Choice of Forum – Jurisdictional Issues within the UK
Posted On: 31 October 2007
Author: Janys M Scott QC
Download full article: Choice of Forum – Jurisdictional Issues within the UK [pdf-157kB]This paper was delivered at the Advanced Family Law Conference of the Law Society of Scotland on 30 October 2007 and is reproduced with the kind permission of the Society.
Family lawyers have a dilemma. There are now two sets of jurisdictional rules, one to be found in domestic law, and the other in directly applicable EC regulations. They differ in material respects. There are two views about which apply. Confusion reigns.
Leaving aside the question of maintenance, the EC started to make inroads into family law in Council Regulation (EC) No 1347/2000 ("Brussels II"). This made provision for jurisdiction and enforcement in matrimonial proceedings. On 1 March 2005 Council Regulation (EC) No 2201/2003 ("Brussels II bis") superseded the 2000 Regulation and extended the scope of the jurisdiction and enforcement rules to matters of parental responsibility. Brussels II bis is directly applicable in the United Kingdom. Where there is a conflict between the Regulation and domestic law, the EC provisions prevail. The difficulty we now face is to distinguish between situations in which the Regulation prevails and situations in which domestic law continues to apply. The source of the confusion is lack of clarity in the Regulation and residual conflict with domestic provisions.
One of the objectives of the Regulation is to allocate jurisdiction between member states of the EU, based principally on habitual residence of the key persons. The foundation for the Regulation is in article 65 of the Treaty establishing the European Community, which refers to the power of the Council to adopt measures "necessary for the proper functioning of the internal market". On a restrictive view the Council should not adopt measures affecting the internal functioning of member states. On the other hand a prospective litigant in another part of the EU does need to know where within a country such as the UK an action should be commenced. There would be some inconsistency if a person in the Netherlands could instigate proceedings in one part of the UK, whereas a UK resident was required to start similar proceedings in another part.
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