Coclusions of discussion „Family matters, jurisdiction, applicable law, recognition and enforcement of judgments, as well civil aspects of cross-border child abduction„ – application in practice of regulations No 2201/2003, No 1259/2010 and relevant international conventions

Dr.iur. Kucina Irēna,Lecturer at the Latvian Judicial Training Centre, Deputy State Secretary on Judiciary at Ministry of Justice

This presentation is Co-funded by the Civil Justice Programme of the European Union Project JUST/2013/JCIV/AG/4691 „The Court of Justice of the European Union and its case law in the area of civil justice”. Šī prezentācija izstrādāta ar Eiropas Savienības programmas „Civiltiesības” finansiālu atbalstu projekta Nr. JUST/2013/JCIV/AG/4691 „Eiropas Savienības Tiesa un tās judikatūra pārrobežu tiesiskās sadarbības jomā civillietās” ietvaros

We was discussing about:

cross border jurisdiction;applicable law;the recognition and enforcement of

foreign judgments;the civil aspects of international child

abduction

WE CONCLUDED:

- Latvian court practice is rich with conclusions about application of the Brussels IIbis Regulation

- We are well-known and about us there are written publications in foreign researches about the Latvian court practice in illegal cross-border child abduction cases

- Results of Ministry of Justice implemented project of EC (researches of lecturers, notes of lectures , articles) are used and in some cases are cited in the Latvian court rulings

- In the future we want, in particular, to learn about cross-border insolvency cases, cross-border succession Regulation

- We are knowledgeable about Brussels IIbis Regulation

  

1. Cross border jurisdiction - Brussels IIbis Regulation

Cross-border divorce :: Basis for cross-border divorce provided by Article 3 of

Regulation are alternative

Habitually residence of spouse / spouses in Latvian courts is determined according to the facts in each case. The principle of declared residence in cross-border cases is not decisive. The court has to assessed the spouse / spouses center of legal interests at each national member state.

The applicant's arguments concerning the defendant's domicile in Latvian at time of the submission of the application is more subjective and is based on assumptions. Therefore court has three options (1) accept the application, thereby making it possibile for the defendant himself reflect his views on the domicile in Latvian (2) refuse to accept the application immediately disagreeing defendant's subjective point of view; (3) ask the defendant to remove those "subjective" deficiencies.

Cross-border parental responsibility cases: :

Child's habitual residence determination should be guided by ECJ case-law (2 April 2009 CJEU’s decision in case C‑523/07 and 8 October 2010 CJEU’s decision in case C‑497/10 PPU)

Debatable - whether it is necessary the child's opinion at the moment of determination of the jurisdiction when action is submitted to court? Opinions were divided. The majority held that the plaintiff have not to avoid disadvantages – submit the child's opinion. The Court, upon receipt of claim, within seven days, have to asses current situation and CJEU ctiteria for determination of the child's habitual residence, must be able to find out where the child is habitually resident.

The agreement on the admissibility of a case (divorce and parental responsibility cases) Consolidation of claims under Brussels IIbis regulation is possible only if a conditions of Article

12 of Regulation is accomplished. The most important – there must be an agreement between the parties on the jurisdiction of national court that is other than the child's country of residence, but it is a state of divorce at the time when the action was brought + court shall analyze in ruling that the jurisdiction of the court, which was accepted by parties, is in the best interests of child. Otherwise consolidation of claims is not allowed. It is permissible to accept an application for divorce, but an application for parental responsibility to refuse.

Transfer of case to another member state (Article 15)

Application only in exceptional cases!!! This is a deviation from the jurisdiction of the court which shall by merits try the case about parental responsibility. The court must held a special link with another country. Links criteria - defined in the Regulation. Often, the existence of a single criteria is not enough, there must be the totality of criteria.

  2. Applicable law – Roma III Regulation

Limited autonomy of the parties

Procedural requirements for agreement – shall be concluded in writing, signed by both parties and indicated the date, in some cases shall be respected special form requirements

Applicable law in the absence of a choice by the parties - ir paredzēta piemērojamā likuma normu hierarhija There is provided the hierarchy of norms for the applicable law

How to clarify the content of foreign law? Is the initiative of the parties or the court? Still opinions are divided, but surely it is felt that it is the obligation of the parties.

  

3. The recognition and enforcement of foreign

judgments

Under no circumstances may a judgment be reviewed as to the merits (Article 26 and 31)

The application can be not recognized or declared to be not enforceable only on the basis of Articles 22, 23 and 24 – the basis for non-recognition of the judgment. The basis mentioned in F part of Civil Procedure law is not applicable.

  

4. The civil aspects of international child abduction

Since March 1, 2015 cross-border child abduction and unlawful detention

cases are tried at the Riga Northern District Court.

Foreign court generally decides on the child's returnLatvian court generally decides on the non-return of childrenMostly children are abducted by mothersTOP states – mostly EU – the UK; Ireland; Germany; there have been cases with USA; Hong Kong SAR, China; Canada; Australia; Georgia

 

Thank participants for discussion, your perspective on things and attention!