EUROPEAN PRIVATE INTERNATIONAL LAW Ester di Napoli LUMSA University, Rome 2-3 March 2019 dnpstr@unife.it

“Brussels II bis” Regulation “Brussels II bis” Regulation and the HCCH Article 60 - Relations with certain multilateral conventions “In relations between Member States, this Regulation shall take precedence over the following Conventions in so far as they concern matters governed by this Regulation: (a) the Hague Convention of 5 October 1961 concerning the Powers of Authorities and the Law Applicable in respect of the Protection of Minors; (b) the Luxembourg Convention of 8 September 1967 on the Recognition of Decisions Relating to the Validity of Marriages; (c) the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations; (d) the European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children; and (e) the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction”.

“Brussels II bis” Regulation Matrimonial matters: - is there any room for choice-of-court agreements? No.  but: (positive) forum shopping However, see Rapisarda v Colladon (Irregular Divorces) [2014] EWFC 35. Proceedings concerning 180 divorce petitions of Italian nationals, where in each case the petition stated wrongly that the habitual residence of the applicant or respondent was in England. Decrees absolute and nisi set aside and petitions dismissed. “Conspiracy to pervert the course of justice on an almost industrial scale”. Counterclaim (article 4) Conversion of legal separation into divorce (article 5)

“Brussels II bis” Regulation Matters of parental responsibility Remember: parents do not have to be married! Article 8 - general jurisdiction  habitual residence of a child “at the time the court is seised”. All the other rules on jurisdiction in matters of parental responsibility are exceptions Article 16 - seising of a Court: “a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent; or (b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.

“Brussels II bis” Regulation Matters of parental responsibility Child’s habitual residence v. adult’s habitual residence Recital 12: “The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility”. Recital 13: “In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case. However, in this case the second court should not be allowed to transfer the case to a third court”. Recital 33: “…full respect for the fundamental rights of the child” (Article 24 of the Charter)

CJEU’s decision of 28 June 2018, case C-512/17, HR Place of habitual residence of the child — Infant — Decisive circumstances for establishing that place of habitual residence (Following Mercredi case) The child’s place of habitual residence must be established on the basis of all the circumstances specific to each individual case. In addition to the physical presence of the child in the territory of a Member State, other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that it reflects some degree of integration of the child into a social and family environment (para. 41) to take into consideration factors such as the duration, regularity, conditions and reasons for the child’s stay in the territory of the different Member States concerned, the place and conditions of the child’s attendance at school, and the family and social relationships of the child in those Member States (43); where the child is not of school age, a fortiori where the child is an infant, the circumstances of the reference person(s) with whom that child lives, by whom the child is in fact looked after and taken care of on a daily basis — as a general rule, its parents, — are particularly important for determining the place which is the centre of that child’s life  Lastly, the intention of the parents to settle with the child in a given Member State, where that intention is manifested by tangible steps, may also be taken into account in order to determine the child’s place of habitual residence.

“Brussels II bis” Regulation Matters of parental responsibility Ex. Divorce proceedings: different MSs’ courts could hold jurisdiction over 1) matrimonial matters and 2) matters of parental responsibility Article 9 – Continuing jurisdiction of the child’s former habitual residence (where a child moves lawfully – 3 month period) Article 12 – Prorogation of jurisdiction Article 13 – Jurisdiction based on the child’s presence Article 14 – residual jurisdiction Article 15 – transfer to a court “better placed” to hear the case

“Brussels II bis” Regulation Matters of parental responsibility In particular see Article 12: prorogation of jurisdiction (i.e. choice-of-court agreement) 1. The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where: (a) at least one of the spouses has parental responsibility in relation to the child; and (b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised, and is in the superior interests of the child.

“Brussels II bis” Regulation Matters of parental responsibility In particular: Article 15 – transfer to a court “better placed” to hear the case 1. 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.

“Brussels II bis” Regulation Matters of parental responsibility In particular: Article 15 – transfer to a court “better placed” to hear the case 1. 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.

“Brussels II bis” Regulation Matters of parental responsibility See judgment of the CJEU of 27 October 2016, Case C- 428/15, Child and Family Agency v. JD, where the Court held that article 15(1) of Regulation No 2201/2003 must be interpreted as meaning that: “- in order to determine that a court of another Member State with which the child has a particular connection is better placed, the court having jurisdiction in a Member State must be satisfied that the transfer of the case to that other court is such as to provide genuine and specific added value to the examination of that case, taking into account, inter alia, the rules of procedure applicable in that other Member State; - in order to determine that such a transfer is in the best interests of the child, the court having jurisdiction in a Member State must be satisfied, in particular, that that transfer is not liable to be detrimental to the situation of the child”.

“Brussels II bis” Regulation Examination as to jurisdiction (article 17) Examination as to admissibility (article 18) Lis pendens and dependent actions (article 19) Provisional, including protective measures (article 20)

“Brussels II bis” Regulation RECOGNITION AND ENFORCEMENT Recognition of matrimonial decrees (of divorce, separation or annulment): articles 21-52 (Chapter III) These provisions do not apply to negative decisions refusing to grant divorce, separation or annulment; When a divorce is recognized in a MS under Chapter III  the marital status is completely terminated in all MSs  article 63 (Treaties with the Holy See)

“Brussels II bis” Regulation RECOGNITION AND ENFORCEMENT Article 21: “A judgment given in a Member State shall be recognized in the other Member States without any special procedure being required”; …in particular, no special procedure is required for updating the civil-status records of a Member State on the basis of a judgment relating to divorce, legal separation or marriage annulment  No “enforcement”

“Brussels II bis” Regulation RECOGNITION AND ENFORCEMENT Grounds for non-recognition for judgments relating to divorce, legal separation or marriage annulment (article 22) (“any interested party may …apply for a decision that the judgment be or not be recognized”): (a) “manifestly contrary” to public policy of the Member State in which recognition is sought; (b) where the decision was given in default of appearance (“procedural public policy”); (c) if it is irreconcilable with a judgment given in proceedings between the same parties in the Member State in which recognition is sought; or (d) if it is irreconcilable with an earlier judgment given in another Member State or in a non-Member State between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.

“Brussels II bis” Regulation RECOGNITION AND ENFORCEMENT Grounds for non-recognition for judgments relating to parental responsibility (article 23): (a) “manifestly contrary” to public policy of the Member State in which recognition is sought (+ best interests of the child); (b) where the decision was given, except in case of urgency, without the child having been given an opportunity to be heard; (c) where it was given in absentia and the person in default was not able to arrange for his/her defense; (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 judgment given in proceedings between the same parties in the Member State in which recognition is sought; or (f) if it is irreconcilable with an earlier judgment given in another Member State or in a non-Member State between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.

“Brussels II bis” Regulation RECOGNITION AND ENFORCEMENT article 24: no review of jurisdiction article 25: 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 article 26: non-review as to substance article 27: stay of proceedings – possibility

“Brussels II bis” Regulation RECOGNITION AND ENFORCEMENT Declaration of enforceability (articles 28-39) concerning judgments on the exercise of parental responsibility in respect of a child  the judgment shall be enforceable in the MS of origin, shall have been served and declared enforceable there (in the MS of recognition)  exequatur Section 4 (articles 40-45): No declaration of enforceability is needed for certain judgments (only the certificate ex article 39): - rights of access; - return of a child entailed by a judgment issued pursuant to Article 11, paragraph 8  no exequatur; reference to the pending revision of Regulation 2201/2003  See https://e-justice.europa.eu/

The 1996 hague convention Hague Convention of 19th October on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (entered into force, at the international level, on 1st January 2002) www.hcch.net Italy ratified the Convention in 2015  entry into force at the national level on the 1st January 2016

“Brussels II bis” Regulation Matters of parental responsibility – child abduction Article 10 – Jurisdiction in cases of “child abduction” within the meaning of the 1980 Hague Convention (exception to art. 8): “wrongful removal of a child from, or a wrongful retention of a child outside, the territory of the Contracting State in which the child was habitually resident immediately before the removal or retention”.  Brussels II bis regulation “dialogues” with the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (article 60); co-operation between central authorities; 100 Contracting parties “acquiring a new habitual residence”  see the Child Abduction Section here: https://www.hcch.net/en/instruments/conventions/specialised-sections/child-abduction

“Brussels II bis” Regulation Matters of parental responsibility – child abduction Article 13 of the 1980 Hague Convention: exceptions to the obligation to order return: when the person, institution or other body which opposes return establishes that the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; when the opponent of return establishes that there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; where the court finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his views.

“Brussels II bis” Regulation Matters of parental responsibility – child abduction Article 11 of Brussels II bis – Return of the child supplements and strengthens the provisions of the Hague Convention in cases of abduction between EU Member States. 11.2 When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity. 11.8  Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.

PRACTICAL CASE Antonio, an Italian national, and Roberta, a US national, marry in Canada in May 2002. Roberta acquires the Italian nationality. They travel a lot from Montreal to Rome, where Antonio often has business meetings. In 2005 Cloe was born. Since then, Roberta decides not to follow Antonio on his trips to Italy: this deeply affects their relationship. In 2008, Antonio finally moves to Florence, his city of origin. Roberta and Cloe remain in Montreal. A few months after his arrival, Antonio decides to terminate his marriage with Roberta.

PRACTICAL CASE You are Antonio’s lawyer. Explain his options under EU Private International Law.  Matrimonial matters  Matters of parental responsibility Would your strategy have been different if they had lived in Germany, instead of Canada? CJEU, case Mercredi (to be read).