1. Private International Law
Academic Year 2018/2019
Pietro Franzina –

2. Parental responsibility: jurisdiction (Brussels II bis)
The general rule (Article 8)
jurisdiction lies with the courts of the MS where the child is habitually resident
Prorogation of jurisdiction (Article 12)
the court seised of an application for divorce or legal separation has jurisdiction in any matter relating to parental responsibility connected with that application …
… where the jurisdiction of that court has been accepted by the spouses and by the holders of parental responsibility, and is in the superior interests of the child
Transfer to a court better placed to hear the case (Article 15)
by way of exception, the courts of a MS, if they consider that a court of another MS, with which the child has a particular connection (e.g., his or her former habitual residence), would be better placed to hear the case, and where this is in the best interests of the child, may
stay the case and invite the parties to request the other court to assume jurisd’n, or
request such a court to assume jurisdiction
Jurisdiction to issue provisional measures (Article 20)

3. Parental responsibility: applicable law (Hague 1996)
The Hague Convention of 1996 in a nutshell
comes (in part) with the scope of the exclusive external competence of the EU
is only open to States, not international organisations
the EU authorised MSs to ratify in the interest of the Union
includes rules on jurisdiction, the applicable law, the recognition and enforcement of judgments (the ‘one-stop-shop’ approach)
Specifically, the conflict-of-law rules (on ‘measures of protection’)
The lex fori approach (Article 15(1))
‘In exercising their jurisdiction … the authorities of the Contracting States shall apply their own law’
The safeguard clause (Article 15(2))
‘However, in so far as the protection of the person or the property of the child requires, they may exceptionally apply or take into consideration the law of another State with which the situation has a substantial connection’

4. International child abduction
The sources in Europe
the 1980 Hague Convention on child abduction + the Brussels II bis Regulation
Child abduction defined
removal / retention in a State other than that of the child’s habitual residence …
… in breach of rights of custody attributed under the law of the State in which the child was habitually resident immediately before removal / retention;
The return mechanism
the authority of the State where the child is should order the return
if less than one year has elapsed: the return should be ordered forthwith
if more than one year: return ordered unless child settled in the new environment
in any case, no return if grave risk that it would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation
Brussels II bis (Article 11(8)): ‘Notwithstanding a judgment of non-return …, any subsequent judgment which requires the return ... issued by a court having jurisdiction under this Regulation shall be enforceable … in order to secure the return of the child’