DETERMINATION OF JURISDICTION OF PARENTAL RESPONSIBILITY

INTRODUCTION

With the changing world, the enhanced mobility of persons and goods makes recourse to private international law a more and more pressing need. The approach to problems concerning jurisdictional competence, conflicts of laws, recognition and enforcement of judgements, international legal assistance is by now clearly influenced by principles relating to human rights, which are undeniably shaping the interpretation of private international law. Not unexpectedly, the matter of determination of jurisdiction of parental responsibility also falls under this. ‘Parental responsibility’ is a multi-faceted legal concept which may not always be congruent with analogous legal concepts at the national level of the Member States or third states.

The rules regarding jurisdiction in matters of parental responsibility are laid down in Chapter II (Jurisdiction) Section 2 (Parental responsibility), Articles 8-15 of the Regulation of Hague Convention. The rule provided in Article 8(1), takes habitual residence as key to regulate the jurisdiction whereas Article 9 provides for the continuation of the jurisdiction of the courts of the state where child had his/her former habitual residence, but only in matters of modifying access rights and only for three months following the move. Further, Article 12 deals with the jurisdiction which is based on prorogation of jurisdiction. This deals with the possibility of jurisdiction to be attributed with the courts other than the courts of the state where the child has his/her habitual residence. Article 13 provided for the jurisdiction based on the child’s mere presence within the a member state, and Article 14 provides the rule regarding residual jurisdiction in case no court of a member state can be seized to rest of the above article. Lastly, Article 15 allows by way of exception, for the competent court to transfer the case to a court of another member state if this court is better placed to the case.

Habitual residence of the child as key concept in the Regulation.

In the framework of the Regulation and under its Article 8 habitual residence of the child is the general tenet around which the system of jurisdictional competence in matters of parental responsibility revolves. The general ground of the jurisdiction contained in Art. 8 are focused on the central role of the habitual residence of the child, which is instrumental in ensuring the proximity between the cases and competent court and in achieving the best interest of the child. The general jurisdictional rule attributes primary responsibility to the authorities of the member state where the child has his/her habitual residence. Proximity helps to explain why the child’s habitual residence is considered to be the most appropriate forum in matters of jurisdiction. Habitual residence has established itself as highly accepted criteria for jurisdiction in matters relating to children, along with the matters of family law. The concept of habitual residence is not defined anywhere, so it hold more flexible criteria.

The habitual residence of the child corresponds to the place which reflects some degree of integration by the child in a social and family environment. In addition to the physical presence of the child in a member state, other factors must also makes it clear that the presence is not in any way temporary or intermittent and that the child’s residence corresponds to the place which reflects such integration in a social and family environment. These factors include the regularity, condition, duration and reasons for the child’s stay in the territories of the member state and child’s nationality. These factors may vary based on the age of the child concerned.The continuation of the jurisdiction of the courts of the state where child had his/her former habitual residence.The continuing jurisdiction of the state of child’s former habitual residence is dealt in Article 9. It provides for access rights to be given in the child’s former habitual residence to ensure child’s ongoing contact with his/her parents, where the habitual residence of the child has been changed. This article deals with the jurisdictional change where the relocation of the child is in lawful move of the child. If the removal is unlawful, this article will not be applicable. The court of the previous habitual residence of the child continue to have the jurisdiction for the period of three months after the move for the purpose of modifying a judgement on access rights issued in the member state of the child’s former habitual residence. This judgement must be given prior to the removal of child to the member state. If the decision is not given prior, then article 9 will not apply.The jurisdiction of the court of the former habitual residence will be limited deciding on access rights as while the period of three months the court of the new habitual residence will have jurisdiction in all other matters of parental responsibility. The jurisdiction of the court of former habitual residence is renounced in the case the holder of the access rights may always start proceedings in the court of new habitual residence of the child.

Prorogation

Prorogation is the referred form of the attribution of jurisdiction to another court. Article 12 deals with the conditions in which the prorogation is permitted. Paragraph 4 states the presumption of the best interest of the child for the purpose of the application of the prorogation of jurisdiction. This will apply only to the circumstances where the child has his/her habitual residence in a third state who is not party of the Hague Convention. So, the regulation is extended till the application of ratione personae in parental cases, but only in particular case of the prorogation.  It presumes that requirement of ‘best interest of the child’ is fulfilled in particular if it is found impossible to hold the proceeding in a third state in which the child has his or her habitual residence. The similar presumption of the best interest of the child would not apply when the child has his/her habitual residence in a member state of the Hague convention.

Article 12(1) provides for the possibility on the agreement for the jurisdiction of the court in the member state if there is pending divorce proceeding. It talks about the conditions of prorogation of jurisdiction to another court of the member state in connection of the parental responsibility disputes. When the divorce proceeding are pending in a court in a member state, the court under regulation has jurisdiction in any matter of parental responsibility even though the child concerned is not habitually resident in the member state. Article 12(3) deals with the prorogation which is not related to any matrimonial proceedings. A court in a member state other than the state of child’s habitual residence may be prorogued and any have the jurisdiction in the proceeding which can affect the parental responsibility apart from the proceedings of divorce, marriage annulment, and legal separation. This will apply only when the child has substantial connection with that member state.  This will apply when one of the holders of particular parental responsibility is habitually resident of member state or when the child is national of that member state.

Jurisdiction on the basis of mere presence of child’s in the member state and in respect of refugee children or internationally displaced children.

In exceptional circumstances, where the jurisdiction cannot be determined under article 12, then the national court of the member state where the child is present may have the jurisdiction to determine and hear the substance of the cases according to article 13(1) of the regulation.  The courts where the child is present are given jurisdiction only because no other court appears to be able to hear the case on any jurisdictional ground. This may be called as jurisdiction of necessity. Article 13(2) deals with the refugee children or the children who are internationally displaced because of disturbances or conflicts in their country of origin. These children lost all their ties with the state or origin. Also, they have often not been in the state to which they have moved for enough time to acquire habitual residence there. In these circumstances it will deny jurisdiction to the court where the child is present. In case the child settles in the third country, then the issue related to parental responsibility will not be dealt on the basis of this regulation.  

Residual jurisdiction

Article 14 provides that where no court of a member state has jurisdiction under article 8 to 13, jurisdiction shall be determined in each state by the laws of that state. The conditions for the application of this article is extremely strict. This comes into play when the court deals with a case relating to a child whose residence is outside EU or who does not claIm refugee status; or who is not considered to be displaced because of disturbance in their country and where there is no possibility of prorogation of jurisdiction. Only if the court finds that no EU member state has jurisdiction in accordance with the regulation does art. 14 open door to jurisdictional rules in national law. It can only be used if the child is not habitually resident in a third state which is party to the 1996 Hague Convention on the Protection of Children.

Cases

PM v. AH

This case involved two Bulgarian nationals, who moved to France after marrying in Bulgaria. Their child was born in France. After their separation, both parents and the child continued living in France. The mother (AH) filed a petition for divorce in a Bulgarian court, where she also applied for custody of the child, access rights to the father (PM) and maintenance. The proceedings reached the Supreme Court of Cassation in Bulgaria which referred a question to the CJEU.The question posed is whether the court competent to decide on over a divorce under Article 3(1)(b) of the Regulation can also decide on the applications concerning parental responsibility, when the conditions of Articles 8 and 12 are not met, but the national law of the Member State obliges the court to jointly decide on the matters of divorce and parental responsibility.The Court gave precedence to the rule in Article 8(1) of the Regulation, according to which the courts of the Member State where the child has his/her habitual residence at the time the court is seized have jurisdiction in matters of parental responsibility.

VC v GC

The child in question had been born in France but had been living in England for 22 months with the agreement of her French father. Her mother sought an adjournment of the French proceedings and was also granted an English Residence Order. The French court, however, made an interim residence order in favour of the father. He accepted that the child was now habitually resident in England, but sought the application of Article 12(1)(b) so that the child’s future might be determined by the French courts.

The English High Court found that the child was habitually resident in England and that the court of habitual residence was best suited to determine issues of parental responsibility. Although an acceptance of jurisdiction did not necessarily have to be made in writing, later acts and contacts could illuminate the quality of the acceptance at the time the court was seised.

Conclusion

In the contemporary world, with the globalization the movement of people from one place to other also increased. These led to many problems which increases the requirement of the Private International Law to deals with the matter of family at international label. In dealing with the matter of determination of the jurisdiction of parental responsibility through the international law, it is deduced that as far as the protection of best interest of the children is required the national court which of its own motion declared that it does not have jurisdiction must inform either directly or indirectly whereas the court of another member state have jurisdiction.

ENDNOTES

https://www.asser.nl/media/4651/m-5796-ec-justice-cross-border-proceedings-in-family-law-matters-10-publications-02-guide-for-application-chapter-3.pdf, International jurisdiction on parental responsibility.

https://www.europeanpapers.eu/en/europeanforum/jurisdiction-parental-responsibility-between-legal-certainty-and-childrens-rights, Jurisdiction in matters of parental responsibility between legal certainty and fundamental right.

https://www.ejtn.eu/PageFiles/12464/Cross_border_parental_responsibility.pdf, Cross border parental responsibility, jurisdiction rule including prorogation of jurisdiction.

Public International Law; V.K.Ahuja, ed. 1st.

https://www.researchgate.net/publication/330214069_Jurisdiction_in_Parental_Responsibility_Matters, Jurisdiction in parental responsibility matters.

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