"Human Rights and the European Union Regulations on Private International Law : the needs to protect the right of family members " Elisabetta Bergamini Associate Professor of EU Law University of Udine

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 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

2201/2003 In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State (a) in whose territory: (a) in whose territory: - the spouses are habitually resident, or - the spouses are habitually resident, or - the spouses were last habitually resident, insofar as one of them still resides there, or - the spouses were last habitually resident, insofar as one of them still resides there, or - the respondent is habitually resident, or - the respondent is habitually resident, or - in the event of a joint application, either of the spouses is habitually resident, or - in the event of a joint application, either of the spouses is habitually resident, or - the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or - the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or - the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her "domicile" there; - the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her "domicile" there; (b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the "domicile" of both spouses. (b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the "domicile" of both spouses.

2201/2003 Article 8 Article 8 General jurisdiction General jurisdiction 1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seized. 1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seized.

2201/2003 Problems: Problems: favor divortii favor divortii legal kidnapping; legal kidnapping; recognition of judgements; recognition of judgements; protection of rights of family members and in particular of rights of the child protection of rights of family members and in particular of rights of the child

2201/2003 and 2001 Charter of fundamental rights (33) This Regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union, (33) This Regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union,

Charter of fundamental rights Article 7 Article 7 Respect for private and family life Respect for private and family life Everyone has the right to respect for his or her private and family life, home and communications. Everyone has the right to respect for his or her private and family life, home and communications.

Charter of fundamental rights Article 9 Article 9 Right to marry and right to found a family Right to marry and right to found a family The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights. The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.

Charter of fundamental rights Article 24 Article 24 The rights of the child The rights of the child 1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.

2201/2003 Case law: Case law: Hadadi : double nationality. Evaluation of rights of the wife. Hadadi : double nationality. Evaluation of rights of the wife. Purrucker: provisional measures Purrucker: provisional measures

2201/2003 Mercredi: habitual residence Mercredi: habitual residence The unmarried father issued proceedings 2 days after the mother removed the child to France. The High Court ordered the return of the child and made final Declarations that the child was habitually resident in England at the time the proceedings commenced and that her continued retention in France was in breach of rights of custody of the father and the court. The French Court concluded that the father had no rights of custody at the time of removal and rejected the Hague application. The unmarried father issued proceedings 2 days after the mother removed the child to France. The High Court ordered the return of the child and made final Declarations that the child was habitually resident in England at the time the proceedings commenced and that her continued retention in France was in breach of rights of custody of the father and the court. The French Court concluded that the father had no rights of custody at the time of removal and rejected the Hague application.

1259/2010 COUNCIL REGULATION (EU) No 1259/2010 of 20 December 2010 COUNCIL REGULATION (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation

1259/ Choice of law - Application to same-sex couples - No provisions on children (see Hague 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)

COUNCIL REGULATION (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations COUNCIL REGULATION (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations

REGULATION (EU) No 650/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession REGULATION (EU) No 650/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession

Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, COM(2011) 126 of 16 March 2011; Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, COM(2011) 126 of 16 March 2011; Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships, COM(2011) 127 of 16 March Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships, COM(2011) 127 of 16 March Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the European Union COM(2013) 228 final Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the European Union COM(2013) 228 final

Case study John, Croatian citizen and Chris, UK citizen, both resident in the Netherlands, get married in the Netherlands in They decide to go on living together in the Netherlands, where they both worked at the time. In 2012 they adopt a baby in the Netherlands and Chris goes back to live in the UK. He also seeks a work in that Country and they go on meeting in the UK during weekends and spending holidays together in the Netherlands. In January 2014 Chris starts a proceeding in the UK to divorce from John asking also for parental custody of the baby. Has the UK judge jurisdiction under 2201/2003 regulation? Which is the applicable law to divorce and to parental responsibility? How is the interest of the child to be considered ? In March 2014 John starts a similar proceeding in the Netherlands. Would the Netherlands judge be competent?

Case study What if they had chosen in 2012 to apply Croatian law to their divorce? (the choice was made on a table napkin during their wedding, hand written by John, dated and signed by both of them). What if they had chosen in 2012 to apply Croatian law to their divorce? (the choice was made on a table napkin during their wedding, hand written by John, dated and signed by both of them). What if John in 2013 kidnaps the baby and takes him back to live with him in the Netherlands? What if they were originally John and Jane (Jane became Robert in 2013) and they got married in Italy?

Thank you for your attention ! Elisabetta Bergamini University of Udine