Family Law Disputes involving the EU
We have recently been instructed in a care proceedings by a parent living in Poland. Our client’s child was living in a Trust foster placement in Northern Ireland. The Mother had wanted to have proceedings transferred to her home country of Poland.
A legal question arose as to whether the application be made under Article 15 of the Council Regulation (EC) No 2201/2003 (Brussels IIa) or alternatively under Articles 8 & 9 of the 1996 Hague Protection of Children Convention. The legal issue arose due to Brexit and in circumstances whereby the extant proceedings began before to withdrawal date but the transfer application was to be made after withdrawal date.
Brussels IIa (Regulation EC No 2201 / 2003) no longer applies in Northern Ireland after 31st December 2020 following the UK withdrawal from the EU pursuant to the “Withdrawal Agreement” (Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community) and the 1996 Hague Protection of Children Convention now applies.
Article 50(3) of the Treaty on the European Union specified that the Treaties (including Protocols and annexes) ceased to apply to the UK from the date of entry into force of the “Withdrawal Agreement Act” (the European Union (Withdrawal Agreement) Act 2020). In terms of domestic law and as retained EU law Brussels IIa was revoked by the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 and as set out above will no longer apply in Northern Ireland after 31st December 2020.
From 1st January 2021 the 1996 Hague Protection of Children Convention will apply in cases where questions of jurisdiction to hear private law cross border cases arise.
Does Brussells IIA apply?
According to Article 67(1) of the Withdrawal Agreement, in respect of proceedings instituted before the end of the transition period, the EU Rules on international jurisdiction continue to apply in the United Kingdom and in the Member States in situations involving the United Kingdom.
Article 67(1) of the Withdrawal Agreement specifies the EU rules on jurisdiction also apply to “proceedings or actions that are related to such legal proceedings” even if such related proceedings or actions are instituted after the end of the transition period.
The position is not clear in circumstances where a case was instituted prior to exit date but the application to transfer proceedings is instituted after exit date and may require to be clarified.
Article 15 of Brussels IIA:
ARTICLE 15
Transfer to a court better placed to hear the case
By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:
(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or
(b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5.
2. Paragraph 1 shall apply:
(a) upon application from a party; or
(b) of the court’s own motion; or
(c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3.
A transfer made of the court’s own motion or by application of a court of another Member State must be accepted by at least one of the parties.
3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:
(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or
(b) is the former habitual residence of the child; or
(c) is the place of the child’s nationality; or
(d) is the habitual residence of a holder of parental responsibility; or
(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property.
4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1.
If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.
1. The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.
2. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.
Articles 8 & 9 of the 1996 Hague Convention – parallel provisions to Article 15:
‘Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children’
Article 8
(1) By way of exception, the authority of a Contracting State having jurisdiction under Article 5 or 6, if it considers that the authority of another Contracting State would be better placed in the particular case to assess the best interests of the child, may either
– request that other authority, directly or with the assistance of the Central Authority of its State, to assume jurisdiction to take such measures of protection as it considers to be necessary, or
– suspend consideration of the case and invite the parties to introduce such a request before the authority of that other State.
(2) The Contracting States whose authorities may be addressed as provided in the preceding paragraph are
a) a State of which the child is a national,
b) a State in which property of the child is located,
c) a State whose authorities are seised of an application for divorce or legal separation of the child’s parents, or for annulment of their marriage,
d) a State with which the child has a substantial connection.
(3) The authorities concerned may proceed to an exchange of views.
(4) The authority addressed as provided in paragraph 1 may assume jurisdiction, in place of the authority having jurisdiction under Article 5 or 6, if it considers that this is in the child’s best interests.
Article 9
(1) If the authorities of a Contracting State referred to in Article 8, paragraph 2, consider that they are better placed in the particular case to assess the child’s best interests, they may either
– request the competent authority of the Contracting State of the habitual residence of the child, directly or with the assistance of the Central Authority of that State, that they be authorised to exercise jurisdiction to take the measures of protection which they consider to be necessary, or
– invite the parties to introduce such a request before the authority of the Contracting State of the habitual residence of the child.
(2) The authorities concerned may proceed to an exchange of views.
(3) The authority initiating the request may exercise jurisdiction in place of the authority of the Contracting State of the habitual residence of the child only if the latter authority has accepted the request.
Conclusion:
Article 67 of Withdrawal Agreement is the operative legal provision which should be engaged to reach a conclusion on this issue. If the legal position is unclear the domestic Court are entitled to seek a preliminary ruling from the ECJ under Article 267 TFEU (‘a reference’).
Notwithstanding the above, an applicant has a legal basis in either event to move an application to transfer family proceedings to another jurisdiction. In many ways the provisions in Articles 8 & 9 of the 1996 Hague Convention correspond to the provisions within Brussels IIA in any event.