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- European Law, Private International Law, European Procedural Law, Human Rights, Conflict of Laws, International Commercial Arbitration, and 24 moreArbitration (International and Domestic), 1980 Hague Child Abduction, International Civil Procedure, International Law, Philosophy Of Law, Comparative Law, Family Law, EU Procedure Law, European Civil Procedure, Ethics, Civil Law, Mediation, Alternative Dispute Resolution (ADR), Comparative Civil Procedure, General Theory of Law, Forum Non Conveniens, Enforcement and Recognition of Foreign Judgments and Arbitral Awards, International jurisdiction, Jurisdiction, Civil Procedure, European Court of Human Rights, Transnational litigation, European Convention of Human Rights, and International Arbitrationedit
The child’s habitual residence is becoming one of the most important jurisdictional criterions in the area of private international family law. The adoption as the primary basis of jurisdiction under the Council Regulation (EC) No... more
The child’s habitual residence is becoming one of the most important jurisdictional criterions in the area of private international family law. The adoption as the primary basis of jurisdiction under the 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, repealing Regulation (EC) No 1347/2000 (Brussels IIbis), confirms its significance. However even after one hundred years of its first use in the substantive law Hague Convention on Guardianship of 1902 still two things remain. First still it is considered as a factual concept and as a consequence, most of the legal sources that deal with the private international law haven’t provided for a definition. In recent years following the A (Case C-523/07)(2009) ECR I-2805 this position has changed because of the assumption that the ECJ reached for “…need for uniform application of Community law and from the principle of equality” and that the “terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Community”. Also in another case, Rinau it was affirmed that the 1980 Hague Convention was adopted on the basis that the interests of children and that the guiding principles of the conventions are taken over, in matrimonial matters and matters of parental responsibility, by the Regulation. In the Advocate General Kokott opinion delivered on 29 January on the “A” case, held the position which was rendered in the Rinau case and stated that “Both provisions pursue the aim that abducted children should return immediately to the State in which they had their habitual residence before the unlawful removal. That coordination also makes a uniform understanding of the concept of habitual residence necessary”.
This article provides for analysis of the practice of the Hague Conference of Private International Law and tries to give the insight of the thirty year of implementation of the 1980 Child Abduction Convention and the 1996 Child Protection Convention and the problems that have emerged from it. This will help in creating a uniform application of this jurisdictional criteria and a uniform understanding of the concept of habitual residence. Also this article gives comparative insight of a recent phenomenon that is happening in the national codifications of the Private International Law that is the emergence of definitions of the habitual residence.
This article provides for analysis of the practice of the Hague Conference of Private International Law and tries to give the insight of the thirty year of implementation of the 1980 Child Abduction Convention and the 1996 Child Protection Convention and the problems that have emerged from it. This will help in creating a uniform application of this jurisdictional criteria and a uniform understanding of the concept of habitual residence. Also this article gives comparative insight of a recent phenomenon that is happening in the national codifications of the Private International Law that is the emergence of definitions of the habitual residence.
