What we should not expect from a recast of the Brussels IIbis Regulation

If the European Commission decides to recast the Brussels IIbis Regulation, it is likely to submit a proposal in which the focus will be on practical matters, such as judicial cooperation, the return of abducted children, or the further abolition of exequatur. The questionnaire that was used for the public consultation on the ‘functioning’ of Brussels IIbis did not leave much room for criticism of the Regulation’s points of departure with regard to jurisdiction in matters of parental responsibility. Yet, there are a few issues that may be more important than the prevention of parallel proceedings or the free circulation of judgments within the EU. One of them concerns the virtually unlimited scope of the regulation in cases in which jurisdiction is determined by prorogation (Article 12). Another problem results from the perpetuatio fori principle underlying Article 8. Both provisions confer jurisdiction even if the child is habitually resident outside the EU, which casts considerable doubt on the effectiveness of the court’s decision.