|In compliance with the principle of the best interests of the child, with reference to disputes relating to parental responsibility, in some specific cases of strict interpretation, it is possible to derogate from the general forum of the child’s habitual residence. One of these hypotheses is governed by Art. 12 of Regulation (EC) No 2201/2003, which allows the prorogation of jurisdiction in favour (i) of the forum of matrimonial matters, referred to pursuant to Art. 3 of Regulation (EC) No 2201/2003, or in favour (ii) of the forum with which the child has a close link. In addition to the express agreement by the parties, it is necessary that this prorogation is actually in accordance with the best interests of the child.
In relation to the matter of parental responsibility, Regulation (EC) No 2201/2003 provides, alongside the general forum of the child’s habitual residence (see the related sheet), a series of further fora, which are based on the principle of the best interests of the child and the criterion of proximity, giving flexibility to the rules on jurisdiction. Among them, Art. 12 titled “Prorogation of jurisdiction” (judgement of 6 October 2015, Marie Matoušková, C-404/14, EU:C:2015:653, paragraphs 35 and 36).
Art. 12 introduces limited scope for private autonomy in identifying the court having jurisdiction: parties to the dispute in matters of parental responsibility can choose to initiate proceedings before a court other than that of the child’s habitual residence, provided that this choice is consistent with the best interests of the child.
Since this is an exception to the general forum, Art. 12 is to be strictly interpreted.
Hypotheses of prorogation of jurisdiction
1. Pursuant to Art. 12 point 1, it is possible to deal with claims in matters of parental responsibility together with claims on matrimonial ties, when (i) there is the agreement of the spouses, at least one of whom exercises parental responsibility over the child, (ii) there is a dispute between them in matters of divorce, legal separation or marriage annulment before a court having jurisdiction pursuant to Art. 3 of Regulation (EC) No 2201/2003 and (iii) the exercise of the jurisdiction thus identified is consistent with the best interests of the child. Once the ruling on matrimonial matters has become final or the proceeding is concluded for another reason (e.g. withdrawal of the divorce application, death of one of the spouses), the jurisdiction of the matrimonial forum ceases in favour of the general rule of the forum of the habitual residence of the child.
2. Pursuant to Art. 12 point 3, it is possible to overcome the forum of habitual residence also in favour of another forum with which the child has a close link when this is the common will expressed by the disputing parties, whereas the prorogation is consistent with the best interests of the child. There is a close link, in particular, if one of the holders of parental responsibility habitually resides in that State or if the child is a national of that State. Unlike the previous hypothesis, the proceedings on parental responsibility does not need to be linked to another proceeding already pending before the court in favour of which the prorogation is exercised (judgement of 12 November 2014, L, C-656/13, EU:C:2014:2364, paragraphs 49-50). Since this is an exceptional hypothesis, once the proceeding before the prorogated court have been concluded, the rule of general jurisdiction pursuant to Art. 8 comes back to work (judgement of 1 October 2014, E. v. B., C-436/13, EU:C:2014:2246, paragraphs 46 and 49).
The Art. 12 deals with the element of consent in an attention way: jurisdiction shall be accepted (i) by all parties to the proceedings, (ii) expressly or in any other unequivocal manner.
The acceptance of jurisdiction in matrimonial matters does not implicitly extend to claims in the matters of parental responsibility (Italian Court of Cassation, Joint Sections, order of 30 December 2011, n. 30646).
It does not constitute a valid acceptance of the jurisdiction that expressed by the ad litem representative appointed by the judge in the face of the non-appearance of one of the parents, as the agent “has no contact with the defendant, he cannot obtain from him the information necessary to accept or contest the jurisdiction of those courts in full knowledge of the facts” (judgement of 21 October 2005, Gogova, C-215/15, EU:C:2015:710, para(s). 41-43).
The hypothesis of children residing in a State that is not party to the 1996 Hague Convention
No doubt that Art. 12 is applicable to all cases in which the parental responsibility proceeding relates to a child having the habitual residence in a Member State of the European Union (with the exception of Denmark).
For the case the child has the habitual residence in a State (not a Member of the Union, but) party to the 1996 Hague Convention (to this aim it is possible to find here the text of the Convention and the related Italian Law on its ratification and it is possible to consult here the updated status of the ratifications), the rules on jurisdiction provided for therein will be applied (see Art. 61 of Regulation (EC) No 2201/2003 on the relationship between Regulation (EC) No 2201/2003 and the 1996 Hague Convention).
In the different case of a child habitual resident in a State not bound by the aforementioned sources of law, pursuant to Art. 12 point 4, it is assumed that the exercise of the prorogation in favour of the court of a Member state of the European Union shall be deemed to be in the child’s interest, “in particular if it is found impossible to hold proceedings in the third State in question”.
Prorogation of jurisdiction under Regulation (EU) 2019/1111
With effect from 1 August 2022, the prorogation of jurisdiction in matters of parental responsibility will be governed by Art. 10 of Regulation (EU) 2019/1111 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction, which will entirely replace Regulation (EC) No 2201/2003.
Note – This document is subject to the warning set out here.