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How the Upcoming Referendum Could Impact Future Cross-Border Family Law Cases

If you think the upcoming referendum is only a matter for Danes, you are wrong. The outcome of the vote can impact the lives of residents and EU citizens as well and in an attempt to answer the question “What does this mean for a foreign spouse or family living in Denmark? ” we looked at one of the 22 regulations in particular.

By Regan Quick-Severin

You may be noticing politicians urging Danes to vote ‘yes’ or ‘no’ in the upcoming 3 December referendum, in political ads or on TV.  When Denmark entered the EU in 1993, it “opted out” of the EU’s Justice and Home Affairs (JHA) rules, meaning that these regulations, or laws, do not apply to Denmark.

The government is now asking Danes to vote ‘yes’ to switch to an ‘opt-in’ system, whereupon Denmark can pick and choose which JHA regulations it adopts.  If the referendum succeeds, Denmark will immediately opt-in to 22 JHA regulations.

In a regulation entitled ‘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’, the EU has attempted to prevent some of the messy procedural issues which might arise in a cross-border family law case.

It provides a framework for parties to know which EU country to file the lawsuit in, it requires the court of one EU country to recognize the court decision, or judgment, of another EU country except under specific circumstances, and requires authorities from the EU countries to work together to enforce family law judgments with no cost to the parties.

Denmark’s current rules in family law cases are Danish

This EU Regulation, also known as the “New Brussels II Regulation”, does not currently apply to Denmark, which means that Danish procedural rules regarding family law matters are covered in the Danish Administration of Justice Act (see Chapter 42 regarding jurisdiction, in Danish only) and through any agreements Denmark has made with other countries.

Regarding family law matters, Denmark is a party to the Hague Divorce Convention (1 June 1970), the Hague Convention on Parental Responsibility (19 October 1996) and, as pertains to its relations with the four other Nordic countries, the Marital Convention of 6 February 1931.

The New Brussels II Regulation will supersede, or replace, the two Hague Conventions if it becomes the law in Denmark.  It is unclear at this time whether or not it will supersede the Nordic Marital Convention (see below).

A matter of procedure, not substance

It is important to note that the EU does not make laws regarding the substance of family law matters.  It cannot, for example, make a law telling EU Member States (that is, EU countries) what grounds for divorce are acceptable or what factors to consider in determining the custody of a child.

But it can make laws to promote cooperation between EU countries in civil court matters.

Marital and non-marital children as well as all EU citizens equal under the EU law

Council Regulation (EC) No 2201/2003 aims to ensure equality for all children, regardless of the marital status of the parents.  Additionally, the Regulation prohibits EU countries from discriminating on the grounds of nationality between citizens of the Union.

Denmark has been criticised by the EU in part for favouring Danish parents in terms of cross-border custody cases in the past.

What cases are covered under this regulation?

The scope of the Regulation applies to cases of divorce, legal separation, marriage annulment, and parental responsibility. Perhaps most often relevant to matters of parental responsibility, this Regulation pertains to rights of custody (the rights and duties relating to the care of the child and in particular, the right to determine the child’s place of residence) and rights of access (visitation rights).

Jurisdiction and the Best Interest of the Child

Which country’s court a party may file a family law case in is known as “jurisdiction”.  For example, a spouse or parent from country A may want to file his or her case in country A, but if this Regulation does not give country A’s court jurisdiction over these matters, the person cannot file the case in that country.

Factors for determining general jurisdiction under this Regulation are divided into two main sections: divorce, legal separation, and annulment are grouped together in one section and cases of parental responsibility are in another.  This is because jurisdiction in cases of parental responsibility is made with the best interests of the child as the primary consideration.  Jurisdiction over matrimonial matters is made with an eye toward the spouses.

Habitual residence, physical presence, and child abductions

However the spouses’ or the child’s “habitual residence” is the main factor in both types of cases in determining which Member State’s court should hear the case.  The term “habitual residence” is not defined in the Regulation.

The Court of Justice of the EU says “habitual residence” is a question to be decided by a Member State’s court in light of the specific factual circumstances of the case, but it does stress that in terms of a child’s habitual residence, it is more than mere physical presence in a Member State.  It is also the place that reflects a certain amount of integration by the child, socially and in the context of a family environment.

A case example if there is a “yes” votes the 3 December

For purposes of an example, let’s assume the referendum passes, making this Regulation law in Denmark and we have a situation where mom is from Spain and dad is from Denmark, the parents were never married and they have a six year old child who is a Spanish citizen but has spent the past 5 years living in Denmark.  The parents decide to end their relationship but cannot come to an agreement on custody.

In this scenario, you have a situation in which mom may want to return with the child to Spain and therefore may want to file for custody in the court where she and her child maintain citizenship.

However, the regulation says that the courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seized (becomes involved).  In other words, the court of the child’s habitual residence (regardless of the child’s citizenship) must have jurisdiction.

It is fairly clear in this case that mom must file her custody case in the Danish courts.  Not only is the child physically present in Denmark, but the child is also integrated into the country in terms of social and family environment, having lived the past five years here.

However, there is a section in the Regulation that would allow mom to file in Spain.  If the Danish father agrees that the Spanish courts will have jurisdiction and it is in the best interests of the child, then it can be filed in Spain if the child has a substantial connection with Spain, in particular because of the fact that the child is a citizen of Spain. A substantial connection to a particular EU country under this section can also be made if one of the parents is a ‘habitual resident’ of that country.  Even with this allowance, the Spanish court could decide that the Danish courts are better suited to hear the case and ask them to assume jurisdiction instead.

Habitual residence cannot be determined- what then ?

When the habitual residence of a child cannot be determined, such as might be the case for a refugee child or a very young baby who has been moved immediately before the application to a court is made, then the child’s mere physical presence in a Member State determines jurisdiction.

So if the child was not six years old but six weeks old, was born in Denmark and mom has been the primary caretaker of the child, was never married to the father, and returns with the child to Spain and immediately files for custody there, the Spanish court will have to determine under the Regulation if it has been granted jurisdiction to hear the case. That is, it will have to determine which country, if any, is the child’s ‘habitual residence’.  If it is unable to do so because of the very young age of the child and the recent move, it may be required to declare its jurisdiction based on the baby’s physical presence in Spain.

The Regulation makes a few more exceptions to the general rule of granting jurisdiction to the Member State of the child’s habitual residence, for example, in the following situations: 1) instances of child abduction by a parent (except in very limited situations).  In this way, the Regulation attempts to deter such abductions to other EU countries; and 2) for a three-month period of time for the purpose of modifying a previous judgment on visitation rights after a child has lawfully moved from one Member State to another, as long as a parent with visitation rights still maintains habitual residence in the former country.

In both of these cases, the court of the child’s former habitual residence maintains jurisdiction.

So in our example, if mom removes the child from his or her habitual residence of Denmark and it was determined to be an unlawful removal, or abduction, or if Mom lawfully moves with the child to Spain and within three months of the move either parent wants to change an order of visitation that Denmark granted prior to the move, so long as dad still lives in Denmark and does not accept a change to the Spanish courts, the Danish courts would retain jurisdiction.

If mom had received an order from either court allowing her to move with the child to Spain and dad refuses to relinquish the child for this purpose, the court that issued the order (that is, the court in the country where the child was habitually resident immediately before the wrongful retention, be it Denmark or Spain) retains jurisdiction.

The Regulation specifies and supplements the ways in which Member State courts must apply the 1980 Hague Convention on the Civil Aspects of International Child Abduction (which all EU countries have ratified) with regard to swift return of a child, and the Regulation states that an order for a child’s return is automatically enforceable in other Member States.

An additional exception to the child’s habitual residence rule is made when the parties are already going through a divorce, legal separation or annulment proceeding in one country.  Then that country shall have jurisdiction in related parental responsibility matters if at least one of the spouses has parental responsibility in relation to the child, both spouses agree to that court’s jurisdiction, and it is in the “superior interests of the child” for that court to hear the case.

So if the mom and dad in our example were married and going through a divorce in Spain because, for example, mom had already moved back to Spain and it was considered her ‘habitual residence’, then the Spanish court could have jurisdiction over the matter of parental responsibility as well, if the above conditions were met.

Jurisdiction in divorces, legal separations, and annulments

In terms of divorce, legal separation, and annulment, it is important to point out that the factors for determining jurisdiction seem to have been made to prevent ”shopping” around for the best court and to prevent a spouse from being unfairly forced to appear in a lawsuit in a Member State in which he or she is not habitually resident or a citizen, unless the applying spouse has habitually resided in that country (or in the case of the UK and Ireland, is ‘domiciled’ there) for a particular period of time immediately preceding the lawsuit.

There is no habitual residence requirement if both spouses are citizens of the country or, in the case of the UK and Ireland, if it is the ‘domicile’ of both spouses.  So if two married individuals are both residents of France, living in Denmark, they could choose to file for divorce in France, under the citizenship rule, or Denmark, under the habitual residence rule.

Recognition and enforcement of a judgment from another EU country

As to recognition and enforcement of another Member State’s court orders, or judgments, this Regulation aims to minimize procedural hassles for the parties involved and maximize cooperation between Member States.  Therefore, unless otherwise laid out in the Regulation, a judgment given in a Member State must be recognised by the other Member States without any special procedure being required.   It clearly spells out that under no circumstances may courts in one Member State review the substance of a judgment from a court in another Member State, and recognition is required in all but the narrowest of circumstances.

So for example, if two people are divorced in one EU country, those people must be recognized as being divorced in the other EU countries, without the requirement of any additional procedures in the other countries to effect that recognition.  Furthermore, no other EU country can decide, for example, that the facts of the case didn’t support the judgment of divorce or that, because the grounds for the divorce were not the same as the grounds available in the other country, the divorce will not be recognised.

The Regulation also attempts to speed up the process for enforcement of an order from one Member State in another Member State, especially in cases involving the return of an abducted child and visitation rights, understanding that the passage of time can negatively impact an absent child’s relationship with a parent.

Getting enforcement help free of charge

The Regulation also requires each Member State to designate one or more “central authorities” to assist with the application of the Regulation.  These central authorities are required to cooperate on specific cases when asked in order to achieve the purposes of this Regulation.  That might mean collecting and exchanging information, “facilitating” agreement between holders of parental responsibility (for example, through mediation), and facilitating cross-border cooperation.

A parent may ask the central authority for assistance with enforcement of a judgment and any assistance provided shall be free of charge.  It additionally states that if a party has benefited from complete or partial legal aid or exemption from costs or expenses in the Member State where a court order was made, that person is entitled to benefit from the most favourable legal aid or the most extensive exemption from costs and expenses provided for in the law of the Member State of enforcement.

How the Regulation affects related agreements between two or more EU countries

As stated earlier, this Regulation supersedes other conventions between two or more Member States relating to matters governed in this Regulation except that Finland and Sweden were granted (and they accepted) the option of declaring that the Convention of 6 February 1931 between Denmark, Finland, Iceland, Norway and Sweden on marriage, adoption and guardianship will apply in their mutual relations, in place of the rules of this Regulation.

It is not clear whether Denmark would have the option of allowing the 1931 convention to rule its relationship on these matters with the Nordic countries (of which only Sweden and Finland are EU countries) if it opts in to the Regulation.

Read more about the EU-referendum here