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RESOLVING THE PROBLEMS OF JURISDICTION IN FAMILY LAW BRUSSELS II AND POINTS WEST Janys M. Scott, ... - page 7 / 12

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  • guardianship, curatorship and similar institutions

  • the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child

  • the placement of the child in a foster family or in institutional care

  • measures for the protection of the child relating to the administration, conservation or disposal of the child’s property.

It does not however cover:

  • the establishment or contesting of a parent-child relationship

  • decisions on adoption, measures preparatory to adoption or the annulment or

revocation of adoption

  • the name and forenames of the child

  • emancipation

  • maintenance obligations

  • trusts or succession

  • measures taken as a result of criminal offences committed by children.

The principal rule is that the courts of a member state have jurisdiction in respect of a child who is habitually resident in that state (article 8). There are significant complexities in working out where a child is habitually resident. The habitual residence of children is generally treated as being dependent upon that of the persons with parental responsibility for the child. There is a full summary or the law relating to habitual residence in International Movement of Children by Lowe, Everall and Nicholls.

Article 66 applies in children’s cases. This is the article that relates to member states where there are two or more systems of law. Any reference to habitual residence in the member state “shall refer to habitual residence in a territorial unit”. This implies that jurisdiction lies with the courts of the territorial unit in which the child is habitually resident. Such an interpretation would be consistent with the provisions relating to divorce. On this view, Brussels II bis governs the distribution of cases within the United Kingdom, as well as distribution between EU member states.

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