Brussels IIa and the Maintenance Regulation
A Quick Tour for Beginners
The European Union
A.
Children cases and Brussels IIa
B.
Divorce and finance
C.
D.
a.
Divorce and Brussels IIa
b.
Finance and the Maintenance Regulation
Other international instruments
a.
1980 Hague Convention (abduction)
b.
1996 Hague Convention (parental responsibility)
c.
The Protection Measures Regulation
d.
Taking of Evidence Regulation
e.
The Service Regulation
Useful links and resources
Eleri Jones
1 Garden Court
10 May 2015
1
The European Union – the 28 Member States
Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic,
Denmark*, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy,
Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania,
Slovakia, Slovenia, Spain, Sweden and the UK *
* Denmark opted out of Brussels IIa. Denmark and the UK are treated differently from
the other Member States for the purposes of the Maintenance Regulation
NB The following are not Member States of the EU: Albania*, Iceland*, Liechtenstein,
FYR Macedonia*, Montenegro*, Norway, Serbia*, Switzerland and Turkey* (*not yet)
2
A - CHILDREN CASES AND BRUSSELS IIA
Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction
and the recognition and enforcement of judgments in matrimonial matters and the
matters of parental responsibility, also known as ‘Brussels IIa’
1.
When does it apply?

In every single case concerning children, the court is obliged to consider
whether or not it has jurisdiction under Brussels IIa

Brussels IIa applies even if there is another country concerned which is not
an EU Member State: it is the ‘gateway’ for the courts here to establish
jurisdiction. If no Member State has jurisdiction, national law is applied.
2.
3.
Where to go for help

The Regulation itself
http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32003R2201&from=EN

The Brussels IIa Guide (2014)
http://ec.europa.eu/justice/civil/files/brussels_ii_practice_guide_en.pdf
Structure of Brussels IIa and general considerations

Chapter I: Scope – what it does and does not apply to (Art 2-3) and
definitions (Art 4)

Chapter II: Jurisdiction (Art 8-14 and Art 20)

Art 8: courts of place where child is habitually resident when seised

Art 9: jurisdiction continues for three months after a lawful move

Art 10-11: child abduction cases, return of the child

Art 12: prorogation (ongoing proceedings for divorce or substantial
connection + expressly accepted by both parties + best interests)

Art 13: presence (if habitual residence cannot be established + no
jurisdiction under Art 12)

Art 14: residual jurisdiction (if no jurisdiction under Art 8-13) – national
laws (i.e. inherent jurisdiction)

Art 20: provisional, including protective, measures (if urgent + relates
to someone present + provisional)
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
Transferring jurisdiction (Art 15): outbound - particular connection + better
placed + best interests, or inbound – best interests

Examination as to jurisdiction (Art 17): if no jurisdiction, must declare so

Lis pendens/proceedings pending elsewhere (Art 19): same child, same
cause of action – court second seised shall stay proceedings/decline
jurisdiction
4.

Chapter III: Recognition and enforcement (Art 21-52) including Art 39 and
Art 41 certificates (see Annexes II and III/IV respectively)

Chapter IV: International cooperation and the central authorities (Art 53-58)
including assistance (Art 55) and placement of child abroad (Art 56)

Chapter V: Relationship with other instruments (Art 59-63)

Chapter VI: Transitional provisions (BIIa in force from 1 March 2005)
Important / helpful cases

Habitual residence – the ‘trilogy’ of Supreme Court cases:

A v A and another (Children: Habitual Residence) (Reunite
International Child Abduction Centre and others intervening) [2013]
UKSC 60 especially at [54] – it is a factual enquiry

In re L (A Child: Habitual Residence) (Reunite International Child
Abduction Centre intervening) [2013] UKSC 75


In re LC (Children) (Reunite International Child Abduction Centre
intervening) [2014] UKSC 1
International care cases: Re E (Brussels II Revised: Vienna Convention:
Reporting Restrictions) [2014] EWHC 6 (Fam), Munby P
5.

International cooperation (care): Leicester City Council v S [2014] EWHC
1575 (Fam), Moylan J – an Article 15 case but with consideration of and
guidance provided on the role of Embassies, central authorities,
international communications and requests for information under Article 55
(see especially paragraph [14])

Article 20: Re A (Area of Freedom, Security and Justice) (C-523/07) (2009)
Brussels IIa and the 1980 and 1996 Hague Conventions

Brussels IIa takes precedence over both (Art 60, 61)

Note additional provisions in Brussels IIa Art 10-11 about abduction
particularly Art 11(4) ‘adequate arrangements’ and Art 11(8) ‘second bite’
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B - DIVORCE AND FINANCE
Divorce and Brussels IIa
6.
When does it apply?

In cases relating to divorce, legal separation or annulment, apply the
provisions of Brussels IIa – see Art 3-6 to see if jurisdiction is established

If no Member State has jurisdiction under Brussels IIa, then the court may
have recourse to national law (Art 7) i.e. DMPA 1973 s5(2)
7.
Where to go for help

The Regulation itself
http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32003R2201&from=EN

The Brussels IIa Guide (2014)
http://ec.europa.eu/justice/civil/files/brussels_ii_practice_guide_en.pdf
8.
Main provisions and points to note

Art 3: Jurisdiction shall lie with the courts of the Member State where:

The spouses are habitually resident

The spouses were last habitually resident, in so far as one of them
still resides there

The respondent is habitually resident

The petitioner is habitually resident having resided there for at least a
year immediately before the application was made

The petitioner is habitually resident there having resided there for at
least six months before the application was made and is either a
national of the Member State or (for the UK) domiciled there

The spouses are both nationals or (for the UK) domiciled

There is no provision to ‘agree’ divorce jurisdiction e.g. in a pre-nup

Art 6 provides that a spouse habitually resident in a Member State or who
is a national of/domiciled in a Member State may be sued in another
Member State only in accordance with Art 3-5

Therefore if England does not have jurisdiction under BIIa but another
Member State does, England cannot use national law.
5

Art 15 (above) relating to transfers does not apply to matrimonial
proceedings (only parental responsibility proceedings)

If there is another country with jurisdiction that is a non-Member
State, the court retains the ability to stay the proceedings under
DMPA 1973 para 5(6) and Sch 1 in favour of the third state (i.e. the
‘Owusu’ principle does not apply to Brussels IIa) – Mittal v Mittal
[2013] EWCA Civ 1255 at [48]

The provisions mentioned above about examination as to jurisdiction (Art
17), lis pendens (Art 19) and provisional/protective measures (Art 20) apply
in relation to divorce proceedings as well

Chapter III Brussels IIa also applies to recognition of divorces (Art 21-27)
Finance and the Maintenance Regulation
Council Regulation (EC) 4/2009 on jurisdiction, applicable law, recognition and
enforcement of decisions and cooperation in matters relating to maintenance
obligations, also known as ‘the Maintenance Regulation’
9.
When does it apply?

To ‘maintenance’ decisions, replacing Brussels I (EC) 44/2001.

It came into force on 18 June 2011 (see transitional provisions, Art 75)

It must be applied in each case: it is the ‘gateway’ for the courts here to
establish jurisdiction.

There is no recourse to national law (unlike under Brussels IIa)

The way it applies as between Member States depends on whether the
countries are signatories to the Hague Protocol 2007 on applicable law. All
EU Member States are ‘Protocol States’ save the UK and Denmark.

10.
11.
It takes precedence over the 2007 Hague Convention on maintenance.
The Lugano Convention remains in effect and would need to be considered
in relation to Iceland, Norway or Switzerland.
Where to go for help

Procedure – FPR 2010 Part 34 (see overview in PD34C)

Forms are annexed to the Regulation itself
Structure of the Maintenance Regulation and important considerations

Chapter I: Scope – includes consent orders and ‘authentic instruments’,
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costs orders and decisions of Tribunals

‘Nationality’ in Art 3, 4 and 6 means ‘domicile’ for the UK (Art 2(3))

‘Maintenance’ will include (but is not limited to) MPS, periodical payment
orders, legal services orders, a Duxbury fund. The term ‘maintenance’ is
not defined but see old case law which still applies:


Van den Boogaard v Laumen (1997) ECR I-1147 (1968 Convention)

Moore v Moore [2007] EWCA Civ 361 (Brussels I case) at [80]
Chapter II: Jurisdiction (Art 3-14)

Art 3: general jurisdiction – where defendant (not ‘debtor’) or creditor
is habitually resident or where court has jurisdiction to deal with status
(divorce) or PR unless based on sole nationality (domicile) of a party
** sole domicile dilemma **

Art 4: agreement as to choice of court – see conditions in Art 4 for
selection of possible courts to choose BUT not for children under 18

Art 5: appearance of defendant (unless to contest jurisdiction)

Art 6: ‘subsidiary jurisdiction’ if no jurisdiction under Art 3, 4, 5 for
court of parties’ common nationality (domicile)

Art 7: ‘forum necessitatis’ if no jurisdiction under Art 3, 4, 5, 6,
exceptional basis of jurisdiction if dispute has sufficient connection
and proceedings cannot reasonably be brought in third State with
which it is closely connect (or it is impossible to do so)


Art 8: limit on proceedings – if creditor remains habitually resident
where decision made, debtor cannot start proceedings elsewhere
(unless agreed otherwise or defendant submits to jurisdiction)

Art 9: examination as to jurisdiction: if no jurisdiction, must declare so

Art 11: if defendant does not appear, need to show proper service

Art 14: provisional, including, protective measures (not MPS)
Lis pendens/proceedings pending elsewhere: same cause of action
between same parties – court second seised shall stay proceedings/decline
jurisdiction (Art 12) or may do so if proceedings are ‘related’ i.e. so closely
connected that it is expedient to hear together to avoid irreconcilability.

There is no provision for transfer of proceedings (like Art 15 BIIa)

No decisions yet re whether the ‘Owusu’ principle applies to the
Maintenance Regulation
7

Chapter III: Applicable law (Art 15) – does not apply to the UK

Chapter IV: Recognition and enforcement (Art 16-43)

Section 1: for Protocol States – no possibility of opposing recognition
of decisions (Art 17(2)), decisions automatically enforceable but with
limited scope for reviewing decision relating to service/force majeure
(Art 19) or refusing/suspending enforcement e.g. limitation,
irreconcilability or due to a review underway (Art 21)

Section 2: for non-Protocol States (and transitional cases) – no
special procedure needed to recognise (Art 23) but limited grounds to
oppose recognition of decisions (Art 24), need a declaration of
enforceability to be enforceable (Art 26)

Section 3: for all States; enforcement is governed by the law of the
State of enforcement (Art 41) and Art 42 no review as to substance
12.

Chapter V: Access to justice (Art 44-47) i.e. provisions about legal aid

Chapter VI: Court settlements and authentic instruments (Art 48)

Chapter VII: Cooperation between central authorities (Art 49-63) including
assistance by central authorities to make applications (Art 56) and
undertake specific functions in relation to such applications (Art 51)

Chapter VIII: Public bodies (Art 64) can be included as ‘creditors’

Chapter IX: General/Final (Art 65-76) including Art 75 transitional clauses
Interesting cases and some tips to bear in mind

EDG v RR [2014] EWHC 816 (Fam), Mostyn J – direct application to the
(then) PRFD permitted for enforcement of a French decision

AB v JJB [2015] EWHC 192 (Fam), Sir Peter Singer – direct application to
the (then) Slough County Court refused for modification of a German
decision: held must go via central authorities

Drafting: given different approaches in other Member States (especially
those with a civil system of law), best to be very clear in judgments and
orders what is considered ‘maintenance’ (see FR Omnibus para 93) and
avoid words such as ‘sharing’ or ‘compensation’

When exchanging correspondence, take care not to allow letters to be
construed as agreements to jurisdiction (Art 4) unless this is intended.
Consider in particular the effect of agreements regarding jurisdiction on
applications in future for modification of decisions (including in pre-nups
which, if properly constituted, may constitute ‘authentic instruments’).
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C - OTHER INTERNATIONAL INSTRUMENTS
13.
1980 Hague Convention on the Civil Aspects of International Child
Abduction

93 Contracting States worldwide – see status table:
http://www.hcch.net/index_en.php?act=conventions.status&cid=24

See also table showing acceptances of accessions to the Convention:
http://www.hcch.net/upload/abductoverview_e.pdf

Does not apply to children over 16 (cf 1996 Hague Convention which
applies until children are 18)
14.
1996 Hague Convention on Jurisdiction, Applicable Law, Recognition,
Enforcement and Co-operation in Respect of Parental Responsibility and
Measures for the Protection of Children

Currently applies as between UK and Albania, Armenia, Australia*,
Denmark*, Dominican Republic, Ecuador*, Georgia*, Lesotho, Monaco*,
Montenegro*, Morocco, Russia, Switzerland*, Ukraine* and Uruguay*
(* denotes countries where 1980 Hague Convention is in force with the UK)

Two practice guides (domestic and international):
http://www.justice.gov.uk/downloads/protecting-the-vulnerable/officialsolicitor/international-child-abduction-and-contact-unit/1996-hagueconvention-guide.pdf (MOJ)
http://www.hcch.net/upload/handbook34en.pdf (Hague Conference)

For a practical guide to the procedure for recognition or registration of an
order made in another Contracting State, see Re P (Recognition and
Registration of Orders under the 1996 Hague Child Protection Convention)
[2014] EWHC 2845 (Fam) (Moylan J)

15.
J (A Child) (1996 Hague Convention) (Morocco) [2015] EWCA Civ 329
Protection Measures Regulation

Regulation (EU) 606/2013 on mutual recognition of protection measures in
civil matters (12 June 2013)

Came into force on 11 January 2015 (does not apply to Denmark)

Preamble (3): “to ensure rapid and simple recognition and, where
applicable, enforcement in another Member State of protection measures
ordered in a Member State”
9

Preamble (6): applies “to protection measures ordered with a view to
protecting a person where there exist serious grounds for considering that
person's life, physical or psychological integrity, personal liberty, security or
sexual integrity is at risk, for example so as to prevent any form of genderbased violence or violence in close relationships such as physical violence,
harassment, sexual aggression, stalking, intimidation or other forms of
indirect coercion.”

Most likely to apply to orders under the Family Law Act 1996 and Protection
from Harassment Act 1997 (and orders under Children Act 1989 that are
not covered by Brussels IIa) but recognition limited to 12 months

Includes undertakings

See new FPR 2010 Part 38, PD38A and need for ‘Article 5 certificate’

Useful article by Sarah Lucy Cooper on Family Law Week (15.1.15)
http://www.familylawweek.co.uk/site.aspx?i=ed142516
16.
17.
The Taking of Evidence Regulation

Council Regulation (EC) 1206/2001 on cooperation between the courts of
the Member States in the taking of evidence in civil and commercial matters

In force from 1 January 2004 (does not apply to Denmark)

England’s central body for transmitting and receiving requests is the Senior
Master of the Queen's Bench Division at the RCJ

See FPR rules 24.15-24.16 and PD24A paras 6-9 and Annex B (a copy of
the Regulation)

Distinguish from requests for information under Article 55 BIIa which is
done via the central authorities
The Service Regulation

Council Regulation (EC) 1393/2007 on the service in Member States of
judicial and extrajudicial documents in civil or commercial matters

Applies from 13 November 2008 (includes Denmark due to agreement)

Optional to use, not mandatory; service to be effected within one month

Note Article 5 (and Article 8) about translation

England’s ‘transmitting agency’ and ‘receiving agency’ is the Senior Master
of the Queen's Bench Division at the RCJ

See FPR 2010 rule 6.44 and PD6B para 2 (annexes the Regulation)
10
D - USEFUL LINKS AND RESOURCES
18.
Central Authorities

Brussels IIa: International Child Abduction and Contact Unit (ICACU)
Victory House, 30-34 Kingsway, London, WC2B 6EX
Tel: 020 3681 2608, email: ICACU@offsol.gsi.gov.uk
NB President’s Guidance of 10 November 2014: The International Child
Abduction and Contact Unit (ICACU)
https://www.judiciary.gov.uk/publications/presidents-guidance-on-theinternational-child-abduction-and-contact-unit-icacu-and-its-role/

Maintenance Regulation: Reciprocal Enforcement of Maintenance Orders
Unit (REMO)
Victory House, 30-34 Kingsway, London, WC2B 6EX
Tel: 020 3681 2757, email: remo@offsol.gsi.gov.uk
19.
European Judicial Atlas

20.
21.
European Judicial Atlas in Civil Matters (including list of central authorities)
http://ec.europa.eu/justice_home/judicialatlascivil/html/mo_information_en.h
tm
European e-Justice Portal

Certificates referred to in Articles 39, 41 and 42 of Brussels IIa
https://e-justice.europa.eu/content_matrimonial_matters_and_matters_
of_parental_responsibility_forms-271-en.do

Annexes I to IX to the Maintenance Regulation
https://e-justice.europa.eu/content_maintenance_obligations_forms-274en.do
Hague Conference

Hague Conference on Private International Law
www.hcch.net
Eleri Jones
1 Garden Court
10 May 2015
11