Special grounds of jurisdiction – Article 9
Article 8 is the most important ground of jurisdiction, the court of the child’s habitual residence is normally the most appropriate to hear any dispute in relation to the child. In some circumstances, it may be appropriate to seise a different court.
- Article 8(2) – Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12.
- Article 10 – jurisdiction relating to international child abduction (see E-learning course, Thematic Unit 1, Part 2)
Dispute over Access to Children who have Relocated
Article 9(1) – Where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the court of the Member State of the child’s former habitual residence shall, by way of exception to Article 8, retain jurisdiction during a three-month period following the move for the purpose of modifying a judgment on access rights, issued before the child moved, where the holder of access rights pursuant to the judgment on access rights continues to have his or her habitual residence in the Member State of the child’s former habitual residence.
- Limited exception to Article 8 where a child moves lawfully between Member States.
- Article 9 permits access rights to be adjusted in the child’s former habitual residence to ensure ongoing contact between the child and their parent, even though child’s habitual residence has changed.
- Attempts to ensure that access rights are amended in the former habitual residence so that arrangements are in place as soon as the child relocates to another Member State.
- It only applies to the lawful movement of children between Member States.
Back to the case study
The Dutch courts award Marilyn rights of custody over Blossom whilst Jack has rights of access. J has B to stay with him every weekend. M subsequently seeks permission from the Dutch court to relocate with B to Spain and M and B move to Spain.
- B moves to Spain with the permission of the Dutch court – lawful move
- B must now be habitually resident in Spain
- Dutch court retains jurisdiction for three months (B’s former habitual residence)
- J can modify his judgment on access rights in the Dutch court since J is still habitually resident in The Netherlands