¹ OJ 2003 L 338/1.Google Scholar

² This is the date on which the core of the new Regulation becomes directly applicable, see Art 72(2). The Regulation enters into force on 1 Aug 2004, but only Arts 67–70 apply from this date. These Articles deal with operational matters such as: information on central authorities, information relating to courts and redress procedures, amendments to standard forms and the existence of a committee to assist the Commission in monitoring the instrument.Google Scholar

³ Cf The Explanatory Report on the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters, prepared by A Borrás, OJ 1998 C221/27, at para 25 [hereinafter: Borrás Report].Google Scholar

⁴ McEleavy, P ‘The Brussels II Regulation: How the European Community has Moved into Family Law’ [2002] ICLQ 883–908.CrossRefGoogle ScholarSee also McEleavy, ‘First Steps in the Communitarisation of Family Law: Too Much Haste, Too Little Reflection?’, in Boele-Woelki, K(ed) Perspectives For the Unification or Harmonisation of Family Law in Europe (AntwerpIntersentia 2003) 509.Google ScholarJäntera-Järeborg, M ‘Unification of International Family Law in Europe—a Critical Perspective’ in Boele-Woelki, op cit, at 194.Google Scholar

⁵ One can legitimately ask why certain matters relating to parental responsibility were ever incorporated into the Brussels II Convention in the first instance, see McEleavy ‘The Brussels II Regulation’ (n 4 at 892).Google Scholar

⁶ For the habitual residence requirement see Art 3.Google Scholar

⁷ It is for national law to determine what civil proceedings relating to parental responsibility will include.Google Scholar

⁸ The Regulation will apply to adopted children of both spouses but not as regards a child adopted by only one of the parties; see Borrás Report (n 3) para 25.Google Scholar

⁹ The traditional terms still prevail in private international law, rather than the modern alternatives, residence and contact.Google Scholar

¹⁰ As implemented by the Child Abduction and Custody Act 1985. The other thirteen Member States to which the Regulation applies have all ratified the 1980 Convention.Google Scholar

¹¹ The United Kingdom government did attempt to have the scope of Brussels II extended to cover ‘children of the family’ but this was rejected by a significant number of other States under whose laws separate rules existed in respect of step-children; oral evidence of Oliver Parker to the House of Lords' Select Committee; Report of the House of Lords Select Committee on the European Communities ‘Brussels II: The Draft Convention on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters’ HL Paper 19, Session 1997–8, q 169. This limitation is recognized in the Borras Report (n 3) para 25.Google Scholar

¹² Member States were not free to ratify the Convention on an individual basis, there being an overlap in the subject matter of the latter instrument and the Brussels II Regulation. If the Convention were to be ratified by EC Member States permission had to be granted by the Council, see generally on the issue of external competence: Case 22/70 Commission v Council (ERTA) [1971] ECR263.Google Scholar

¹³ As part of the political compromise reached on 29 Nov 2002 with regard to the treatment of child abduction cases (see J-P Stroobants ‘Les Quinze Adoptent une Unification du Droit Familial Pour les Enfants Binationaux’ Le Monde 1 Dec 2002), it was agreed that EC Member States would be permitted to sign the 1996 Convention, see OJ 2003 L48/1 (this occurred on 1 Apr 2003, see <http://www.hcch.net/e/status/proshte.html>). Where a matter falls within the scope of both instruments Art 61 of Brussels II bis makes clear that the Regulation will apply where a child is habitually resident in a Member State or where a judgment made in one Member State is to be recognized in another, even if the child concerned is habitually resident in a third State which is party to the Convention.).+Where+a+matter+falls+within+the+scope+of+both+instruments+Art+61+of+Brussels+II+bis+makes+clear+that+the+Regulation+will+apply+where+a+child+is+habitually+resident+in+a+Member+State+or+where+a+judgment+made+in+one+Member+State+is+to+be+recognized+in+another,+even+if+the+child+concerned+is+habitually+resident+in+a+third+State+which+is+party+to+the+Convention.>Google Scholar

¹⁴ See Conclusions 33 and 34 of the European Council Meeting at Tampere, 15 and 16 Oct 1999, <http://www.europa.eu.int/comm/justice_home/doc_centre/civil/recognition/doc_civil_recognitiongeneralen.htm>..>Google Scholar

¹⁵ The new Art 2 provides a list of eleven definitions of core concepts employed within the Regulation.Google Scholar

¹⁶ Ex Art 3.Google Scholar

¹⁷ Ex Art 4.Google Scholar

¹⁸ Art 19(1), ex Art 11(1) and (2).Google Scholar

¹⁹ See McEleavy, ‘The Communitarization of Divorce Rules: What Impact for English and Scottish Law?’ (forthcoming).Google Scholar

²⁰ Borrás Report (n 3) para 59.Google Scholar

²¹ Art l(2)(e).Google Scholar

²² See McEleavy, ‘The Communitarisation of Divorce Rules’ (forthcoming).Google Scholar

²³ Para 9 of the Recital stresses that any measures relating to a child's property which do not concern the protection of the child should be governed by the Brussels I Regulation.Google Scholar

²⁴ Cf Art 3, 1996 Hague Convention.Google Scholar

²⁵ Cf Art 1(2), 1996 Hague Convention.Google Scholar

²⁶ Art 8.Google Scholar

²⁷ Art 12(1). The more permissive formulation of Art 3(1) of Brussels II, where the child is habitually resident in the State with jurisdiction over the matrimonial proceedings has been removed. Moreover the formulation adopted in 12(1) represents a further tightening of the ex Art 3(2) by requiring the acceptance of the jurisdiction by the any holders of parental responsibility as well as of the spouses. This reflects the fact that the material scope of new Regulation is not limited to children of both spouses.Google Scholar

²⁸ Art 12(3)(a) suggests that this may be by virtue of the child being a national of that Member State or that one of the holders of parental responsibility is habitually resident in that Member State.Google Scholar

²⁹ Art 12(3).Google Scholar

³⁰ Art 13Google Scholar

³¹ Cf the position adopted in England and Wales and Scotland with regard to the matrimonial rules in Brussels II, considered in McEleavy ‘The Communitarization of Divorce Rules’ (forthcoming).Google Scholar

³² Art 12.Google Scholar

³³ Art 10.Google Scholar

³⁴ Art 9.Google Scholar

³⁵ It is not clear if the 3-month period is absolute or if proceedings commenced before the deadline may be continued until completed.Google Scholar

³⁶ Cf Re s (Residence Order: Forum Conveniens) [1995] 1 FLR 314.Google Scholar

³⁷ Case C90/97 [1999] ECR 1–1075. The Court ruled, in the context of entitlement for social security, that length of residence was not an intrinsic element of the concept habitual residence.Google Scholar

³⁸ This is because children would be connected to a jurisdiction with which they had no real and meaningful connection.Google Scholar

³⁹ Nessa v Chief Adjudication Officer [1999] 4 All ER 677, at 682.Google Scholar

⁴⁰ In such a situation the existing habitual residence will be lost upon departure, see Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562.Google Scholar

⁴¹ Art 13. If the holder of access right has participated in such proceedings, other than to contest jurisdiction, then the continuing jurisdiction of the previous State of habitual residence will be de-activated, Art 9(2).Google Scholar

⁴² Art 41, discussed below, at 511.Google Scholar

⁴³ Art 13.Google Scholar

⁴⁴ Art 14.Google Scholar

⁴⁵ Art 15.Google Scholar

⁴⁶ In 1999 statistics for fourteen of the fifteen EC Member States (there are no figures for Greece) revealed that there were 295 admissible incoming Hague Convention applications of which fifty-one (17.3 per cent) led to a non-return order being made on the basis of one of the exceptions. The data is derived from Lowe, N, Armstrong, S, and Mathias, A ‘A Statistical Analysis of Applications made in 1999 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction’ (Prel Doc No 3 of Mar 2001 for the attention of the Special Commission of March 2001), revised Nov 2001.Google Scholar

⁴⁷ In addition to Art 11, discussed below, reference should also be made to Art 10 which introduces very strict conditions as to where there will be a transfer of jurisdiction from a child's State of habitual residence after a wrongful removal or retention, cf Art 7 1996 Hague Convention.Google Scholar

⁴⁸ Art 11(2). Cf Art 13(2) 1980 Hague Convention.Google Scholar

⁴⁹ Art 11(3). Cf Art 11 1980 Hague Convention.Google Scholar

⁵⁰ Art 11(4). See, eg, Re H (Children) (Abduction) [2003] All ER (D) 308, [2003] EWCA Civ 355.Google Scholar

⁵¹ Art 11(5).Google Scholar

⁵² Cf exceptions in Arts 12(2) and 20, 1980 Hague Convention.Google Scholar

⁵³ Art 11(6).Google Scholar

⁵⁴ Art 11(7).Google Scholar

⁵⁵ Art 11(8).Google Scholar

⁵⁶ Art 42.Google Scholar

⁵⁷ Somewhat ironically this is reiterated in para 21 of the Recital.Google Scholar

⁵⁸ See Explanatory Report of the Convention on the Civil Aspects of International Child Abduction, E Pérez-Vera Actes et Documents of the XlVth Session, Volume III, 1982, 426, at 434, para 34.Google Scholar

⁵⁹ Art 13(2) Hague Convention.Google Scholar

⁶⁰ Art 13(l)(a), Hague Convention.Google Scholar

⁶¹ Art 15(1).Google Scholar

⁶² Art 23.Google Scholar

⁶³ Art 23 (g).Google Scholar

⁶⁴ Art 56. This is one of the provisions of Chapter IV which has put in place a central authority network to ensure cooperation between Member States and courts as well as for holders of parental responsibility.Google Scholar

⁶⁵ See Art 41(1)—rights of access, Art 42(1)—return orders.Google Scholar

⁶⁶ See Arts 41(2) and 42(2).Google Scholar

⁶⁷ Art42(2)(c).Google Scholar

⁶⁸ Art 47(1).Google Scholar

⁶⁹ See Re B (Children) (Abduction: New Evidence) [2001] 2 FCR 531 and the subsequent report in The Times, 18 May 2001.Google Scholar