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RESOLVING THE PROBLEMS OF JURISDICTION IN FAMILY LAW BRUSSELS II AND POINTS WEST Janys M. Scott, ... - page 8 / 12

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There are particular rules relating to children who move from one state to another lawfully (article 9). In those cases the courts of the place where the child was habitually resident retain jurisdiction for three months for the purpose of modifying a judgment on access rights, provided the holder of those rights continues to be habitually resident there. The courts of the place to which the child has moved may deal with all matters, including access, if the holder of the access rights accepts jurisdiction by participating in the proceedings in the child’s new state of habitual residence.

If a child is moved from one state to another unlawfully then there are significant hurdles to overcome before the courts of the new state of habitual residence will have jurisdiction. The Regulation is designed to reinforce discouragement of international child abduction. Article 11 attaches extra provisions to the Hague Convention on the Civil Aspects of International Child Abduction, as between member states. Article 10 prevents any change in jurisdiction from the courts of the child’s original habitual residence, to the new habitual residence until each person, institution or other body having ‘rights of custody’ has acquiesced in the removal of the child or the child’s retention, or that the child has resided in the other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:

(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained; (ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i); (iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);

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