Cross-EU border family law from 1 January 2021: guidance for legal professionals

4. Children cases (parental responsibility)

Note: In EU terms parental responsibility includes residence and contact.

4.1 Current law

Jurisdiction

Article 8 of Brussels IIa provides that jurisdiction in children cases generally rests with the court of the country of the child's habitual residence. Habitual residence is a question of fact which requires consideration of a number of factors. There are also other grounds of jurisdiction which may sometimes be relied upon. For example, under Article 12, the court with jurisdiction where there are divorce etc proceedings also has jurisdiction for proceedings about a child when at least one spouse has parental responsibility for that child and the relevant people agree the court should have jurisdiction.

For further information, refer to the Brussels IIa Regulation.

Recognition of orders

The general rule is that judgments on parental responsibility issued in a member state are recognised in other member states without any special procedure, under Article 21. This is subject to the exceptions contained in Article 23.

An order made in Scotland is recognised and enforced in EU member states when accompanied by the relevant certificate: Annex II to Brussels IIa for parental responsibility, Annex III for rights of access, Annex IV for return of the child. An order made in an EU member state is recognised and enforced in Scotland when accompanied by the relevant certificate as above.

4.2 From the end of the transition period

If the case is in Scotland

Cases ongoing in Scotland at the end of the transition period

The treatment of cases commenced before the end of the transition period is governed by Title VI of the Withdrawal Agreement. The Withdrawal Agreement does not apply to the treatment of cases that commence after the end of the transition period.

New cases in Scotland after the end of the transition period

Jurisdiction

Brussels IIa will no longer apply in Scotland after the end of the transition period. As retained EU law it is revoked by the Jurisdiction and Judgments (Family, Civil Partnership and Marriage (Same Sex Couples)) (EU Exit) (Scotland) (Amendment etc.) Regulations 2019.

The court will instead make its decision on whether it has jurisdiction to hear private law cross border children cases in accordance with the rules of the 1996 Hague Protection of Children Convention.

Recognition of orders

In future, parental responsibility judgments from EU member states will be recognised under the 1996 Hague Convention. The Convention was implemented by the Parental Responsibility and Measures for the Protection of Children (International Obligations) (Scotland) Regulations 2010 (SSI 2010/213).

If the case is in an EU member state

Cases ongoing in an EU member state at the end of the transition period

The treatment of cases commenced before the end of the transition period in EU Member States is governed by Title VI of the Withdrawal Agreement.

Transfer of cases after the end of the transition period

The provisions of Brussels IIa could prevent a court in an EU member state using the 1996 Hague Convention to transfer jurisdiction in children cases to the UK after the end of the transition period. The legal position on transfer of cases is not clear. Parties may wish to consider seeking local legal advice in the relevant EU member state if possible.

New cases in an EU member state after the end of the transition period

Jurisdiction

All EU member states are party to the 1996 Hague Protection of Children Convention so it is expected that the court of an EU member state in a case with a UK connection will apply the rules of the 1996 Hague Convention to decide whether it has jurisdiction in children cases.

For further information, refer to the 1996 Hague Convention.

Recognition of orders

The guidance from the European Commission states that in some instances international conventions will apply provided that both the EU member state and the United Kingdom are party to the convention.