Introduction
Background
Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial
matters and the matters of parental responsibility, repealing Regulation 1347/2000 OJ [2003] L 338/1; known as Brussels II Revised or Brussels IIbis
- Free movement of citizens within Europe has encouraged the creation of ‘international’ families, where the parents are of different nationalities or live in a country other than that of their nationality. Where family disputes arise, particularly in relation to children, this can cause uncertainty about which country the case should be heard in and the cross-border effect of any judgment.
- The Regulation covers jurisdiction over parental responsibility disputes, i.e. identifying which Member State’s courts should hear the case, and the recognition and enforcement of any subsequent judgments within the EU, i.e. giving legal effect to judgments outside the Member State that issued the judgment.
- Once a court has jurisdiction over a dispute under Brussels IIbis, the resolution of the dispute and the substantive law applied, decisions about the child’s welfare and the order to be made are decided under the family law of the Member State. EU law identifies which court has jurisdiction and ensures that the judgment will be recognised and enforced in other Member States. It does not affect the substantive family law of the Member States.
- Brussels IIbis creates a regime to protect children in disputes throughout the EU
o Overarching protections provided by Article 24 Charter of Fundamental Rights of the European Union and the protection of children’s right to be heard; to have decisions made in their best interests and to have contact with both parents included in the Regulation
o The child should never be left without a court to protect their interests
o EU law should work alongside substantive national law on family disputes
o National courts should work together across borders to protect children
- Brussels IIbis uses the principles of mutual trust and mutual recognition of judgments underlying the
Regulation to ensure its smooth operation:
o Harmonise jurisdiction to ensure judgments are recognised throughout the EU
o International family disputes should be resolved in appropriate forum for protection of child’s rights
and interests and recognised and enforced in all other Member States
- Brussels IIbis takes precedence over other international instruments