Living Without The Jurisdictional Rules of Brussels IIA

1. INTRODUCTION It is a privilege to write in honour of John Eekelaar, whose contribution to the study of family law is as immense as it is wide-ranging. Aside from his research, John was a key figure in creating and nurturing the International Society of Family Law, which was so influential in shaping the family law agenda, and which provided opportunities for academics around the world to meet and to discuss issues of joint concern. I first met John in 1976, at a conference organised by the University of Toronto. He was already an established and well-respected scholar. I had just ‘discovered’ the issue of international parental child abduction via my research into the wardship jurisdiction. John also had an early interest in that topic, and his valuable study of the problem, in Commonwealth legal systems, helped to persuade Commonwealth law ministers to support a Hague initiative, which in due course led to the concluding of the 1980 Hague Abduction Convention. While John’s career took a different direction, I developed an interest in international child abduction and, more broadly, in the global attempts to deal with cross-border disputes concerning children. Pursuing an international theme, this contribution explores some of the jurisdictional consequences that ensue in having to apply the 1996 Hague Protection of Children Convention (the Convention), rather than Council Regulation No. 2201/2003 (the revised Brussels II Regulation, hereafter ‘BIIa’), which the UK formally revoked on 31 December 2020 – the end of the implementation period following its withdrawal from the EU – and which is now referred to as ‘IP completion day’. 2. BACKGROUND TO THE CURRENT JURISDICTIONAL RULES 2.1. THE CONVENTION, BIIA AND THE FAMILY LAW ACT 1986 Jurisdiction to make orders relating to children is complicated. To put the following discussion into context, it should be appreciated that, before IP completion day, the UK was bound by BIIa, and was a Contracting State to the Convention. So far as children are concerned, the two instruments overlap to a significant extent, which is not surprising, since the Regulation was modelled on the Convention. Each instrument provides for common rules of jurisdiction, and for consequent recognition and enforcement.

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