Special grounds of jurisdiction - Article 12(3)
Jurisdiction with a Substantial Connection to the Child
Article 12(3) – The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in Article 12(1) where:
(a) the child has a substantial connection by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State; and
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.
- Article 12(3) provides flexibility in cases where the child has a connection to more than one State but it is an exception to Article 8, where jurisdiction is based on the child’s habitual residence. Normally, the court of the child’s habitual residence is the most appropriate court to hear the case.
- The requirements for Article 12(3) are cumulative and must all be demonstrated before jurisdiction may be assumed. They will be strictly interpreted because Article 12(3) is an exception to Article 8.
Requirements:
1. A substantial connection to a State other than the State of the child’s habitual residence: either a holder of parental
responsibility is habitually resident in that State or the child is a national of that State
2. All parties accept the jurisdiction of the alternative court
3. Alternative court hearing the case is in the best interests of the child
responsibility is habitually resident in that State or the child is a national of that State
2. All parties accept the jurisdiction of the alternative court
3. Alternative court hearing the case is in the best interests of the child
- Requirement (1) may be quite easily demonstrated if parents and children are in different Member States
- Requirement (3) – the important question is the child’s best interests.
o Hearing the case in the court of the child’s habitual residence under Article 8 is normally assumed to be in the child’s best interests because the majority of the information about the child’s welfare and relationships are likely to be in that court and litigation in that State is likely to cause the least disruption to the child’s life.
o There must be a clear welfare justification for the use of Article 12(3).
o There must be a clear welfare justification for the use of Article 12(3).