Special grounds of jurisdiction - Article 12(1)
Hearing a Parental Responsibility Dispute alongside a Divorce
Article 12(1) – The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce... shall have jurisdiction in any matter relating to parental responsibility relating to that application where:
(a) at least one of the spouses had parental responsibility in relation to the child; and
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spousesand by the holders of parental responsibility, at the time the court is seised and it is in the superior interests of
the child.
- Article 12(1) links divorce jurisdiction, which is governed by Article 3 Brussels IIbis, to jurisdiction over associated parental responsibility disputes. This is a sensible provision permitting both the divorce and decisions about the future arrangements between the spouses regarding any children will be heard in the same court.
- Article 12(1) is not restricted to children of the marriage, where both parents will have parental responsibility, but covers the situation where only one parent may have parental responsibility e.g. step-children from a former
marriage.
Back to the case study
Jack and Marilyn’s marriage has broken down. M has issued divorce proceedings in Spain and plans to return to live in Spain. J wants to remain in The Netherlands where his work is based. Both M and J want custody of Blossom.
B is habitually resident in The Netherlands under Article 8. M successfully seises the Spanish court of divorce proceedings and argues that any custody proceedings should also be heard in Spain. J wants the custody dispute to be heard in The Netherlands under Article 8.
Question: What is required under Article 12(1) for the proceedings in relation to parental responsibility to be heard in the Spanish court, alongside the divorce proceedings between M and J? (choose)
Both M and J must hold parental responsibility over B and J needs to agree to a hearing in Spain
Both M and J must agree to a hearing in the Spanish court and a hearing in Spain would be in the superior interests of the child
J must hold parental responsibility over B and the hearing in Spain must be in the superior interests of the child