Case Study #3 – Prorogation of Jurisdiction
(art. 12 Brussels IIa reg.)

Being Bolivian all the members of the family, parents and their daughter, they all moved to Barcelona in 2011 in order to find a better way of life. Once the whole family established there, both parents found a good job to sustain them. The father was taken on by a corporation dedicated to the extraction of oil and the mother opened a small restaurant and shop where she offered typical Bolivian food. This father’s job implied frequent displacements of him to other countries. During the first years things worked really well, but the economic crisis and the recurrent travels of the father implied too many problems for this family: there were fewer customers in the mother’s shop and many bills remained unpaid. 

In the beginning of 2015, both spouses decided to separate by mutual agreement. In parallel, the father moved to Portugal while the mother and their child remained in Barcelona. One year later, the mother brings an action for divorce before Spanish courts.

(drawn from Audiencia Provincial de Barcelona, sección 12ª, 30.10.2014) 

1. Which courts would be competent to hear an action for custody over the child? Could Portuguese courts hear the aforementioned action in case the father brings an action for divorce before them and the wife enters an appearance on the proceedings alleging exclusive custody over the child? If yes, under which conditions?

Questions to be analysed: jurisdiction on parental responsibility and divorce matters (including territorial jursidiction), prorogation of jursidiction and conditions to be met

Applicable legislation:

• Jurisdiction on parental responsibility matters: Article 8 Brussels IIa Regulation
• Jurisdiction on divorce: Article 3 Brussels IIa Regulation

In both cases, territorial jurisdiction would be determined according to the internal rule.

• But possibility to apply rules on prorrogation of jurisdiction to hear on the child’s custody according to Article 12.1 Brussels IIa Regulation. Acceptance of prorrogation of jurisdiction needs to be: “expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seized, and is in the superior interests of the child”. Morever, it is necessary that the decision is taken considering the superior interest of the child (e.g. proximity to the child). Application of Regulation 1206/2001 on cooperation to taking of evidence
• Article 12.2 of the Brussels IIa Regulation for the cease of jurisdiction

EU case law:

CJEU Case C-215/15: for Article 12.3 Brussels IIa Regulation, the acceptance of the proceedings “means that the defendant is aware of the proceedings taking place before those courts. While that absent defendant on whom the document instituting proceedings has not been served and who is unaware of the proceedings that have been commenced cannot in any event be regarded as accepting that jurisdiction”.

Let’s imagine another different situation in which the Bolivian parents had left their daughter in Bolivia with the mother’s parents, where the child is habitually resident. Both parents are habitually resident in Barcelona. Grandparents have been exercising parental responsibility over their granddaughter by delegation of the parents.

2. Would Spanish courts be competent to hear an action for custody over the child in this new situation if the mother brings an action for divorce before Spanish courts?

Now imagine that the parents and their child were all Australian. The parents decided to leave their daughter in Sydney with the mother’s parents before moving to Barcelona in 2011. Grandparents have been exercising parental responsibility over their granddaughter by delegation of the parents.

Questions to be analysed: prorrogation of jurisdiction in case the child is not habitually resident in a Member State and is neither habitually resident in a 1996 Hague Convention contracting State and conditions to be met.

Applicable legislation:

• International jurisdiction: Article 61 of the Brussels IIa Regulation takes precedence over the 1996 Hague Convention
• Prorrogation of jurisdiction to the Court holding jurisdiction to decide on divorce. Art. 12.1 Brussels IIa Regulation: one of the spouses must have parental responsibility in relation to the child and jurisdiction needs to be accepted expressly or otherwise in an unequivocal manner
• Residual jurisdiction: Article 14 of the Brussels IIa Regulation. Application of national rules to determine jurisdiction

3. Could Spanish courts be competent to hear an action for custody over the child in this new situation if the mother brings an action for divorce before Spanish courts?

Questions to be anaylised: Jurisdiction in case one of the States is 1996 Hague Convention contracting State

Applicable legislation: Jurisdiction is determined according to Article 8 and 9 of the 1996 Hague Convention: transfer of jurisdiction or forum non conveniens.

Now, let’s imagine that rather than being a married couple, parents were a de facto partnership and all the members of the family were German. The parents are habitually resident in Barcelona. The daughter has her habitual residence in Germany, where she lives together with her grandparents.

4. Could Spanish courts hear an action for custody over the child?

Questions to be analysed: Jurisdiction to hear on custody over the child in case the parents are in a de facto partnership

Applicable legislation: Jurisdiction of the Spanish Courts by virtue of prorrogation of jurisdiction according to Art. 12.3 of the Regulation and conditions that need to be met:

• substantial connection of the child with this Member State
• acceptance of the jurisdiction “expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child”.

Besides, jurisdiction could be attributed to the German Courts by application of Article 8 of the Brussels IIa Regulation: habitual residence of the child

EU case-law: CJEU Case C-656/13:

• application of Article 12.3 to children of non-married couples
• jurisdiction of a court of a Member State which is not that of the child’s habitual residence even where no other proceedings are pending before the court chosen.
• jurisdiction conferred under Article 12.3 “ceases following a final judgment in those proceedings”