The implications of Council Regulation (EC) No.2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility

Abstract

The focus of this study is an analysis of the effects and implications in the application of Council Regulation EC 2201/2003 also known as Brussels II bis since its entry into force. Since Malta's accession in the European Union on the 1st of May 2004 Regulations issued by the European Union have direct effect and is directly enforceable. My thesis revolves around the need within the European community to regulate international private family law matters on a common European basis. The effect of this Regulation is far reaching. It covers jurisdiction, recognition and enforcements of judgments and creates more stringent rules in family abduction cases. My study tries to answer the implications of the various aspects of this regulation. In fact, my first chapter deals with the various attempts to create a common ground of recognition and enforcement in this area and the cultural obstacles which still have to be overcome in order for a homogenous application of family law. The Member States still maintain a strong, legal cultural background in this sphere but reality shows that people have become more mobile within the member states in the EU. Hence the lack of coordination in this field can create numerous problems to the European citizen. In addition to this, the regulation tries to reduce the bureaucracy when it comes to the recognition and enforcement of a judgement. The previous attempts to regulate this area were modest steps but Brussels II bis is based on a more vigorous approach. The regulation may raise allegations of breaches of Human Rights. In fact, in my second chapter I will be focusing on the possible breach of Human rights in three different branches within the regulation which are the declaration of annulment of marriages, judgements given after complaints have been made regarding the 1980 Hague Convention on child abduction and rights of access as refusal to return the child can result in a breach of Article 8 - the right to respect private and family life. The thesis also covers the substantial differences between Council Regulation 2201/2003 and the Hague Convention on Child Abduction of 1980. In Malta the Child Abduction Act, giving force to the 1980 Hague Convention, came into force in 1999. The regulation creates very serious implications in this area as the Regulation overrides the convention in circumstances which are regulated by the convention. In circumstances where it does not, the Hague Convention on Child Abduction still serves to regulate those circumstances. The Regulation also includes articles about Parental responsibility. The chapter examines the jurisdictional connecting factors, the persons who has parental responsibility and the definition of parental responsibility. Moreover, I will also be analyzing when a judgment relating to matrimonial matters can be enforced and recognized and when recognition can be rejected. The aim here is to see what the implications are when we look at Maltese law together with the regulation. The European Court of Justice has always played a major role in developing the primary or the secondary European rules. However, as the regulation has only been in force since 2005, case law has still to develop. In spite of the short time limit, in my thesis I shall be analysing the questions which have been referenced to the ECJ. Finally I have included a chapter on the relationship between the Regulation and a number of international instruments.