The lis pendens principle – Article 19(2)
A court is seised under Article 16:
- At the time when the document instituting proceedings is lodged at the court and the applicant has taken steps to have service effected on the respondent or
- 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.
In some circumstances, more than one court in more than one jurisdiction will be seised of the same proceedings. Article 19(2) regulates what happens in this situation using the lis pendens principle.
Article 19(2) – where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
- Where two courts are seised of the same cause of action in relation to the same child, the court first seised takes priority. The court second seised must stay proceedings while the court first seised considers whether it has jurisdiction to hear the case.
o It must be determined whether the two cases concern the same cause of action in relation to the same child. If the cases concern two different causes of action, the two separate causes of action may be heard in separate courts if they both have jurisdiction.
- If the court first seised has jurisdiction under Brussels IIbis, it will hear the substantive issues of parental responsibility and issue judgment. The court second seised will decline to hear the case.
- If the court first seised does not have jurisdiction under Brussels IIbis, it will decline to hear the case. The court second seised can then revive its proceedings and consider whether it has jurisdiction to hear the case.
Issues for consideration:
1. Is the court first seised, or second seised of the proceedings?
2. Do the cases concern the same child, and the same cause of action?
3. If so, the court first seised takes priority and can determine its own jurisdiction under Brussels IIbis.
2. Do the cases concern the same child, and the same cause of action?
3. If so, the court first seised takes priority and can determine its own jurisdiction under Brussels IIbis.
Back to the case study
Both Marilyn and Jack want custody of Blossom. B remains in The Netherlands. M issues proceedings in Spain under Article 12(3) on the basis of a substantial connection between B and Spain based on her nationality. J issues proceedings in The Netherlands under Article 8 on the basis that B is habitually resident in The Netherlands. M’s action is first in time.
- These are the same proceedings, between the same parties, but in different courts.
- Spanish court was first seised and has the right to examine its own jurisdiction.
- Dutch court must stay proceedings whilst the Spanish court considers whether it has jurisdiction to hear the case.
What is the likely outcome?
- Spanish court will decline jurisdiction if J does not agree to a hearing in Spain under Article 12(3) and if a hearing in Spain is not in B’s best interests. Since B remains in The Netherlands, it is unlikely that a hearing in Spain is in her best interests.
- Dutch court can then revive J’s proceedings and consider whether B is habitually resident in The Netherlands to assume jurisdiction under Article 8.