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RESOLVING THE PROBLEMS OF JURISDICTION IN FAMILY LAW BRUSSELS II AND POINTS WEST Janys M. Scott, ... - page 9 / 12

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(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.

There is some scope for prorogation of jurisdiction. If a child has a substantial connection with a member state and all parties accept jurisdiction of the courts of that state, provided acceptance of jurisdiction is in the best interests of the child, the case may proceed there (article 12(3)). A child may have a substantial connection with a member state if one of the holders of parental responsibility is habitually resident there, or the child is a national of that state.

If a court is exercising jurisdiction in divorce, legal separation or marriage annulment, by virtue of the Regulation, then that court may also exercise jurisdiction in a matter relating to parental responsibility where at least one of the spouses has parental responsibility and jurisdiction is accepted by the spouses and the holders of parental responsibility, and is in the “superior” interests of the child (article 12(1)). The new Regulation (unlike the original Brussels II) covers stepchildren. The reference to “superior” interests is a simple error. It should have read “best” interests. Jurisdiction lasts until decree in relation to the matrimonial case, or until judgment in relation to the children (if later).

Where a child’s habitual residence cannot be established, and jurisdiction is not prorogated, then the courts of a member state may exercise jurisdiction on the basis of the child’s presence, under article 13. If no court of a member state has jurisdiction under the Regulation, then each member state may apply its own law (article 14).

Under Brussels II bis, once the courts of a particular member state are seised of a particular cause of action in relation to a particular child, no court in another member state can exercise jurisdiction (article 19). This rule applies between member states, not between courts in different territorial units in the same member state.

There is an emergency jurisdiction under article 20. The Regulation does not prevent a court in any member state taking provisional, including protective measures in

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