Current Law

What legislation do we need to look at currently for Intra European Child law?

Currently the main EU Regulation that deals with jurisdiction for divorce, child matters and also child abduction, is EU Regulation 2201/2003 which is often referred to as Brussels ll bis - BIIR for short.  This covers all matters pertaining to parental rights and parental responsibilities ("PR & Rs"), including what we know as residence and contact actions, but it also includes matters which might commonly be thought of in Scotland as public law matters.  There are a number of issues not specifically covered, for example establishing or disputing paternity. 

What does BIIR currently say:

• The primary rule is found in Article 8 of BIIR which states that in an EU member State context the Court that can hear the proceedings is where the child is habitually resident and this is assessed at the time the action is raised. 
• If the child moves to another EU member State of consent, and the child acquires new habitual residence, their previous country of habitual residence will still retain jurisdiction to modify orders for three months under Article 9. 
• However, if a holder of PR & Rs removes a child from a country of habitual residence without the consent of any other holders of PR & Rs or a Court Order overturning that consent, then under Article 10, the old country of habitual residence would retain jurisdiction. 
• Article 12 allows the court dealing with a child's parents divorce to also hear the child matter provided it is in the best interests of the child.
• Article 13 allows courts where a child is present and his habitual residence cannot be ascertained to take jurisdiction
• Article 15 allows transfer of cases under certain conditions. 
• Article 20 allows emergency jurisdiction to be taken in the country which the child is present in but not habitually resident in, but only until the courts of the country of habitual residence makes substantive orders.
• Under BIIR conflicts of jurisdiction are resolved via the Lis pendens rule (Article 19), which operates in favour of the court first seized but in child cases habitual residence does take precedence.
• Article 61 of BIIR makes clear that the European Regulation takes priority of the 1996 Hague Convention[1] if a child is habitually resident in an EU member State.
• When determining recognition and enforcement of judgments (and this will be important when we look at the position after 31 December 2020), Article 21 provides that PR & R  judgments of member States are to be recognised without any further procedure.  An interested party may apply for a judgment to be recognised or not recognised (the grounds that non-recognition are set out in Article 23), and the judgment cannot be reviewed as to it substance (Article 26). 
• In order to enforce a judgment in Scotland, a Certificate under Article 39 requires to be obtained from the Court that made the judgement and then an application to the Court of Session is then made for registration (RCS 62) and if the application is successful, the foreign judgment is converted into a Scottish Decree and can be enforced in the same way you would any Scottish PR & R Order. 
• Article 41 of BIIR contains a special procedure for the enforcement of judgments relating to access (i.e. contact). 

BIIR does provide additional layers to the 1980 Hague Convention on International Parental Child Abduction[2] as follows:

• It states for example in European cases that the 1980 Convention proceedings must take place within six weeks unless exceptional circumstances (Article 11),
• Under Article 11 if a Non-return Order is made in the country that the child has been abducted to on the basis of an Article 13 defence, then the Court of the country that the child has been abducted from can overturn that Non-return Order (Article 42).  This rule is sometimes referred as the "second bite of the cherry rule".
• it is mandatory to take children's views (Article 11).
• if the Court is looking at a grave Article 13 defences, then they must look at whether protective measures can be put in place to allow return of the child (Article 11).

My next blog for this topic will focus on post Brexit child law.