergleichende Analyse mit dem US-Recht

Abstract: The general principle of law is the best interest of the child. This principle is inserted in a general clause in the Spanish Youth Protection Act of 15 January 1996. As a result, the Spanish judge is now able to apply this principle directly rather than subsidiary, which means that Spanish family law is now required to be interpreted from the perspective of the best interest of the child. The best interest of the child is now the central axis and has priority in the Spanish family law. This paper studies the concept of best interest of the child in the Spanish legal system and its application in special cases that are discussed within Spanish law. These cases are: conflicts between the biologic family and the foster family, the open adoption, and the jurisdiction of judgments in matters of parental responsibility.

The Rinau Case and the wrongful removal or retention of children

The Rinau Case is a landmark decision of the ECJ regarding the wrongful removal or retention of children in the Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments both in matrimonial matters and those of parental responsibility (Brussels II bis). Having this case as starting point, this article explains the fast proceedings laid down in Brussels II bis Regulation for situations of wrongful removal or retention of children and the special rules for the recognition of the decision of return of the child wrongfully removed or retained in another Member State. However, as a preliminary point of discussion, and in order to allow a more comprehensive understanding of the proceedings concerning the wrongful removal or retention of children under the Regulation, a brief explanation of the framework of the regulation and the rules of international jurisdiction in matters of parental responsibility is provided.

Unification of Judicial Practice Concerning Parental Responsibility in the European Union – Challenges Applying Regulation Brussels II Bis

Abstract The article briefly describes international legislation in parental responsibility matters and focuses on the 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 (in practice called Brussels II a or Brussels II bis). The essay reveals and analyses the difficulties which occur while hearing parental responsibility cases within the European Union. Particular attention is given to special cases which were difficult to resolve for the national courts of the Republic of Lithuania. Also, the practice of the Court of Justice of the European Union is examined. The guidelines on how to avoid the problems of establishing jurisdiction are given. The relations of 1980 Hague Convention on international child abduction and Regulations Brussels II bis are revealed and the reasons for adoption of the Regulation are highlighted. The article also proposes improvements for Article 15 of the Regulation and the effective application of a modified forum non conveniens doctrine in parental responsibility cases.

Prorogation of Jurisdiction in Family- Law Matters: Analysis of Current National Legislation and International Treaties of Ukraine

This article examines whether the principle of party autonomy and prorogation of jurisdiction may be applied in cross-border litigation on family-law matters. Drawing different sources, including scientific works, national legislation of Ukraine, international treaties, instruments on codification of the principles on transnational civil procedure, the paper first gives a brief overview of the history and current situation concerning regulation of prorogation of jurisdiction. Then, the author presents the results of a study of jurisdictional rules provided by Ukrainian internal legal acts and international agreements on jurisdiction in which Ukraine is a party (the Hague Conventions, bilateral and multilateral treaties on legal assistance and legal relations in civil and family relations) and draws conclusions concerning peculiarities of prorogation of jurisdiction for matters arising from family-law relations. Attention is also paid to the comparative overview of the Hague Conventions and Regulations of the European Union (Regulation No 2201/2003/EC of November 27, 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility and Regulation No 4/2009/EC of December 18, 2008 on Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions and Cooperation in Matters Relating to Maintenance Obligations). Several opinions of the European Court of Justice on some issues of prorogation of jurisdiction are noted, as well. The most remarkable changes in the prorogation agreements regulation in Ukraine took place by the entry into force in 2005 of the Law of Ukraine on Private International Law. Article 76 of the Law stipulates for the first instance when Ukrainian courts may initiate the proceedings and try cases with a foreign element the instance “if the parties chose the jurisdiction of Ukrainian courts over a case with a foreign element by their agreement”. The Hague Conventions on jurisdiction and children protection in which Ukraine is a party (Convention of October 19, 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children and Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance) concretize provisions of p. 1 Art. 76 of the Law of Ukraine on Private International and specify three variants of prorogation of jurisdiction in family-law matters. They are the following ones: (I) the respondent submits to the jurisdiction either expressly or by defending on the merits of the case without objecting to the jurisdiction; (II) jurisdiction based on the agreement in writing by the parties; (III) jurisdiction of the court seized of a divorce (legal separation or marriage annulment) is accepted for the case on parental responsibility expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility.

INTERNATIONAL JURISDICTION RULES IN MATTERS OF PARENTAL RESPONSIBILITY IN THE EUROPEAN UNION AND BOSNIA AND HERZEGOVINA: THE CONCEPT OF HABITUAL RESIDENCE V. NATIONALITY

The rules of jurisdiction in matters of parental responsibility contained in the Brussels II bis Regulation are based on the concept of habitual residence, while the legislation in B&H in this area gave priority to the principle of nationality. Analyzing these concepts, the author of the paper points to the importance of interpreting the concept of habitual residence by the European Court of Justice, and gives possible directions for reform of the relevant provisions of the PIL Act in terms of their compliance with EU law.

Regulation 2201/2003 (Brussels II bis) on recognition and enforcement of judgments in matters of parental responsibility

Regulation 2201/2003 (Brussels II bis) contains unique, special rules on exequatur of two types of foreign judgments: on the right to visitation and on the return of the child abducted from the state of her/his habitual residence. The paper discusses these rules, with reference to the broader context that includes rules on international jurisdiction of courts of EU Member States in matters of parental responsibility, and rules of exequatur of foreign judgments on parental responsibility in general. The importance of the unique rules is reflected in the fact, that the enforcement of judgments of the courts of EU Member States in these matters is automatic, which means without the need of any special procedure, on the basis of certificates issued by the court of a Member State that has given the judgment, and without review by the Member State of enforcement, thus contributing to the effective exercise of parental responsibility in the child's best interests.

CURRENT DEVELOPMENTS: I. Brussels II bis: Matrimonial Matters, Parental Responsibility, Child Abduction and Mutual Recognition

At the Justice and Home Affairs (JHA) Council meeting in Brussels on 2 and 3 October 2003 final political agreement was reached on a new and expanded version of the Brussels II Regulation, a text which has commonly become known as Brussels II bis. The instrument, which was adopted by the JHA ministers on 27 November, has now received formal classification as Council Regulation No 2201/2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and Matters Relating to Parental Responsibility Repealing Regulation (EC) No 1347/2000.1 The net result of this precipitous reform is that Brussels JJ shall cease to have effect from 1 May 2005,2 a mere 4 years and 2 months after it entered into force. Henceforth there will be a single, integrated instrument which will cover, inter alia, the free movement of judgments in matters of parental responsibility as well as of matrimonial judgments and introduce provisions on cooperation between Member States.

Jurisdiction and Enforcement in International Family Law: A Labyrinth of European and International Legislation

Since 1 March 2001, family courts in the European Union (except Denmark) have been obliged to follow the rules of EC Regulation No. 1347/2000 of 29 May 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for Children of Both Spouses. The Regulation was meant to complement the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968, and that is why it has come to be known as the ‘Brussels II Regulation’. The Convention covers, roughly speaking, patrimonial matters – such as property, contracts and torts – while the Regulation deals with divorce and child custody. On 1 March 2002, another Regulation entered into force, replacing the Brussels Convention and therefore aptly called the ‘Brussels I Regulation’. However, ‘Brussels I’ does not apply in Denmark, and that means that the Brussels Convention is still in force as between Denmark and the other EU member states. To complicate matters further, another Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters continues to apply in all EU member states, as well as in Norway, Iceland, Switzerland and Poland: the Lugano Convention of 1988. Its text is virtually identical to that of the Brussels Convention, but there are major differences between the Lugano Convention and the Brussels I Regulation. As far as patrimonial matters are concerned, the courts in Europe now have to juggle with three different sets of rules: the Brussels I Regulation, the Brussels Convention and the Lugano Convention.