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The Developing EC Private International Law on Family Matters

Published online by Cambridge University Press:  27 October 2017

Peter Stone
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Extract

The entry into force on 1st March 2001 of Regulation 1347/2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for Children of Both Spouses (‘the Matrimonial Regulation’) amounts to a landmark in the harmonisation of private international law at European Community level. It deals with direct judicial jurisdiction, and the mutual recognition and enforcement of judgments, but not choice of law, in respect of divorce, separation and annulment of marriage, and of custody (in a broad sense) of children of both spouses when determined on the occasion of matrimonial proceedings. It is the first EC measure to enter into force dealing with private international law in family matters, and is likely to be followed up by further such measures, especially in relation to child custody when dealt with independently of any matrimonial proceedings.

Type
Research Article
Information
Cambridge Yearbook of European Legal Studies , Volume 4 , 2001 , pp. 373 - 412
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2001

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References

1 For its text, OJ 2000 L 160/19.

2 For the final version of its text, OJ 1998 C27/1. The Convention was based on the then Art. 220 (now Art. 293) of the EC Treaty.

3 For its text, OJ 2001 L12/1. The Brussels I Regulation entered into force for the 14 Member States other than Denmark on 1st March 2002.

4 Art. 1(2); Case 143/78 De Cavel v. De Cavel (No 1) [1979] ECR 1055; and Case 25/81 CHW v. GJH [1982] ECR 1189.

5 Art. 5(2); Case 120/79 De Cavel v. De Cavel (No 2) [1980] ECR 731; Case C–295/95 Farrell v. Long [1997] ECR I–1683; Case C–220/95 Van den Boogaard v. Laumen [1997] ECR I–1147; and Fournier v. Fournier [1998] 2 FLR 990 (CA).

6 For its text, see OJ 1980 L266. The Rome Convention entered into force on 1 April 1991. It is now in force in all 15 EC Member States. It is not based directly on any provision of the EC Treaty, but on a voluntary decision of the Member States to go beyond the requirements of Art. 220.

7 Art. 1(2)(a)–(b).

8 Paras (24)–(25) of the Preamble, and Arts. 1(3) and 46. For this purpose the United Kingdom includes Gibraltar; see Annexes I and II. Provisions ancillary to the Regulation have been made in England by the European Communities (Matrimonial Jurisdiction and Judgments) Regulations 2001 (SI 2001/310), which amends the Domicile and Matrimonial Proceedings Act 1973, the Child Abduction and Custody Act 1985, and the Family Law Act 1986; and in Scotland by the European Communities (Matrimonial Jurisdiction and Judgments) (Scotland) Regulations 2001 (SSI 2001/36).

9 For its text, OJ 1998 C221/1.

10 For the Borrás Report, see OJ 1998 C221/27.

11 The Hague Convention 1970 is in force in eight of the EC Member States (the United Kingdom, Italy, the Netherlands, Luxembourg, Portugal, Denmark, Finland and Sweden) and nine other countries (Norway, Switzerland, Poland, the Czech Republic, the Slovak Republic, Cyprus, Australia, Hong Kong, and Egypt).

12 For its text, OJ 2000 C234/7.

13 OJ 2001 C12/1.

14 Doc JAI A3 / EK - 787, version 5.

15 For its text, OJ 2001 C332E/269.

16 For its text, COM(2001) 680 final.

17 For the text of the Convention, (1996) 35 ILM 1391. It entered into force on 1 January 2002 between the Czech Republic, Slovakia and Monaco.

18 EC Council doc 14461/01, JUSTCIV 151, of 30 December 2001.

19 Doc COM(2002) 222 final, of 3 May 2002.

20 Art. 71. For transitional provisions, see Art. 63.

21 See the Borrás Report, above n 10 at para 27. In that case in England reg 3(5) of SI 2001/310 amends s 5(3) of the Domicile and Matrimonial Proceedings Act 1973 so that English jurisdiction exists if the surviving spouse is domiciled in England at the commencement of the proceedings, or the deceased spouse either was at death domiciled in England or had been habitually resident in England throughout the one year up to his death, but puzzlingly the habitual residence of the surviving spouse is ignored. See similarly, for Scotland, reg 2(2) of SSI 2001/36, amending s 7 of the 1973 Act.

22 Para 10 of the Preamble; and the Borrás Report above n 10, at para 22.

23 Para 9 of the Preamble; and the Borrás Report ibid, at para 20.

24 Namely: the Hague Conventions of 1961 on the protection of minors, of 1970 on the recognition of divorces and separations, and of 1996 on parental responsibility and child protection, and the European Convention of 1980 on recognition and enforcement of custody decisions. See also in England SI 2001/310, regs 5 and 9, amending British legislation implementing the Hague Convention 1970 and the European Convention 1980; and in Scotland SSI 2001/36, regs 3 and 4.

25 Chapter II, Section 1 (Arts. 5–9) of the Combined Proposal echoes Arts. 2 and 5–8 of the Matrimonial Regulation; and Chapter II, Section 3 (Arts. 16–20) contains provisions echoing Arts. 9–12.

26 Arts. 2(1)(a)(vi), 2(1)(b) and 2(2).

27 Art. 2(1)(a)(i) and (iii).

28 Art. 2(1)(a)(iv).

29 Art. 2(1)(a)(ii).

30 Art. 2(1)(a)(v).

31 Art. 2(1)(a)(vi).

32 Above n 10 at para 33.

33 Stone, P. The Conflict of Laws (London, Longman, 1995) ch. 2Google Scholar.

34 Art. 41 is echoed by Art. 64 of the Combined Proposal.

35 SI 2001/310 and SSI 2001/36.

36 They provide as follows:

‘Article 7—Exclusive nature of jurisdiction under Articles 2 to 6

A spouse who:

  1. (a)

    (a) is habitually resident in the territory of a Member State; or

  2. (b)

    (b) is a national of a Member State, or, in the case of the United Kingdom and Ireland, has his or her “domicile” in the territory of one of the latter Member States,

may be sued in another Member State only in accordance with Articles 2 to 6.

Article 8—Residual jurisdiction

  1. 1.

    1. Where no court of a Member State has jurisdiction pursuant to Articles 2 to 6, jurisdiction shall be determined, in each Member State, by the laws of that State.

  2. 2.

    2. As against a respondent who is not habitually resident and is not either a national of a Member State or, in the case of the United Kingdom and Ireland, does not have his “domicile” within the territory of one of the latter Member States, any national of a Member State who is habitually resident within the territory of another Member State may, like the nationals of that State, avail himself of the rules of jurisdiction applicable in that State.’

37 On existing bases in various Member States, which may be retained under Arts. 7 and 8, see the Borrás Report above n 10 at para 47.

38 Above n 10 at paras 52–57.

39 Under the Brussels I Convention the European Court has confined Art. 24 to measures relating to specific assets of the defendant located or to be located within the territory of the forum State. See Case C–391/95 Van Uden v. Deco-Line [1998] ECR I–7091, and Case C–99/96 Mietz v. Intership Yachting Sneek [1999] ECR I–2277.

40 Above n 10 at para 59.

41 Case 143/78 De Cavel v. De Cavel (No 1) [1979] ECR 1055; Case 120/79 De Cavel v. De Cavel (No 2) [1980] ECR 731; and Case 25/81 CHW v. GJH [1982] ECR 1189.

42 Arts. 1(1)(a) and 13(1).

43 Art. 13(2). Chapter III also provides for the recognition and enforcement of orders relating to the parental responsibility for the children of both spouses, given on the occasion of matrimonial proceedings; see Arts. 1(1)(b) and 13(1).

44 Borrás Report above n 10, at para 60.

45 Para 10 of the Preamble; and the Borrás Report above n 10, at para 64.

46 See also Art. 19, which echoes Art. 30 of the Brussels I Convention, on staying proceedings in which recognition is sought if an ordinary appeal against the judgment has been lodged in the State of origin

47 The Matrimonial Regulation omits any provision corresponding to Art. 46(2) of the Matrimonial Convention, which allowed Ireland to make a special reservation against the recognition of divorces obtained in other Member States as a result of one or both of the spouses deliberately misleading the original court in relation to jurisdictional requirements.

48 Art. 42(2).

49 Art. 36(2).

50 See the Explanatory Memorandum to the Combined Proposal, above n 19 at 14.

51 The Matrimonial Regulation, like the Brussels I Regulation, contains no specific provision concerning incidental questions, corresponding to Art. 27(4) of the Brussels I Convention.

52 Above n 10 at para 76.

53 Borrás Report above n 10, at para 70.

54 Ibid. at para 71.

55 This provision is reflected in the United Kingdom by s 50 of the Family Law Act 1986.

56 See the EP Resolution of 30th April 1998; doc A4–131/98.

57 Art. 17(2) of the March 2000 version of the Commission proposal; doc COM(2000)151final.

58 Contrast R v. Brentwood Registrar ex parte Arias [1968] 2 QB 956, and Padolecchia v. Padolecchia, [1968] P 314, with Perrini v. Perrini [1979] 2 All ER 323, and Lawrence v. Lawrence [1985] Fam 106.

59 Above n 10 at para 32.

60 Case 76/76 Di Paolo v. Office National de l’Emploi [1977] ECR 315; Case C–102/91 Knoch v. Bundesanstalt für Arbeit [1992] ECR I–4341; and now Case C–90/97 Swaddling v. Adjudication Officer [1999] ECR I–1075.

61 Above n 19 at 9.

62 Stone, P. Civil Jurisdiction and Judgments in Europe (London, Longman, 1998) almost passim Google Scholar.

63 For fuller discussion, Stone P. ‘The Concept of Habitual Residence in Private International Law’ [2000] Anglo-American Law Review 342. For a different approach to the concept, see Rogerson P. ‘Habitual Residence: The New Domicile?’ (2000) 49 ICLQ 86.

64 See Shah v. Barnet LBC [1983] 2 AC 309; Kapur v. Kapur [1984] FLR 920; Re F [1992] 1 FLR 548 (CA); Re M [1993] 1 FLR 495 (CA); Re M [1996] 1 FLR 887 (CA); M v. M [1997] 2 FLR 263 (CA); Nessa v. Chief Adjudication Officer [1999] 1 WLR 1937 (HL); and Ikimi v. Ikimi [2001] 2 FCR 385 (CA).

65 Re J [1990] 2 AC 562. Cf. Nessa v. Chief Adjudication Officer [1999] 1 WLR 1937 (HL).

66 Re A [1988] 1 FLR 365 (CA); Z v. Z [1992] 2 FLR 291; Dickson v. Dickson 1990 SCLR 692 (Inner House); Friedrich v. Friedrich 983 F2d 1396 (C6, 1993); Cameron v. Cameron 1996 SLT 306; Re V [1995] 2 FLR 992; and Hanbury-Brown (1996) 20 Fam LR 334 (Family Court of Australia). Cf Shah v. Barnet LBC [1983] 2 AC 309; and Britto v. Home Secretary [1984] ImmAR 93.

67 Ikimi v. Ikimi [2001] 2 FCR 385.

68 See F v. S [1993] 2 FLR 686 (CA); Re R [1992] 2 FLR 481 (CA); and Re M 10 August 1995 (CA). See also P v. A-N [2000] WL 33148939.

69 Re J [1990] 2 AC 562; and Nessa v. Chief Adjudication Officer [1999] 1 WLR 1937 (HL). Cf. Case C–90/97 Swaddling v. Adjudication Officer [1999] ECR I–1075; Macrae v. Macrae [1949] P 397 (CA); and Molson v. Molson (1998) ACWSJ LEXIS 47658 (Alberta).

70 Shah v. Barnet LBC [1983] 2 AC 309; Re N, [1993] 2 FLR 124 (CA); Ex parte Grant 31st July 1997; Ponath v. Ponath 829 FSupp 363 (1993); D v. D [1996] 1 FLR 574; and Re A [1996] 1 WLR 25.

71 Shah v. Barnet LBC [1983] 2 AC 309; Re J [1990] 2 AC 562; M v. M [1997] 2 FLR 263 (CA); Dickson v. Dickson [1990] SCLR 692 (Inner House); D v. D [1996] 1 FLR 574; Re S [1994] Fam 70; Re A [1996] 1 WLR 25; and Re M 10 August 1995 (CA). See also Hamilton [1989] Ont CJ LEXIS 416; Feder v. Evans-Feder 63 F3d 217 (C3, 1995); and Re PK and CK [1994] 1 IR 250. Cf Rydder v. Rydder, 49 F3d 369 (C8, 1995); Mozes v. Mozes 19 FSupp2d 1108 (1998); and Al H v. F [2001] 1 FCR 385 (CA).

72 See Re J [1990] 2 AC 562; Friedrich v. Friedrich 983 F2d 1396 (C6, 1993); Re M [1996] 1 FLR 887 (CA); F v. S [1993] 2 FLR 686 (CA); Re R [1992] 2 FLR 481 (CA); and Re M 10 August 1995 (CA).

73 Re F [1992] 1 FLR 548 (CA); Nessa v. Chief Adjudication Officer [1999] 1 WLR 1937 (HL); Re B, 24th July 1995 (CA); and Al H v. F [2001] 1 FCR 385 (CA). See also V. v. B [1991] 1 FLR 266; Re B, [1993] 1 FLR 993; A v. A [1993] 2 FLR 225; Cameron v. Cameron [1996] SLT 306 (Inner House); D v. D, [1996] 1 FLR 574; M v. M [1997] 2 FLR 263 (CA); and Re S [1998] AC 750. And see, in the Family Court of Australia, Cooper v. Casey (1995) 18 Fam LR 433, and Casse (1995) 19 Fam LR 474; in the United States, Feder v. Evans-Feder 63 F3d 217 (C3, 1995); and in Canada, Kinnersley-Turner (1996) 140 DLR 4th 678 (Ontario CA).

74 Above n 71.

75 Re P(GE) [1965] 1 Ch 568 (CA); Re J [1990] 2 AC 562; Re F [1992] 1 FLR 548 (CA); Re K, 24th June 1991 (CA). See also Friedrich v. Friedrich 983 F2d 1396 (C6, 1993); Prevot v. Prevot 855 FSupp 915 (1994); Rydder v. Rydder 49 F3d 369 (C8, 1995); Nunez-Escudero v. Tice-Menley 58 F3d 374 (C8, 1995); Feder v. Evans-Feder 63 F3d 217 (C3, 1995); Walton v. Walton 925 FSupp 453 (1996); and Lops v. Lops 140 F3d 927 (C11, 1998).

76 Re P(GE) [1965] 1 Ch 568 at 585 (CA); the Domicile and Matrimonial Proceedings Act 1973, s 3; the Family Law Act 1986, s 41; the Children Act 1989, s 9; and the Abduction Convention, Art. 4. Cf. the Family Law Reform Act 1969, s 1; the Hague Convention 1996, Art. 2; and Hague Convention on Intercountry Adoption (1993), Arts. 3 and 17(c).

77 Re M [1993] 1 FLR 495 (CA); Re B 24 July 1995 (CA); Re M [1996] 1 FLR 887 (CA); Gateshead MBC v. L [1996] Fam 55; and Al H v. F [2001] 1 FCR 385 (CA).

78 Re J [1990] 2 AC 562; Re M [1993] 1 FLR 495 (CA); Rellis v. Hart 1993 SLT 738; and Re M, [1996] 1 FLR 887 (CA).

79 Re P(GE) [1965] 1 Ch 568 (CA); Re F [1992] 1 FLR 548 (CA); Re S [1994] Fam 70; D v. D [1996] 1 FLR 574; Re M [1996] 1 FLR 887 (CA); and s 41 of the Family Law Act 1986. See also Laing, (1996) 21 Fam LR 24 (Family Court of Australia).

80 Re R (No 2) [1993] 1 FLR 249; Re G [1993] 1 WLR 824 (CA); Re S [1995] 1 FLR 314; and Emmett v. Perry (1996) FLC 92–645 (Family Court of Australia).

81 See (on consent for a sufficient period) Re K [1995] 2 FLR 211 (CA); Cameron v. Cameron 1996 SLT 306; Slagenweit v. Slagenweit 841 FSupp 264 (1993); Re S [1991] 2 FLR 1 (CA); Re M [1996] 1 FLR 887 (CA); and Mozes v. Mozes 19 FSupp2d 1108 (1998); and (on consent for an insufficient period): Re P(GE) [1965] 1 Ch 568 (CA); Re A [1988] 1 FLR 365 (CA); Evans v. Evans [1989] 1 FLR 135 (CA); Re A [1991] 2 FLR 241 (CA); P v. A-N [2000] WL 33148939; Hanbury-Brown (1996) 20 Fam LR 334 (Family Court of Australia); Medhurst 1995 Ont CJ LEXIS 3142 (Ontario); and Snetzko 1996 Ont CJ LEXIS 3039 (Ontario).

82 Re S [1998] AC 750; and see Re ES, 20 November 1997 (Irish High Court).

83 Art. 5(2), and Case 120/79 De Cavel v. De Cavel (No 2) [1980] ECR 731.

84 Matrimonial property is among the matters listed for action in the first stage of the draft Programme of Measures for Implementation of the Principle of Mutual Recognition of Decisions in Civil and Commercial Matters, OJ 2000 C12/1.

85 Case 120/79 [1980] ECR 731.

86 Case C–220/95 [1997] ECR I–1147. See also Fournier v. Fournier [1998] 2 FLR 990 (CA).

87 Case 143/78 [1979] ECR 1055. See also Case 25/81 CHW v. GJH [1982] ECR 1189.

88 For this purpose domicile is not used in the traditional English sense, but in a sense fairly similar to habitual residence. See the Brussels I Regulation, Art. 59; the Civil Jurisdiction and Judgments Order 2001 (SI 2001/3929), Sch 1, para 9; Dubai Bank v. Abbas, 17th July 1996 (CA); Daniel v. Foster [1989] SCLR 378; Grupo Torras v. Al-Sabah [1995] 1 Lloyd’s Rep 374; and Petrotrade v. Smith [1998] 2 All ER 346.

89 Case C–295/95 Farrell v. Long, [1997] ECR I–1683, where the European Court ruled that the reference in Art. 5(2) to the maintenance creditor covers anyone applying for maintenance, including a person making a maintenance application for the first time.

90 OJ 1979 C 59/71. See also Gaudemet-Tallon, H. Les Conventions de Bruxelles et de Lugano 2nd edn, (Paris, LGDJ, 1996) at para 182Google Scholar.

91 Also Thurston v. Thurston 28th October 1997 (CA).

92 Case 145/86: Hoffmann v. Krieg [1988] ECR 645; the Jenard Report, OJ 1979 C 59/1 at 43; Re the Enforcement of a Swiss Maintenance Agreement [1988] ECC 181 at 187 (German Supreme Court); and 28 US Code (1964), s 1738. Cf. the Schlosser Report, above n 90 at 127–28; and Hart v. American Airlines, 304 NYS2d 810 (1969).

93 Heron v. Heron 703 NE2d 712 (1998), where a Massachusetts court held that the full-faith-and-credit clause of the US Constitution prevented it from modifying a Nevada maintenance order insofar as it was unmodifiable (as regards arrears) under Nevada law.

94 Case 145/86 [1988] ECR 645.

95 Macaulay v. Macaulay [1991] 1 WLR 179; and Ex parte Emmett [1993] 2 FLR 663.

96 Arts. 1(1)(b) and 13(1).

97 Para 11 of the Preamble; and the Borrás Report, above n 10 at paras 23 and 37.

98 Above n 17.

99 Borrás Report, above n 10 at para 25.

100 For its text, OJ 2001 C 332E/269.

101 COM(2002) 222 final.

102 On the Access Initiative, see above n 12.

103 Art. 71. For transitional provisions, Art. 63.

104 The intention is to exclude both criminal proceedings and subsequent civil measures of protection, such as the placement of the child in an institution. See the Explanatory Memorandum, above n 19 at 6.

105 Specifically: the Hague Convention of 5 October 1961 concerning the Powers of Authorities and the Law Applicable in respect of the Protection of Minors; the Luxembourg Convention of 8 September 1967 on the Recognition of Decisions Relating to the Validity of Marriages; the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations; the European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children; the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction; and the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children.

106 Explanatory Memorandum to the Combined Proposal, above n 19 at 8.

107 Borrás Report, above n 10 at para 39.

108 Ibid. at para 39.

109 Abduction cases are discussed below text nn 116 to 129.

110 Cf. Art. 37, giving the Regulation precedence over the Hague Convention 1996 ‘provided that the child concerned is habitually resident in a Member State.’

111 Above n 15 at 7.

112 Above n 15 at 9.

113 Ibid.

114 COM(2001) 680 final.

115 Above n 19 at 11.

116 In the United Kingdom the Abduction Convention is given effect by Part I of the Child Abduction and Custody Act 1985.

117 The reference to the law of the child’s habitual residence extends to its conflict rules, rather than being limited to its internal law. See the Perez-Vera Report, in 3 Actes et Documents de la Quatorzième Session 426 at 445–46 (1982); and Feder v. Evans-Feder 63 F3d 217 (C3, 1995).

118 Re H [1991] 2 AC 476.

119 Re S [1998] AC 750.

120 Re C [1989] 1 FLR 403.

121 S v. H [1998] Fam 49.

122 Re H [2000] 2 AC 291, and B v. B [1993] Fam 32 (CA).

123 Re B [1994] 2 FLR 249 (CA), involving an unmarried father; and Re O [1997] 2 FLR 702, involving grandparents. Cf. Re S [1998] AC 750.

124 Friedrich v. Friedrich (No 2) 78 F3d 1060 (C6, 1996).

125 Re W [1995] 1 FLR 878, where Wall J held that prior consent cannot be passive; there must be clear and compelling evidence of a positive consent to the removal of the child from the country of his habitual residence. And Re B [1994] 2 FLR 249 (CA), holding that a consent obtained by deliberate deception will be ignored.

126 Re H [1998] AC 72, where Lord Browne-Wilkinson emphasised that subsequence acquiescence normally requires a real subjective consent by the wronged parent to the removal of the child, and an intention to acquiesce should not normally be inferred from attempts by the wronged parent to effect a reconciliation or to reach an agreed voluntary return of the abducted child. By way of exception, there is acquiescence where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are wholly inconsistent with such return. For example, where the wronged parent signs a formal agreement that the child is to remain in the country to which he has been abducted; or takes an active part in proceedings in the country to which the child has been abducted to determine the long-term future of the child. See also Re AZ [1993] 1 FLR 682 (CA); Re S [1994] 1 FLR 819 (CA); Re R [1995] 1 FLR 716 (CA); and Friedrich v. Friedrich (No 2) 78 F3d 1060 (C6, 1996).

127 For refusal based on grave risk, Re F [1995] 3 All ER 641 (CA), where the risk arose from the applicant father’s violence; and Re G [1995] 1 FLR 64, where the children were very young and it was feared that the mother’s return with them might push her existing depression into psychosis. See also Friedrich v. Friedrich (No 2) 78 F3d 1060 (C6, 1996).

128 S v. S [1993] 2 WLR 775 (CA), and Re R [1995] 1 FLR 716 (CA).

129 R v. R [1995] Fam 209 (CA).

130 Arts. 1(1)(b) and 13(1).

131 Art. 13(2).

132 Art. 13(3); and the Borrás Report, above n 10 at para 61.

133 Ibid. at para 78.

134 Art. 42(2).

135 Art. 36(2).

136 Art. 16.

137 Above n 10 at para 78. See also Art. 23(2)(e) of the Hague Convention 1996, and the views of the House of Lords Select Committee on the European Communities, 5th Report at paras 41 –44.

138 Borrás Report (1997), above n 10 at para 73.

139 Art. 45(2).