unalex. Compendium

Except as otherwise provided in matrimonial matters, the Regulation permits jurisdiction agreements in the area of parental responsibility under the requirements set out in Article 12 Brussels IIa Regulation with the aim of establishing the jurisdiction of the courts of a Member State in which the child does not have its habitual residence. The reason is that it can only be in the best interests of the child if the parents are in agreement about the court that is to have jurisdiction in matters relating to rights of custody and/or access.

The Regulation distinguishes between proceedings related to parental responsibility that are connected to matrimonial proceedings (Article 12(1) and (2) Brussels IIa Regulation) or that have been instituted independently from such proceedings by the parents in a Member State to which the child has a substantial connection (Article 12(3)). In both cases, jurisdiction must be in accordance with the best interests of the child in order for the agreement to be valid.

Jurisdiction under Article 12 Brussels IIa Regulation has precedence over the general jurisdiction at the habitual place of residence of the child (Article 8(2)). However, a jurisdiction agreement has binding force only once the court is seised, given that it may be revoked at any time under Article 12(1)(b) or 12(3)(b). As underlined in Article 12(4), Article 12 also applies if the child is not habitually resident in a Member State of the Regulation but in a third State.

Under Article 12(1) Brussels IIa Regulation, spouses have the option of combining an application for a decision on parental responsibility with an application for divorce, legal separation or annulment (Article 1(1)(a)), even if the child is not habitually resident in the Member State whose courts have been seised in the matrimonial matter. According to the wording of Article 12(1), this option is only available if the courts have jurisdiction in the matrimonial matter under Article 3. But jurisdiction of the agreed court in the matrimonial matter under Article 4 or 5 is also sufficient, while a mere residual jurisdiction under national procedural law pursuant to Article 7(1) is not sufficient.

Jurisdiction under Article 12(1) Brussels IIa Regulation is only established if the application connected to the matrimonial matter relates to parental responsibility within the meaning described in Article 1(2)(a), that is to say, to rights of custody and/or access. Furthermore, this application under Article 12(1) has to be “connected” to the application relating to matrimonial proceedings, i.e., it must be made either at the same time as the application in the matrimonial matter or during the already commenced matrimonial proceedings. By contrast a formal connection, as provided for in some Member States between the matrimonial proceedings and the proceedings related to parental responsibility, is not required.

The right to combine proceedings for rights of custody or access with the application for divorce, legal separation or annulment exists under Article 12(1)(a) Brussels IIa Regulation only if at least one of the spouses is the holder of parental responsibility for the child. In contrast, it is not sufficient that one parent is granted rights of access to the child only while parental responsibility is exercised by a third party (e.g. an authority).

It is only possible to refer to a “jurisdiction agreement” if the spouses or the other holders of parental responsibility (Article 2(8) Brussels IIa Regulation) have “accepted expressly or otherwise in an unequivocal manner” the jurisdiction of the seised court at the time the proceedings relating to parental responsibility are instituted. The jurisdiction agreement does not require a special form.

“Acceptance” may also be given implicitly provided it unequivocally expresses agreement with the jurisdiction of the seised court. However, this agreement must specifically refer to a decision relating to rights of custody or access and not merely to the execution of the divorce proceedings. An acceptance of jurisdiction is also not present in the case of a combined application for separation or divorce and custody rights if the applicant has only subsequently lawfully relocated his habitual residence and that of the child to another State. Another argument against implicit acceptance is the case where one parent has already seised another court in matters relating to rights of custody or access.

An acceptance of jurisdiction is lacking if one of the parents objects to it. A conditional appearance of the respondent in the court seised will not alter this. The mere appearance by the respondent in the proceedings without contesting the court’s jurisdiction is also not an “acceptance” of jurisdiction in an unequivocal manner. The same is true if the legal representative of the respondent who has been appointed by the court of its own motion in view of the impossibility of serving the document instituting proceedings on the respondent, has not pleaded the lack of jurisdiction of the court.

According to the wording of Article 12(1)(b) Brussels IIa Regulation, both parties to the proceedings have to accept the jurisdiction of the court for matrimonial matters at the time the court is seised. This point in time is to be determined in accordance with Article 16.

Ultimately, the choice of court mutually agreed by those involved must be in the best interests of the child. The term best interests of the child is to be determined in view of Article 10 Hague Convention on Parental Responsibility and Protection of Children. Therefore, when examining this standard for the best interests of the child, the focus is on the best interests of the child from a jurisdiction point of view.

The jurisdiction agreement concluded in accordance with Article 12(1) Brussels IIa Regulation does not survive beyond the proceedings for which it was agreed. Accordingly, Article 12(2) provides for three grounds that result in the cessation of jurisdiction based on Article 12(1) for proceedings related to parental responsibility.

If the judgment relating to the application for divorce, legal separation or annulment has obtained legal force (res iudicata), “connected” proceedings are no longer possible. For this reason, pursuant to Article 12(1)(a) Brussels IIa Regulation, the jurisdiction of the court having jurisdiction under Article 3 for matrimonial matters ceases also in matters of parental responsibility. It is irrelevant in this case whether the application in the matrimonial matter has been granted or refused. The “end” of jurisdiction does not mean, however, that proceedings relating to parental custody that are pending at the time the judgment on the dissolution of marriage obtains legal force will not be concluded. It merely means that after this point in time, proceedings relating to parental responsibility may no longer be instituted, as provided for under Article 12(1), with the court having jurisdiction in the matrimonial matter.

If the judgment in the matrimonial matter obtains legal force before there is a judgment in the pending proceedings relating to parental responsibility, the jurisdiction of the seised court under Article 12(1) Brussels IIa Regulation remains in place until such time as the judgment relating to parental responsibility obtains legal force.

Finally, jurisdiction under Article 12(1) Brussels IIa Regulation ceases pursuant to Article 12(2)(c) also in the event that proceedings referred to in Article 12(2)(a) and (b) cease on other grounds. Such grounds could be, for example, the withdrawal of an application or the death of a spouse/parent.

Jurisdiction agreements under Article 12(3) Brussels IIa Regulation relating to parental responsibility are also possible even if there is no connection to matrimonial proceedings, the aim being to give the parties a certain autonomy also in isolated proceedings relating to parental responsibility. As an exceptional provision, Article 12(3) is to be interpreted narrowly.

Under Article 12(1)(a) Brussels IIa Regulation, there has to be first of all a substantial connection of the child to the Member State whose courts are to be seised. Such a connection is established in particular by the habitual residence of the parents or of one parent or otherwise of a holder of parental responsibility (Article 2(8)) or by means of the nationality of the child. On the other hand, the nationality of the child alone does not establish a substantial connection to its State of origin in all cases, in particular if the focus of the life of the child has been in another State for years.

Furthermore, jurisdiction has to be accepted expressly or otherwise in an unequivocal manner by all parties involved in the proceedings, but not by holders of parental responsibility who are not involved in such proceedings. Such acceptance requires as a minimum that the respondent is aware of the proceedings instituted. This is not the case if the document which institutes proceedings has not been served on the respondent (e.g. due to his unknown whereabouts), even if the legal representative who has been appointed by the court for the absent respondent did not object to the lack of jurisdiction. Therefore, the jurisdiction of the court seised by one of the parties is not accepted within the meaning of Article 12(3) Brussels IIa Regulation expressly or otherwise in an unequivocal manner where the respondent in those first proceedings subsequently brings a second set of proceedings before the same court and, on taking the first step required of him in the first proceedings, pleads the lack of jurisdiction of that court.

Furthermore, any jurisdiction agreement concluded by the holders of parental responsibility that deviates from the jurisdiction provided for in Article 8(1) Brussels IIa Regulation has to be in accordance with the best interests of the child. If the child has its habitual residence in another Member State of the Regulation, the question as to whether the jurisdiction of the courts of another Member State is in the best interests of the child must be closely scrutinised. This applies in particular if jurisdiction is based only on the nationality of the child. However, jurisdiction of the court at the place of residence of one parent of the child may also be established under Article 12(3) if an extended period of time has already lapsed in which the child has been continuously habitually resident in a Member State other than that of its parents. In the case of proceedings relating to parental responsibility, the jurisdiction of a court of a Member State which is not that of the child’s habitual residence, may also be established under Article 12(3) where no other proceedings have been instituted before the chosen court.

When the parties are accepting jurisdiction, generally the point in time when the court is seised is to be taken into consideration, as is the case under Article 12(1)(b) Brussels IIa Regulation. For this reason, a pre-trial jurisdiction agreement under Article 12(3) is not sufficient if one of the parties no longer accepts the jurisdiction of the seised court at the time of institution of the proceedings.

The jurisdiction relating to parental responsibility of a seised court of a Member State, mutually agreed under Article 12(3) Brussels IIa Regulation by the holders of parental responsibility, ceases on delivery of a final judgment in the proceedings. Therefore, the jurisdiction of the chosen court may only be agreed in each case for the specific proceedings relating to parental responsibility.

International jurisdiction under Article 12 Brussels IIa Regulation is also established if the child is habitually resident in a State that is neither a Member State of the Brussels IIa Regulation or a Contracting State of the Hague Convention on Parental Responsibility and Protection of Children. In this case, under Article 12(4) there is a presumption that the acceptance of jurisdiction in a Member State is in accordance with the best interests of the child both under Article 12(1) and (3), if the execution of the proceedings proves to be impossible in the third State.