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Prof Nigel Lowe: The Current Experiences and Difficulties of Applying Brussels II Revised

Date:12 DEC 2007

Nigel Lowe Professor of Law and Director of the Centre for International Family Law Studies, Cardiff Law School, Cardiff University

This article is based on a paper presented to the Anglophone/Francophone Family Law Conference, Edinburgh, June 2007.

At the inaugural Anglophone-Francophone Judicial Family Law Conference held in June 2001 at Dartington, I presented a paper outlining the various new Conventions governing child law, expressing general concern at the proliferation of international instruments. I was particularly critical of the then unrevised Brussels II Regulation and was not altogether sure about the French proposal to amend it on access. Since then, following a battle royal, a revised Regulation was agreed upon and has been in force since March 2005. Although I still hold to the view that, so far as child abduction is concerned it would have been preferable if the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention) had been so amended if only to avoid the complication of one rule applying within Member States (except Denmark) and another to non-exclusive EU abduction cases, I want to begin on a positive note by saying that I think the new instrument (Brussels II Revised) is broadly a good one and by acknowledging that had reforms been left to the Hague Conference, no changes would have been made.

That said, there are two clouds on the horizon. First, Rome III (ie the Proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters) which may become, as I understand it, Brussels II ter, to which (because of opt outs) the UK and Ireland will not be parties. This will mean that while as between Member States other than the UK, Ireland and Denmark, divorce jurisdiction, for example, will be governed by Brussels II ter, but when the UK or Ireland are involved, divorce jurisdiction will be governed by Brussels II Revised. Furthermore, though the rules will be identical, technically Brussels II ter will apply, inter alia, to child abduction cases arising between Member States other than the UK, Ireland and Denmark, but when the UK or Ireland are involved, Brussels II Revised will apply, and when involving Denmark the Hague Convention (without the Brussels II Revised supplements) will apply. If one of the States involved is an EU Member State but the other is not, then the Hague Convention (without the Brussels II Revised supplements) or possibly the European Convention on the Recognition and Enforcement of Decisions Concerning Custody of Children and on the Restoration of Custody of Children 1980 may be applicable, depending upon respective ratifications or accessions. Finally, its own domestic law will apply in any EU State to an application for return of a child after abduction from a State that is not a party to any of the above-mentioned instruments. Hardly simple. Surely it would be better to de-couple the provisions dealing with matrimonial cases from those dealing with parental responsibilities?

The second cloud is the European Court of Justice (ECJ). One advantage of a Regulation is that it provides a good route to internationally uniform interpretation (at any rate among EU Member States). However, Brussels II Revised references to the ECJ being governed by Art 68 (EC) rather than Art 234 (EC) can only be made by a 'final court' (ie the House of Lords in the case of the UK). This in turn means that there are likely to be few references (though in fact two are currently pending), which is a serious impediment to the development of uniform law. But even if that problem is solved (and there is apparently some consideration being given to relaxing the Art 68 procedure for Brussels II Revised), there is an urgent need for a revised and expedited procedure (akin to that provided for by Art 104a of the Court Rules of Procedure (2000)) which needs to be adapted to the needs of family law cases and preferably before a specialist Family Panel.

For the full article, see November [2007] International Family Law.

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