¹ Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses [2000] OJ L160/19.

² Recital (1).

³ C McGlynn, Families and the European Union: Law, Politics and Pluralism (Law in Context Series, CUP, Cambridge, 2006) 152.

⁴ In this article, ‘England’ is used as an abbreviated reference for the jurisdiction of England and Wales, and ‘English law’ for the law of England and Wales.

⁵ Report from the House of Lords Select Committee on the European Communities ‘Brussels II: The Draft Convention on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters’ HLP 19 (1997–98) 5^th Report [17]: ‘Courts in the United Kingdom would have jurisdiction in almost all cases where they have it at present and would lack jurisdiction in almost all cases where they lack it at present’ (referring to evidence of E Clive). Compare s 5(2) Domicile and Matrimonial Proceedings Act 1973 (pre–amendment) with art 2 Regulation 1347/2000 (n 1).

⁶ Report from the House of Lords Select Committee (n 5) 3 (minutes of evidence).

⁷ Under s 10 Children Act 1989 (cf art 3(1) Regulation 1347/2000 (n 1)).

⁸ European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children 1980 (Council of Europe, CETS No. 105), given effect under the Child Abduction and Custody Act 1985.

⁹ Prior to the coming into force of Regulation 1347/2000, divorces were generally only recognizable in Ireland if one of the spouses was domiciled in the granting jurisdiction at the date of institution of proceedings: A Shatter, Shatter's Family Law (4^th edn, Butterworths, Dublin, 1997) ch 10.

¹⁰ See s 39 Family Law (Divorce) Act 1996 (re divorce jurisdiction); s 15(1)(f) Family Law (Divorce) Act 1996 (re accessory jurisdiction over child matters); Child Abduction and Enforcement of Custody Orders Act 1991 (giving effect to Luxembourg Convention).

¹¹ 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 [2003] OJ L338/1.

¹² See Recital (24): the United Kingdom and Ireland had the right to ‘opt out’ of judicial cooperation measures.

¹³ Art 5(2) of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters [1978] OJ L304/36.

¹⁴ Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1.

¹⁵ Of course, aside from the maintenance provisions of the Brussels I Convention, European law had also engaged indirectly with family relationships in regulating immigration and the free movement of persons, gender equality, social security, and in its staff regulations (see further di Torella, E Caracciolo and Masselot, A, ‘Under Construction: EU Family Law’ (2004) 29 EL Rev 32Google Scholar; McGlynn, C, ‘The Europeanisation of Family Law’ (2001) 13 Child and Family L Q 35Google Scholar). The EU institutions had also adopted numerous ‘soft law’ instruments on family policy: see eg Parliament (EU), ‘Resolution on the Protection of Families and Children’ [1999] OJ C128/79. However, Regulation 1347/2000 was the first binding measure to focus directly on family law.

¹⁶ Convention drawn up on the basis of art K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters [1998] OJ C221/1.

¹⁷ McEleavy, P, ‘The Brussels II Regulation: How the European Community Has Moved into Family Law’ (2002) 51 ICLQ 883CrossRefGoogle Scholar, 891. On the background to, and development of, the German proposal, see also A Borrás, ‘Explanatory Report on the Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters’ [1998] OJ C221/27 [7]–[8]; Stone, P, ‘The Developing EC Private International Law on Family Matters’ (2001) 4 Cambridge Ybk of Eur Legal Studies 373, 374–375Google Scholar.

¹⁸ Borrás (n 17) [8].

¹⁹ eg the UK: Report from the House of Lords Select Committee (n 5) 37 (minutes of evidence).

²⁰ The Spanish and French delegations, in particular, favoured the inclusion of child custody: Borrás (n 17) [8]; McEleavy (n 17) 892–893.

²¹ See, eg, Jänterä–Jareborg, M, ‘A European Family Law for Cross–Border Situations—Some Reflections Concerning the Brussels II Regulation and its Planned Amendments’ (2002) 4 Ybk of Private Intl L 67Google Scholar, 72; Douglas, G and Lowe, N, ‘Annual Review of International Family Law’ [2002] The Intl Survey of Family L 1Google Scholar, 10. Ultimately the EU institutions accepted the need to guarantee ‘equality of treatment for all children, thus taking into account social realities, such as the diversification of family structures’: COM (2001) 505 final (6 September 2001) 4. Initially the Commission proposed a separate stand–alone Regulation on parental responsibility (see Proposal for a Council Regulation on jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility [2001] OJ C332 E/269); however, it was subsequently accepted that it would be better to replace Regulation 1347/2000 with a single composite Regulation (see Proposal for a Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility repealing Regulation (EC) No 1347/2000 and amending Regulation (EC) No 44/2001 in matters relating to maintenance COM (2002) 222 final/2, 17 May 2002).

²² Initiative of the French Republic with a view to adopting a Council Regulation on the mutual enforcement of judgments on rights of access to children [2000] OJ C234/7.

²³ The French access proposal was incorporated into the Commission's 2002 proposal for a composite Regulation (n 21).

²⁴ See further McEleavy, P, ‘The New Child Abduction Regime in the European Union: Symbiotic Relationship or Forced Partnership?’ (2005) 1 J of Private Intl L 5CrossRefGoogle Scholar. Ultimately, the scheme set down in arts 10 and 11 did not go as far as had been envisaged in the 2002 proposal: instead of introducing an entirely separate EU regime, arts 10 and 11 provided for the continued application in an intra–EU context of the 1980 Hague Child Abduction Convention, albeit operating alongside some additional EU law requirements.

²⁵ Arts 41 and 42.

²⁶ Commission (EU), ‘Maintenance Obligations’ (Green Paper) COM (2004) 254 final, 15 April 2004.

²⁷ ibid 13. See also art 3(d) Maintenance Proposal (n 32).

²⁸ Commission (EU) (n 26) 25 ff.

²⁹ ibid 17 ff.

³⁰ ibid 26.

³¹ ibid 18–19.

³² Commission (EU), ‘Proposal for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations’ COM (2005) 649 final, 15 December 2005.

³³ Commission (EU), ‘Applicable Law and Jurisdiction in Divorce Matters’ (Green Paper) COM (2005) 82 final, 14 March 2005.

³⁴ ibid 3.

³⁵ Commission (EU), ‘Proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters’ COM (2006) 399 final, 17 July 2006.

³⁶ Commission (EU), ‘Green Paper on Conflict of Laws in Matters Concerning Matrimonial Property Regimes, Including the Question of Jurisdiction and Mutual Recognition’ COM (2006) 400 final, 17 July 2006.

³⁷ Council (EU), ‘Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an Area of Freedom, Security and Justice’ [1999] OJ C19/1 [41].

³⁸ Council (EU), ‘Tampere European Council 15 and 16 October 1999; Presidency Conclusions’ [34] (available at <http://www.europarl.europa.eu/summits/tam_en.htm>).

³⁹ See McGlynn (n 3) 152; Stalford, H and Donnelly, E, ‘Brussels II Revisited – An Overview of Proposed Amendments’ [2002] Family L 904Google Scholar, 904; P McEleavy, ‘Brussels II bis: The Communitarisation of Family Law Continues’ [2004] Irish J of Family L (2) 14, 14.

⁴⁰ Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations [2009] OJ L7/1. Ireland participated in the adoption of this Regulation from the outset (see Recital (46)) and the UK has since communicated its intention to ‘opt in’: see Commission Decision of 8 June 2009 on the intention of the United Kingdom to accept Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations [2009] OJ L149/73.

⁴¹ See Council (EU), ‘Press Release, 2873rd Council Meeting, Justice and Home Affairs, Luxembourg, 5–6 June 2008’ C/08/146, 9956/08 (Presse 146). The UK and Irish governments had previously communicated their intention to ‘opt out’ of Rome III (in October and November 2006): see Hodson, D, ‘Rome III: Subsidiarity, Proportionality and the House of Lords’ [2007] Intl Family L 32Google Scholar, 32.

⁴² Commission (EU), ‘Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions—Justice, Freedom and Security in Europe since 2005: An Evaluation of the Hague Programme and Action Plan’ SEC (2009) 766 final (10 June 2009) 103; Council (EU), ‘The Stockholm Programme—An Open and Secure Europe Serving and Protecting the Citizens’ 17024/09 (2 December 2009) 25.

⁴³ Commission (EU), ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions—Delivering an Area of Freedom, Security and Justice for Europe's Citizens: Action Plan Implementing the Stockholm Programme’ COM (2010) 171 final (20 April 2010) 19.

⁴⁴ See art 20 TEU and arts 326-334 TFEU.

⁴⁵ Council Decision of 12 July 2010 authorising enhanced cooperation in the area of the law applicable to divorce and legal separation [2010] OJ L189/12.

⁴⁶ See Commission (EU), ‘Proposal for a Council Regulation (EU) implementing enhanced cooperation in the area of the law applicable to divorce and legal separation’ COM (2010) 105 final/2, 30 March 2010. The fourteen participating Member States (at present) are Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain. The proposal is concerned with applicable law only and the jurisdictional elements of the original draft Rome III Regulation (n 35) are omitted.

⁴⁷ Commission (EU) (n 42) 97, 99 103; also Commission (EU), ‘Communication from the Commission to the European Parliament and the Council: An Area of Freedom, Security and Justice Serving the Citizen’ COM (2009) 262 final (10 June 2009) 10, 31.

⁴⁸ See McGlynn (n 3) 182–183.

⁴⁹ ibid; also Boele–Woelki, K, ‘The Principles of European Family Law: its Aims and Prospects (2005) 1 Utrecht L Rev 160CrossRefGoogle Scholar, 163 (available at <http://www.utrechtlawreview.org>).

⁵⁰ See <http://www.ceflonline.net>; also Boele–Woelki (n 49) 164–166.

⁵¹ Antokolskaia, M, ‘The Harmonisation of Family Law: Old and New Dilemmas’ [2003] Eur Rev of Private L 28Google Scholar, 48; Boele–Woelki (n 49) 166–.

⁵² See McGlynn (n 3) 183; P McEleavy, ‘First Steps in the Communitarisation of Family Law: Too Much Haste, Too Little Reflection?’ in K Boele–Woelki (ed), Perspectives for the Unification and Harmonisation of Family Law in Europe (European Family Law Series, Intersentia, Antwerp 2003) (hereafter Boele–Woelki (2003)) 510; Örücü, E, ‘Viewing the Work in Progress of the Commission on European Family Law’ (2005) 7 Intl L FORUM du droit international 219CrossRefGoogle Scholar, 227; Boele–Woelki, K, ‘The Working Method of the Commission on European Family Law’ (2006) 6 Eur J of L Reform 119Google Scholar, 121 (hereafter Boele–Woelki (2006)).

⁵³ See Council (EU), ‘The Hague Programme: Strengthening Freedom, Security and Justice in the European Union’ [2005] OJ C53/1, 13 where the Council indicated that rules ‘of uniform substantive law’ might be introduced as ‘accompanying measures’ to the family-related private international law instruments. In a recent communication, the Commission further indicated that ‘[m]utual recognition might also consist of approximating substantive law in certain areas’ and gave the example of ‘standards for decisions relating to parental responsibility’: Commission (EU) (n 42) 103. The Commission has also recently published a report which recommends harmonization of adoption laws: see the ‘Synthesis Report’ on Adoption Procedures (pp. 204–), available at: <http://ec.europa.eu/civiljustice/news/whatsnew_en.htm>. It is also noteworthy that following the coming into effect of the Lisbon Treaty, art 81 TFEU (ex art 65 EC) provides that ‘judicial cooperation … may include the adoption of measures for the approximation of the laws and regulations of the Member States’ (art 81(1) TFEU).

⁵⁴ N Dethloff, ‘Arguments for the Unification and Harmonisation of Family Law in Europe’ in Boele–Woelki (2003) (n 52) 51–53.

⁵⁵ Boele–Woelki, K, ‘The European Agenda: an Overview of the Current Situation in the Field of Private International Law and Substantive Law’ [2006] Intl Family L 149Google Scholar, 154; Örücü (n 52) 222–.

⁵⁶ Boele–Woelki ibid 149.

⁵⁷ See Boele–Woelki (2006) (n 52) 123 arguing that Brussels II(bis) ‘makes it necessary to harmonise the substantive divorce laws in Europe as well’.

⁵⁸ [2006] NIPR 101 (21 December 2005), discussed by P Mostermans, ‘The Impact and Application of the Brussels II bis Regulation in the Netherlands’ in K Boele–Woelki and C González Beilfuss (eds), Brussels II bis: Its Impact and Application in the Member States (European Family Law Series, Intersentia, Antwerp, 2007) 229.

⁵⁹ ibid.

⁶⁰ See Shannon, G, ‘Brussels II bis: Its Impact in Ireland’ (2006) 100(5) Gazette, L Society of Ireland 55Google Scholar, 55; G Shannon, ‘The Impact and Application of the Brussels II bis Regulation in Ireland’ in Boele–Woelki and González Beilfuss (n 58) 148–149; R McNamara and F Martin, ‘Brussels Calling: The Unstoppable Europeanisation of Irish Family Law’ [2006] Irish J of Family L (3) 8, 9.

⁶¹ 467 Dáil Debates (27 June 1996).

⁶² See also 148 Seanad Debates (10 October 1996).

⁶³ See V van den Eeckhout, ‘Communitarization of International Family Law as Seen from a Dutch Perspective: What is New?—A Prospective Analysis’ in A Nuyts and N Watté (eds), International Civil Litigation in Europe and Relations with Third States (Bruylant, Brussels, 2005) 530; Schack, H, ‘The New International Procedure in Matrimonial Matters in Europe’ (2002) 4 Eur J of L Reform 37CrossRefGoogle Scholar, 38.

⁶⁴ The following declaration was annexed to the Convention (n 16): ‘Notwithstanding the provisions of this Convention, Ireland may maintain the jurisdiction which it has to refuse to recognise a divorce obtained in another Member State where that divorce has been obtained as a result of the party, or parties, deliberately misleading a court of the State in question in relation to its jurisdictional requirements such that recognition of the divorce would not be compatible with the Constitution of Ireland’ ([1998] OJ C221/17).

⁶⁵ It was apparently read into the Council minutes, but it is difficult to see how this can have any legal effect: see Shannon, G and Kennedy, T, ‘Jurisdiction and Recognition and Enforcement Issues in Proceedings Concerning Parental Responsibility under the Brussels II Convention’ [2000] Intl Family L 111Google Scholar, 119.

⁶⁶ [2005] IEHC 335, [2005] 4 IR 552 (Irish HC).

⁶⁷ [2005] 4 IR 552, 561.

⁶⁸ Twenty–five out of the 26 participant Member States allow divorce (all except Malta). Denmark is not bound by Brussels IIbis (see Recital (31)).

⁶⁹ For an outline of the different Member State divorce laws, see Commission (EU), ‘Commission Staff Working Document: Annex to the Proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as Regards Jurisdiction and Introducing Rules Concerning Applicable Law in Matrimonial Matters—Impact Assessment’ SEC (2006) 949 (17 July 2006) 32–33.

⁷⁰ This was certainly the case in England and Ireland. In England, the liberalization of divorce-recognition (via the Recognition of Divorces and Legal Separations Act 1971) occurred in tandem with the liberalization of domestic divorce law under the Divorce Reform Act 1969. In Ireland, the divorce recognition rules have always been restrictive; however, they eased somewhat around the same time as divorce was being introduced (1995): see Domicile and Recognition of Foreign Divorces Act 1986; W v W [1993] 2 IR 476 (Irish SC) and McG v W [1999] IEHC 77, [2000] 1 IR 96 (Irish HC).

⁷¹ At least where the foreign judgment would be recognized locally: J Fawcett (ed), Declining Jurisdiction in Private International Law (Oxford Monographs in Private International Law, Clarendon Press, Oxford 1995) 171, 196, 248, 337, 374; Dickson, B, ‘The Reform of Private International Law in the Federal Republic of Germany’ (1985) 34 ICLQ 231, 244CrossRefGoogle Scholar; McClean, D, ‘De Conflictu Legum: Perspectives on Private International Law at the Turn of the Century: General Course on Private International Law’ (2000) 282 Recueil des Cours de l'Académie de Droit International 191Google Scholar. In France, however, for many years, the courts would refuse to defer to the court first-seised where a non-consenting French citizen was involved: see Report from the House of Lords Select Committee (n 5) 12 (minutes of evidence).

⁷² For a summary of Member State choice-of-law rules in divorce, see Commission (EU), ‘Commission Staff Working Paper: Annex to the Green Paper on Applicable Law and Jurisdiction in Divorce Matters’ SEC (2005) 331 (14 March 2005) 17–18. Many of the Member States applying foreign law in divorce were also party to the 1973 Hague Convention on Law Applicable to Maintenance Obligations (Estonia, France, Germany, Greece, Italy, Lithuania, Luxembourg, Netherlands, Poland, Portugal, Spain) and would also apply foreign law in maintenance matters. While under art 4 of that Convention, the law of the habitual residence of the maintenance creditor would apply, under art 8, the law governing divorce would also govern the maintenance application in the divorce proceedings.

⁷³ L Collins and others, Dicey, Morris & Collins: The Conflict of Laws (14^th edn, Thomson Sweet & Maxwell, London, 2006) 877.

⁷⁴ S v S [1997] 2 FLR 100 (F) 112; Gadd v Gadd [1984] 1 WLR 1435 (CA) 1441.

⁷⁵ See s 5(6) Domicile and Matrimonial Proceedings Act 1973 (UK); s 2A(4) and s 5(2) Family Law Act 1986 (UK); de Dampierre v de Dampierre [1988] AC 92 (HL); O'K v A [2008] IEHC 243 (Irish HC).

⁷⁶ On the differences between the art 15 transfer mechanism and forum non conveniens, see C Clarkson and J Hill, The Conflict of Laws (3^rd edn OUP, Oxford, 2006) 392–393.

⁷⁷ Art 19 Regulation 2201/2003 (n 11); art 27 Regulation 44/2001 (n 14); art 12 Regulation 4/2009 (n 40).

⁷⁸ The Commission's 2006 ‘Rome III’ draft Regulation (n 35) proposed harmonized lex causae rules in relation to grounds for divorce (as does the new ‘enhanced cooperation’ proposal (n 46)), while art 15 of the Maintenance Regulation 4/2009 (n 40) provides that applicable law in maintenance matters shall be determined in accordance with the 2007 Hague Protocol on the Law Applicable to Maintenance Obligations, in the Member States bound by that Protocol. The provisions of the Maintenance Regulation and of the Hague Protocol are not yet applicable, although the Protocol has been approved on behalf of the EU (excluding the UK): see Council Decision of 30 November 2009 on the conclusion by the European Community of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations [2009] OJ L331/17.

⁷⁹ See Hodson, D and Green, M, ‘Has the SFLA Code Met Its Waterloo?’ [2001] SJ 214Google Scholar, 217; McNamara and Martin (n 60) 12, 14; Truex, D, ‘Brussels II—Beware!’ [2001] Family L 233Google Scholar, 233; Barker, S and Smith, S, ‘A Response to Brussels II—A View from Scotland’ [2002] Intl Family L 44Google Scholar, 44; Mostyn, N, ‘Brussels II—The Impact on Forum Disputes’ [2001] Family L 359Google Scholar.

⁸⁰ Stalford and Donnelly (n 39) 905.

⁸¹ See McEleavy, P, ‘The Communitarization of Divorce Rules: What Impact for English and Scottish Law?’ (2004) 53 ICLQ 605CrossRefGoogle Scholar, 626.

⁸² See European Policy Evaluation Consortium (EPEC), ‘Study to Inform a Subsequent Impact Assessment on the Commission Proposal on Jurisdiction and Applicable Law in Divorce Matters: Final Draft Report to the European Commission DG Justice, Freedom and Security’ (April 2006) 22–23.

⁸³ See Bradley, C, ‘European Family Law: Practice Issues I’ [2008] Intl Family L 85, 86–87Google Scholar; McNamara and Martin (n 60) 14; Resolution, ‘Response of Resolution to the EU Green Paper on Applicable Law and Jurisdiction in Divorce Matters’ (2005) [2], [7]; Stewart, J and Perez-Cedillo, A, ‘Anglo-Spanish Divorce’ [2007] Family L J (March) 2Google Scholar, 5; Copson, J, Berger, A and Boiche, A, ‘Cross-Border Matrimonial Law’ [2006] Family L J (October) 3Google Scholar.

⁸⁴ See (n 72): the application of a party's (or the parties') national law or the law of a party's (or the parties') habitual residence, may result in the application of the very law which the forum shopping was intended to avoid.

⁸⁵ Commission (EU) (n 72) 17–18.

⁸⁶ See (n 72).

⁸⁷ Commission (EU) (n 72) 17–18.

⁸⁸ Under art 3 Regulation 2201/2003 (n 11).

⁸⁹ Stalford and Donnelly (n 39) 905.

⁹⁰ See text to (n 58). Where a Member State (like the Netherlands) sees access to divorce as a human right, this might influence the court's interpretation of the jurisdictional requirements. Certainly, the practice of ‘result-selection’ is widely recognized (see Fawcett, J, ‘Result Selection in Domicile Cases’ (1985) 5 OJLS 378CrossRefGoogle Scholar) and commentators have expressed the view that the interpretation of ‘residence’ and ‘habitual residence’ has been profoundly affected by policy considerations: see Rogerson, P, ‘Habitual Residence: the New Domicile?’ (2000) 49 ICLQ 86CrossRefGoogle Scholar, 87–88; McClean, JD, ‘The Meaning of Residence’ (1962) 11 ICLQ 1153CrossRefGoogle Scholar, 1153; Hall, C, ‘Cruse v Chittum: Habitual Residence Judicially Explored’ (1975) 24 ICLQ 1CrossRefGoogle Scholar, 2. See also Mark v Mark [2005] UKHL 42, [2006] 1 AC 98, 111–113. The ECJ has interpreted ‘habitual residence’ in the context of the child provisions of Brussels IIbis (Case C-523/07 A [2009] ECR I-2805); however, the guidelines laid down are sufficiently flexible as to permit of a relatively liberal construct. Moreover, the ECJ's judgment in Hadadi v Hadadi suggests that restraint of forum shopping need not be prioritized in interpreting the Brussels IIbis connecting factors (in that case ‘nationality’): Case C-168/08 Hadadi v Hadadi [2009] EUECJ (16 July 2009) [57].

⁹¹ Report from the House of Lords Select Committee (n 5) 17 (minutes of evidence).

⁹² Recital (8); art 1(3).

⁹³ Under art 5(2) of Regulation 44/2001 (n 14) (and art 3(c) of Regulation 4/2009 (n 40)), the court having jurisdiction in the divorce matter also has ancillary jurisdiction over maintenance. Courts may also have ancillary jurisdiction over other financial relief matters as a matter of domestic law—certainly this is the case in England and Ireland: Part II Matrimonial Causes Act 1973 (UK); Part III Family Law (Divorce) Act 1996 (Irl).

⁹⁴ See D Martiny, ‘Divorce and Maintenance Between Former Spouses—Initial Results of the Commission on European Family Law’ in Boele–Woelki (2003) (n 52). Of course, as indicated above, lex causae rules may sometimes result in the non-application of local financial rules, but there is still plenty of scope for forum shopping: see Copson, Berger and Boiche (n 83); Stewart and Perez-Cedillo (n 83); Kingston, S and Fitzsimmons, F, ‘Miller and McFarlane—The International Aspects’ [2006] Family L J (October) 16Google Scholar.

⁹⁵ M v M [2007] EWHC 1404 (fam), [2007] 2 FLR 1010 provides a good illustration of the extremes of behaviour that may be prompted by an awareness of different financial provision laws: in this case, a Greek father who had consented to his children being brought to England, subsequently brought a Hague Child Abduction Convention application upon discovering the potential financial consequences of an English divorce.

⁹⁶ Part III Matrimonial and Family Proceedings Act 1984 (UK); Part III Family Law Act 1995 (Irl).

⁹⁷ See eg Holmes v Holmes [1989] Fam 47, 58–59 (CA). However, a more liberal approach is suggested in Agbaje v Akinnoye-Agbaje [2010] UKSC 13.

⁹⁸ Maintenance orders from other Member States are entitled to recognition under Regulation 44/2001 (n 14). See Agbaje (n 97) [55]–[57].

⁹⁹ See the facts of Dombrowicz v Gray [2001] ScotCS 103; ED v SGD [2001] ScotCS 155.

¹⁰⁰ See eg the facts of Re R [2003] EWHC 1968 (fam), [2004] 1 FLR 216.

¹⁰¹ See Stewart and Perez-Cedillo (n 83) 2; also Munro v Munro [2007] EWHC 3315 (fam), [2008] 1 FLR 1613; Williamson v Williamson [2009] ScotSC 18, [2009] Family Law Reports (Scotland) 44.

¹⁰² See TMC Asser Instituut, ‘Practical Problems Resulting from the Non-Harmonization of Choice of Law Rules in Divorce Matters: Final Report’, JAI/A3/2001/04 (December, 2002) 14 & 44 (available at <http://ec.europa.eu/justice/doc_centre/civil/studies/doc_civil_studies_en.htm>). The common language would make England an obvious destination for collaborative forum shopping by Irish spouses (see Report from the House of Lords Select Committee (n 5) 3, 12 (minutes of evidence)) as would the application of the lex fori and the familiarity of the legal system.

¹⁰³ See Law Commission, ‘Grounds for Divorce’ (Law Com No 192, 1990) 20.

¹⁰⁴ There are numerous examples of such action in the older case-law: eg Bonaparte v Bonaparte [1892] P 402.

¹⁰⁵ S Cretney, J Masson and R Bailey-Harris, Principles of Family Law (7^th edn, Thomson Sweet & Maxwell, London, 2003) 2–4, 93–97.

¹⁰⁶ Provisional figures for England and Wales for 2008 indicate that 85,860 marriages were celebrated in which at least one party had previously been married (representing 37 per cent of all marriages): see <http://www.statistics.gov.uk/cci/nugget.asp?id=322>.

¹⁰⁷ This is underscored in particular by the demand for same-sex marriage: Wilkinson v Kitzinger [2006] EWHC 2022 (fam), [2007] 1 FLR 295; also Krause, H, ‘Marriage for the New Millennium: Heterosexual, Same Sex—or Not at All?’ (2000–01) 34 Family L Q 271Google Scholar, 274.

¹⁰⁸ Sumner, I, ‘Dissolution of Registered Partnerships: Excursion in Conversion’ [2004] Intl Family L 231Google Scholar.

¹⁰⁹ ibid.

¹¹⁰ See Law Commission (n 103) 15: in England, the Law Commission rejected ‘separation’ as a ground for divorce in part because of the likelihood of perjury and the difficulty of proving the truth of the assertion.

¹¹¹ [2000] IEHC 6, [2000] 1 IR 457.

¹¹² ie there is no need to show that the parties lived in separate residences.

¹¹³ This is arguably the case in England under the ‘special procedure’: see J Masson, R Bailey–Harris and R Probert, Cretney: Principles of Family Law (8^th edn, Thomson Sweet & Maxwell, London, 2008) 291.

¹¹⁴ Portugal and Estonia already provide administrative divorce: see the European Judicial Network website <http://ec.europa.eu/civiljustice/index_en.htm>.

¹¹⁵ McQuaid, K, ‘Divorce in the European Union: Should Ireland Recognize Foreign Divorces?’ (2006) 16 Transnational L & Contemporary Problems 373Google Scholar, 387.

¹¹⁶ Stalford and Donnelly (n 39) 905.

¹¹⁷ Many relevant articles have been published in practitioners' journals: see Copson, Berger and Boiche (n 83); Stewart and Perez–Cedillo (n 83); Kingston and Fitzsimmons (n 94). The establishment of the European Judicial Network website (n 114) also makes the law of other Member States much more accessible.

¹¹⁸ [2006] UKHL 24, [2006] 2 AC 618.

¹¹⁹ C Davies, ‘Three-Year Wife's £5m divorce “a meal ticket for life”’ Daily Telegraph (London 31 January 2006); D Rowan, ‘Till Dosh Do Us Part’ Sunday Times (London 9 October 2005).

¹²⁰ ‘For Richer and Poorer’ The Economist (USA edn, 3 March 2007); L Rogers, ‘Divorce—Do Women Win Too Much?’ New Statesman (London 19 February 2007).

¹²¹ eg <http://www.international–divorce.com/strategic_international_divorce.htm>.

¹²² eg Butler v Butler [1998] 1 WLR 1208 (CA).

¹²³ eg Ikimi v Ikimi [2001] EWCA Civ 873, [2002] Fam 72.

¹²⁴ eg Gaffney v Gaffney [1975] IR 133 (Irish SC).

¹²⁵ Member States are now obliged to accept and exercise the divorce jurisdiction conferred by Regulation 2201/2003 (n 11), unless another Member State is already seised, in which case jurisdiction must be declined (art 19). The discretion to decline jurisdiction (forum non conveniens) is probably also inapplicable even if the ‘conflict’ is with a third country and not with another Member State (see n 140 and n 141). Member State divorces are automatically recognizable subject to a narrow set of defences which pay no regard to the appropriateness of the granting forum (arts 22 and 24).

¹²⁶ See Thorpe, M, ‘London—The Divorce Capital of the World’ [2009] Family L 21Google Scholar.

¹²⁷ See text at (n 35), (n 40) and (n 44).

¹²⁸ Proposed art 20c (2006) draft Rome III Regulation (n 35) (also Recital (12) to the more recent ‘enhanced cooperation’ proposal (n 46)).

¹²⁹ Hartley, T, ‘Pleading and Proof of Foreign Law: The Major European Systems Compared’ (1996) 45 ICLQ 271CrossRefGoogle Scholar, 275, 282.

¹³⁰ ibid 292; Report from the House of Lords European Union Committee ‘Rome III—Choice of Law in Divorce’ HLP 272 (2005–06) 52^nd Report 8 (minutes of evidence).

¹³¹ Hartley (n 129) 274–275, 282–285.

¹³² Report from the House of Lords European Union Committee (n 130) 17–18 (minutes of evidence).

¹³³ Proposed art 3a (2006) draft Rome III Regulation (n 35).

¹³⁴ Proposed art 20a(1)(d). Indeed, if the current ‘enhanced cooperation’ proposal (n 46) is adopted, opportunities for collaborative forum shopping will increase, insofar as the number of Member States allowing the parties to choose the lex fori will expand (see art 3(1)(d) of the new proposal).

¹³⁵ Under the 2007 Hague Protocol on Law Applicable to Maintenance Obligations (which will govern applicable law under art 15 of Regulation 4/2009 (n 40)), while the law of the creditor's habitual residence usually applies (art 3), this law may be disapplied in the context of a spousal claim where the law of another state has a closer connection to the marriage (art 5).

¹³⁶ See Butler (n 122) 1221; Krenge v Krenge [1999] 1 FLR 969 (F) 981–982.

¹³⁷ See Moore v Moore [2007] EWCA Civ 361, [2007] 2 FLR 339, 343; A Bell, Forum Shopping and Venue in Transnational Litigation (Oxford Private International Law Series, OUP, Oxford, 2003) 41.

¹³⁸ This question was raised by the formulation used in art 7 Regulation 1347/2000 (and reproduced in art 6 Regulation 2201/2003): see the judgment in Sundelind Lopez (n 139) [13].

¹³⁹ Case C–68/07 [2007] ECR I–10403.

¹⁴⁰ Case C–281/02 [2005] ECR I–1383. In Owusu the ECJ ruled that English courts could not use the doctrine of forum non conveniens to decline Brussels I jurisdiction in favour of a more appropriate third–country court. Commentators have argued that courts may still grant a stay where prior proceedings are already pending in a third–country court (see Harris, J, ‘Stays of Proceedings and the Brussels Convention’ (2005) 54 ICLQ 933CrossRefGoogle Scholar, 946–947; Peel, E, ‘Forum Non Conveniens and European Ideals’ [2005] LMC LQ 363, 375–377Google Scholar) but this is far from certain (see Goshawk Dedicated v Life Receivables [2009] IESC 7).

¹⁴¹ See Jarmain, S, ‘Staying Matrimonial Proceedings—a Thing of the Past?’ [2007] Family L 429Google Scholar; Karsten, I, ‘The State of International Family Law Issues: A View from London’ [2009] Intl Family L 35Google Scholar arguing that the Owusu authority applies in the Brussels IIbis context (and to the same effect, the Irish High Court decision in O'K v A (n 75)). However, English courts, seised of divorce proceedings under Brussels IIbis, have continued to grant discretionary stays in favour of third countries: see eg Ella v Ella [2007] EWCA Civ 99, [2007] 2 FLR 35; JKN v JCN [2010] EWHC 843 (fam).

¹⁴² [2009] UKSC 10. The UK Supreme Court found that art 12 (on prorogation) did apply to a child habitually resident in Pakistan, where the High Court and Court of Appeal had taken the view that Brussels IIbis was inapplicable in such circumstances. See also McEleavy, P, ‘Brussels II bis: Matrimonial Matters, Parental Responsibility, Child Abduction and Mutual Recognition’ (2004) 53 ICLQ 503CrossRefGoogle Scholar, 507.

¹⁴³ Beevers, K and McClean, D, ‘Intra-UK Jurisdiction in Parental Responsibility Cases: Has Europe Intervened?’ [2005] Intl Family L 129Google Scholar; J Fawcett and J Carruthers, Cheshire, North & Fawcett: Private International Law (14^th edn OUP, Oxford, 2008) 1085; Lowe, N, ‘Negotiating the Revised Brussels II Regulation’ [2004] Intl Family L 205, 208–209Google Scholar.

¹⁴⁴ See the text of what was then art 65 EC (before the Lisbon Treaty came into force).

¹⁴⁵ S v D [2006] ScotSC 53, 2007 SLT (Sh Ct) 37 but see also Re C and C [2005] NIFam 3; Re ESJ A Minor [2008] NIFam 6; B v B [2008] ScotSC 39, 2009 SLT (Sh Ct) 24.

¹⁴⁶ Resolution (n 83) [5], [20]: the solicitors' representative association estimated that over half of the international family cases in England and Wales concerned third countries (particularly Commonwealth countries and former British colonies). See also Beaumont, P and Moir, G, ‘Brussels Convention II: A New Private International Law Instrument in Family Matters for the European Union or the European Community?’ (1995) 20 EL Rev 268Google Scholar, 284.

¹⁴⁷ Mostyn (n 79) 365.

¹⁴⁸ See eg the facts of Miss J v Dr P [2007] EWHC 704 (fam).

¹⁴⁹ Of course, this analysis assumes that an action falling outside of the material scope of Brussels I may qualify as a ‘related action’ and this is far from certain (see Moore (n 137) 356–358 where the court appeared to assume that art 28 could not be invoked where the earlier action fell outside of the scope of Brussels I). Art 28 Regulation 44/2001 (n 14) is replicated in art 13 Regulation 4/2009 (n 40).

¹⁵⁰ See Bush v Bush [2008] EWCA Civ 865 [36] where the Spanish judge had granted a stay under art 28 Regulation 44/2001 (n 14) where it appears stays should have been ordered under art 27 Regulation 44/2001 and art 19 Regulation 2201/2003 (n 11); Wermuth v Wermuth (No 2) [2003] EWCA Civ 50, [2003] 1 FLR 1029, 1032 where (at first instance) maintenance pending suit was awarded, purportedly under art 12 Regulation 1347/2000 (n 1) when it should have been awarded (if at all) under art 31 of Regulation 44/2001 (McEleavy (n 81) 631).

¹⁵¹ See McEleavy (n 81) 626–627; McNamara and Martin (n 60) 9, 12; Wermuth v Wermuth (No 1) [2002] EWHC 3049 (fam), [2003] 1 FLR 1022, 1023; LK v K (No 3) [2007] EWHC 3281 (fam), [2007] 2 FLR 741, 750. As Lowe (n 143) 209 points out, there is not the same risk of a ‘race to court’ in parental responsibility matters because in this context, the jurisdictional bases are arranged in a hierarchy (and not as alternatives) and the incidence of parallel competence is thus much reduced.

¹⁵² See Resolution, ‘Code of Practice’ <www.resolution.org.uk>; (also Bradley (n 83) 86). In Ireland, under s 6–7 Family Law (Divorce) Act 1996, practitioners are required to advise clients to consider the possibility of mediation.

¹⁵³ Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters [2008] OJ L136/3.

¹⁵⁴ Art 3(1)(a), first indent.

¹⁵⁵ Art 3(1)(b).

¹⁵⁶ Art 3(1)(a), fourth indent.

¹⁵⁷ Art 3(1)(a), second indent.

¹⁵⁸ Art 3(1)(a), third indent.

¹⁵⁹ Art 3(1)(a), fifth and sixth indents.

¹⁶⁰ eg Irish law (see text to n 102).

¹⁶¹ P Schlosser, ‘Report on the Convention on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters and to the Protocol on its Interpretation by the Court of Justice’ [1979] OJ C59/71, 87–; Case C–220/95 Van den Boogaard v Laumen [1997] ECR I–1147 [21]–[23].

¹⁶² Nott, S, ‘For Better or Worse? The Europeanisation of the Conflict of Laws’ (2002) 24 Liverpool L Rev 3CrossRefGoogle Scholar, 17.

¹⁶³ It is widely acknowledged that the new Brussels IIbis jurisdictional rules for parental responsibility matters (arts 8–9, 12–15) provided a more complete and coherent package than those laid down in Brussels II: Lowe (n 143) 209, 215; Kilkelly, U, ‘Annual Review of International Family Law’ [2005] The Intl Survey of Family L 1, 21–22Google Scholar.

¹⁶⁴ Art 3(d) of Regulation 4/2009 (n 40).

¹⁶⁵ Commission (EU) (n 36) 4, 7. See also Commission (EU) (n 47) 6 where the Commission committed itself to a general objective of improving consistency and the ‘fit’ between the different justice policies.

¹⁶⁶ Commission (EU) (n 36) 8. See Clarkson, C, ‘Matrimonial Property on Divorce: All Change in Europe’ (2008) 4 J of Private Intl L 421, 426–427CrossRefGoogle Scholar.

¹⁶⁷ Commission (EU) ‘Green Paper on the Review of Council Regulation (EC) No 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters’ COM (2009) 175 final (21 April 2009).

¹⁶⁸ ibid 4.

¹⁶⁹ Art 65 Regulation 2201/2003 (n 11).

¹⁷⁰ Council Regulation (EC) No 664/2009 of 7 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries concerning jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, and the law applicable to matters relating to maintenance obligations [2009] OJ L200/46.

¹⁷¹ Hodson, D, ‘The Dublin Four Jurisdictions Conference’ [2006] Intl Family L 4Google Scholar, 4 (referring to a conference speech by Monica Eckstrom of the Commission).

¹⁷² eg Barker and Smith (n 79) 44.

¹⁷³ eg de Boer, T, ‘Jurisdiction and Enforcement in International Family Law: A Labyrinth of European and International Legislation’ (2002) 49 Netherlands Intl L Rev 307CrossRefGoogle Scholar, 343–344.

¹⁷⁴ Art 8(2) (and subsequently art 7(2)) provided as follows: ‘As against a respondent who is not habitually resident and is not either a national of a Member State or, in the case of the United Kingdom and Ireland, does not have his “domicile” within the territory of one of the latter Member States, any national …' (emphasis added). This usage of ‘either’ is superfluous and grammatically incorrect. Furthermore, the word ‘in’ should appear after the term ‘habitually resident’.

¹⁷⁵ de Boer (n 173) 344.

¹⁷⁶ Compare art 12(1)(b) Regulation 2201/2003 with art 3(2)(b) Regulation 1347/2000.

¹⁷⁷ Bush (n 150), Re I (A Child) (n 142) (re acceptance); Hadadi (n 90) (re dual nationality).

¹⁷⁸ Lowe (n 143) 212; Shannon, G, ‘The Internationalisation of Irish Family Law’ (2005) 5 Judicial Studies Institute J 42Google Scholar, 64.

¹⁷⁹ McEleavy (n 24) 30–31. Regulation 2201/2003 is also criticized insofar as ‘superior interests’ is used in art 12 when ‘best interests’ was intended: Kilkelly (n 163) 21; Shannon (n 178) 58–59; Lowe (n 143) 208.

¹⁸⁰ E Vassilakakis and V Kourtis, ‘The Impact and Application of the Brussels II bis Regulation in Greece’ in Boele–Woelki and González Belifuss (n 58) 137–138.

¹⁸¹ McEleavy (n 142) 506.

¹⁸² On the pre–existing divorce law, see Shatter (n 9) 399–426; McNamara and Martin (n 60) 17; D Browne, ‘Recent Developments in the Law Governing the Recognition of Foreign Divorces’ [2002] Irish J of Family L (4) 8, and on the pre–existing child rules, W Binchy, Irish Conflicts of Law (Butterworths (Ireland), Dublin 1988) 321–346.

¹⁸³ Beevers and McClean (n 143) 129; Lowe, N, ‘The Family Law Act 1986—A Critique’ [2002] Intl Family L 39Google Scholar.

¹⁸⁴ Law Commission (and Scottish Law Commission), ‘Hague Convention on Recognition of Divorces and Legal Separations’ (Law Com No 34 (Scot Law Com No 16), 1970); Law Commission, ‘Family Law: Report on Jurisdiction in Matrimonial Causes’ (Law Com No 48, 1972); Law Commission (and Scottish Law Commission), ‘Private International Law: Recognition of Foreign Nullity Decrees and Related Matters’ (Law Com No 137 (Scot Law Com No 88), 1984).

¹⁸⁵ McNamara and Martin (n 60) 18.

¹⁸⁶ ibid.

¹⁸⁷ ibid; Barker and Smith (n 79) 44.

¹⁸⁸ McGlynn (n 15) 49.

¹⁸⁹ de Boer (n 173) 344.

¹⁹⁰ McEleavy (n 52) 522–523. Writing extra-judicially in 2002, Thorpe LJ also expressed concern at the ‘impoverished’ quality of the legislative process by which ‘Brussels regulations are created’: ‘Given that they are the product of intense negotiation between civil servants from 15 states equally empowered, the optimum outcome for those who are ultimately to be bound will inevitably be vulnerable to strategies and compromises as alliances are formed and influence shifts within the group.’ (Thorpe, M, ‘Fourth UK–German Family Law Conference at Trier, Germany, September 2002’ [2002] Intl Family Law 136Google Scholar, 137).

¹⁹¹ Commission (EU) (n 47) 6; Commission (EU) (n 42) 101.

¹⁹² The Commission issued an open invitation for written submissions on Rome III, and it convened a public meeting on 6 December 2005 (McNamara and Martin (n 60) 14).

¹⁹³ eg EPEC study on Rome III (n 82).

¹⁹⁴ available on the European Judicial Network website (n 114).

¹⁹⁵ See text to (n 146).

¹⁹⁶ See (n 140) and (n 141).

¹⁹⁷ Opinion 1/03 on Competence of the Community to conclude the new Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2006] ECR I–1145.

¹⁹⁸ ibid [116], [124], [143]–[144], [165]–[168].

¹⁹⁹ See text to (n 170).

²⁰⁰ Art 7(1) Regulation 2201/2003 (art 8(1) Regulation 1347/2000). For an outline of the applicable national bases of jurisdiction, see A Nuyts, ‘Study on Residual Jurisdiction (Review of the Member States’ Rules Concerning the “Residual Jurisdiction” of their Courts in Civil and Commercial Matters pursuant to the Brussels I and II Regulations): General Report' (Project No. JLS/C4/2005/07–30–CE)0040309/00–37, September 2007) 95–97 available at <http://ec.europa.eu/civiljustice/news/whatsnew_en.htm>.

²⁰¹ Art 6(b) Regulation 2201/2003 (art 7(b) Regulation 1347/2000).

²⁰² Art 8(2) Regulation 1347/2000 was to the same effect.

²⁰³ Report from the House of Lords Select Committee (n 5) 56 (minutes of evidence).

²⁰⁴ McEleavy (n 39) 16. See Nuyts (n 200) 92–94 for a summary of the residual jurisdictional bases in parental responsibility matters. Lowe (n 143) 215 also points to another possible negative side–effect of Brussels IIbis for third countries: he argues that the new six–week deadline for the processing of return applications in intra-EU child-abduction cases (art 11(3)) may result in the prioritization of EU applications ahead of other Hague applications; however, he concedes that the new deadline might equally have the effect of increasing efficiency in all cases (including applications from third countries).

²⁰⁵ Art 6(a) Regulation 2201/2003 (art 7(a) Regulation 1347/2000).

²⁰⁶ Art 3(1)(a), sixth indent and art 3(1)(b) Regulation 2201/2003 (art 2(1)(a), sixth indent and art 2(1)(b) Regulation 1347/2000).

²⁰⁷ Art 7(2) only benefits a ‘national of a Member State’.

²⁰⁸ Nuyts (n 200) 97.

²⁰⁹ McEleavy (n 81) 615.

²¹⁰ H Jessurun d'Oliviera, ‘The EU and a Metamorphosis of Private International Law’ in J Fawcett (ed), Reform and Development of Private International Law: Essays in Honour of Sir Peter North (OUP, Oxford 2002) 133–135; de Boer (n 173) 337; McEleavy (n 17) 908.

²¹¹ Lowe, N, ‘The Growing Influence of the European Union on International Family Law—a View from the Boundary’ (2003) 56 CLP 439Google Scholar, 455–456; McEleavy (n 52) 513, 520–525.

²¹² Nott (n 162) 12.

²¹³ See Mills, A, ‘The Private History of International Law’ (2006) 55 ICLQ 1CrossRefGoogle Scholar, 48.

²¹⁴ Regulation 4/2009 (n 40).

²¹⁵ Commission (EU) (n 32) arts 13–20.

²¹⁶ Beaumont sees the Maintenance Regulation as a ‘triumph’ for internationalism or ‘reverse subsidiarity’: Beaumont, P, ‘International Family Law in Europe—the Maintenance Project, the Hague Conference and the EC: a Triumph of Reverse Subsidiarity’ (2009) 73 Rabels Zeitschrift für ausländisches und internationales Privatrecht 509CrossRefGoogle Scholar.

²¹⁷ Council (EU) (n 42) 33; Commission (EU) (n 42) 102, 105.

²¹⁸ Text to n 191–192.

²¹⁹ Text to n 214–217.

²²⁰ ibid.

²²¹ Text to n 164–165.

²²² See (n 169).

²²³ See Fawcett and Carruthers (n 143) 1139–1140, noting the multiplicity of regional and international instruments in the child–law arena, and expressing concern at the risk of unnecessary duplication and overlap. Also Lowe (n 143) 215 observes that ‘[t]he point will surely come when the proliferation of international instruments will simply become counter–productive because of the ensuing complexity’. See also McEleavy (n 142) 504–505 arguing that Member State ratification of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, would have obviated the need for child law provisions at EU level, and would have had the advantage of ensuring that a single instrument governed private international law matters with regard to children at a global level.

²²⁴ The parental responsibility provisions of Brussels IIbis were to a large extent modelled on the 1996 Hague Parental Responsibility Convention; however, commentators have noted a number of subtle but potentially important differences between the two texts. Schulz, A, ‘The New Brussels II Regulation and the Hague Conventions of 1980 and 1996’ [2004] Intl Family L 22Google Scholar, 22 notes that while art 15 Brussels IIbis is based on arts 8 and 9 of the 1996 Convention, the criteria for determining the states eligible for transfer are slightly different. Lowe (n 143) 207 observes that while the 1996 Convention specifically excludes unborn children from its scope, Regulation 2201/2003 does not. Also while child abduction applications are governed by the 1980 Hague Convention under art 11(1) Brussels IIbis, the Regulation supplies a definition of ‘wrongful removal or retention’ (in art 2(11)) which is different to that laid down in art 3 of the 1980 Convention (see Lowe (n 143) 211; McEleavy (n 24) 28–).

²²⁵ Text to (n 47).

²²⁶ See (n 53).

²²⁷ Schwenzer, I, ‘Methodological Aspects of the Harmonisation of Family Law’ (2006) 6 Eur J of L Reform 145Google Scholar, 149–151; Dethloff (n 54) 60. See also Antokolskaia (n 51) 34.

²²⁸ Antokolskaia (n 51) 41; Dethloff (n 54) 59.

²²⁹ ibid.

²³⁰ Dethloff (n 54) 64; Örücü (n 52) 222.

²³¹ See Antokolskaia (n 51) 36–37.

²³² See Neuhaus, P, ‘Legal Certainty Versus Equity in the Conflict of Laws’ (1963) 28 L and Contemporary Problems 795CrossRefGoogle Scholar, 797.

²³³ See E Hasson, ‘Setting a Standard or Reflecting Reality? The ‘Role’ of Divorce Law, and the Case of the Family Law Act 1996' (2003) 17 Intl J of L, Policy and the Family 338, 358: ‘The range of opinions held by policy–makers regarding the role of divorce law in modern society, reflects the presence of a similar range of underlying “world views” or “value systems”’.

²³⁴ Martin, C and Théry, I, ‘The PACS and Marriage and Cohabitation in France’ (2001) 15 Intl J of L, Policy and the Family 135CrossRefGoogle Scholar, 155.

²³⁵ ibid.

²³⁶ See Commission (EU) (n 72) 13–14. It is important to note that while the CEFL participants would appear to have a preference for liberal ideologies (see eg Antokolskaia (n 51) 36, 41, 42 and K Boele–Woelki, ‘The Road Towards a European Family Law’ (1997) 1 Electronic J of Comparative L (1.1: November, 1997) 10 (available at <www.ejcl.org>)), implementation of the CEFL measures is not merely a matter of concern for the more socially conservative states. On the contrary, if the CEFL-recommended grounds for divorce were taken on board, Swedish law would become more restrictive insofar as a one–year separation period would be mandatory in non–consent divorces (see Boele–Woelki (n 49) 164).

²³⁷ Martiny (n 94) 543–544, 547–548.

²³⁸ ibid; D Bradley, ‘A Note on Comparative Family Law: Problems, Perspectives, Issues and Politics’ (2005) Oxford U Comparative L Forum 4. (available at <http://ouclf.iuscomp.org/articles/bradley2.shtml>), text before and after fn 57.

²³⁹ See text to (n 227)–(n 228).

²⁴⁰ CEFL participants have also made the point that the idea of a single family law ‘volksgeist’ is flawed and that individuals are often forced to live with an ideology which is at odds with their own view (see Antokolskaia (n 51) 42–44). This is true (and reflected in the words of Martin and Théry (text to n 235)). However, the existence of different viewpoints within individual Member States does not provide a justification for EU harmonization. On the contrary, a pan–European approach would have the effect of creating a much more widespread disharmony between individual views and the applicable family law.

²⁴¹ Bradley (n 238), text before and after fn 57, text before and after fn 66.

²⁴² ibid, text after fn 64 and fn 70.

²⁴³ Brussels II and Brussels IIbis were formally justified by reference to the needs of the internal market (see Recital (1) of each instrument) but commentators have pointed to the failure to substantiate this assertion: see Nott (n 162) 10; McGlynn (n 3) 163. It is noteworthy that under the Lisbon Treaty (art 81(2) TFEU) it is no longer necessary to justify a judicial cooperation measure by reference to the ‘internal market’.

²⁴⁴ Bradley (n 238) text before and after fn 88.

²⁴⁵ ibid, text after fn 33.

²⁴⁶ See text to (n 61)–(n 62) and (n 115) above.

²⁴⁷ See CEFL website (n 50).

²⁴⁸ See Antokolskaia (n 51) 31.

²⁴⁹ P Craig and G de Búrca, EU Law (4^th edn, OUP, Oxford, 2008) 133 ff.

²⁵⁰ See Report from the House of Lords European Union Committee (n 130) 6 (minutes of evidence); S Cretney, Family Law in the Twentieth Century (OUP, Oxford, 2003) 389.

²⁵¹ S Cretney, ‘Breaking the Shackles of Culture and Religion in the Field of Divorce?’ in K Boele–Woelki (ed), Common Core and Better Law in European Family Law (European Family Law Series, Intersentia, Antwerp 2005) 12.

²⁵² On the importance of an image of ideological-neutrality, see Weiler, J, ‘The Transformation of Europe’ (1990–1991) 100 Yale L J 2403CrossRefGoogle Scholar, 2476–2478.

²⁵³ Arts 22(a) and 23(a) Regulation 2201/2003. Of course, access and return orders are recognizable without any exequatur (arts 41 and 42)—and when the Maintenance Regulation comes into force, maintenance orders will be recognizable without any exequatur (when granted in Member States bound by the 2007 Hague Protocol).

²⁵⁴ Case C–7/98 Krombach v Bamberski [2000] ECR I–1935 [37]. As Meeusen points out ‘the public policy exception has a very important role as it is the only level at which Member States, through their courts, maintain some room for substantive evaluation as regards the recognition of foreign decisions applying family law rules’: see J Meeusen, ‘System Shopping in European Private International Law in Family Matters’ in J Meeusen et al (eds), International Family Law for the European Union (Intersentia, Antwerp, 2007) 273.

²⁵⁵ Art 81(3) TFEU. However, it should be noted that art 81(3) TFEU also allows the Council (acting unanimously) to adopt a decision removing the unanimity requirement for certain family law matters (having consulted the European Parliament, and provided no national parliament objects within six months of notification). On this ‘passerelle’ clause, see G de Groot and J Kuipers, ‘The New Provisions on Private International Law in the Treaty of Lisbon’ (2008) 15 Maastricht J of Eur and Comparative L 109, 112–114.

²⁵⁶ In the pre-Lisbon Treaty context, there was a widely-held view that the EU had no competence to legislate in matters of substantive family law: W Pintens, ‘Europeanisation of Family Law’ in Boele–Woelki (2003) (n 52) 22–25; McEleavy (n 52) 510; Scherpe, J, ‘The Gametes of a European Family Law’ [2008] Intl Family L 109Google Scholar, 109. However, some commentators did not accept that there was necessarily any competence barrier (see Antokolskaia (n 51) 33; Boele–Woelki (n 49) 162; Örücü (n 52) 222–). While the Lisbon Treaty refers to the ‘adoption of measures for the approximation of … laws’ (see n 53), it has been emphasized that this statement refers to approximating measures aimed at securing mutual recognition: see Report from the House of Lords European Union Committee ‘The Treaty of Lisbon: An Impact Assessment’ HLP 62–II (2007–08) 10th Report E112, replies to Q481. However, it must be also be remembered that the EU adopted Regulation 1347/2000 in circumstances where its competence to do so was questionable: see Schack (n 63) 40–41; McEleavy, P, ‘Free Movement of Persons and Cross–Border Relationships’ (2005) 7 Intl L FORUM du droit international 153CrossRefGoogle Scholar, 154; McGlynn (n 3) 163.

²⁵⁷ W Kennett, Enforcement of Judgments in Europe (Oxford Monographs in Private International Law, OUP, Oxford 2000) 6: McEleavy (n 17) 908. See also Report from the House of Lords Select Committee (n 5) [13] and [54] (report) and 45 (minutes of evidence): it was accepted that once a European proposal is sufficiently developed, its adoption becomes almost an inevitability.

²⁵⁸ ibid, also North, P, ‘Private International Law: Change or Decay?’ (2001) 50 ICLQ 477CrossRefGoogle Scholar, 504.

²⁵⁹ McEleavy (n 52) 518.

²⁶⁰ McEleavy (n 39) 17.

²⁶¹ See McNamara and Martin (n 60) 17; Browne (n 182).

²⁶² Report from the House of Lords Select Committee (n 5) [10], [55] and [61] (report). As noted by the Committee report, the Brussels II scheme also protected British and Irish nationals against exorbitant bases of divorce jurisdiction in other Member States: [17] and [55].

²⁶³ On the nature of the ‘Franco–German conflict’, see Report from the House of Lords Select Committee (n 5) [6] (report), 12 (minutes of evidence); McEleavy (n 17) 889–890; M Fallon, ‘The Value Added by a European Union Instrument on Jurisdiction and the Enforcement of Judgments in Matrimonial Causes in the Light of Existing Conventions—Report Requested by the Commission of the European Communities’ (Louvain-La-Neuve 1995) 25 (available at: <http://ec.europa.eu/justice/doc_centre/civil/studies/doc_civil_studies_en.htm>.

Fallon indicates that there were also some petitions to the European Parliament regarding English divorces, but these tended to involve foreign nationals seeking recognition of English divorces in their homelands—there was no suggestion of any pattern of difficulty for British nationals seeking divorce recognition in other Member States.

²⁶⁴ This is an aspect of the civil law tradition: McEleavy (n 17) 888.

²⁶⁵ eg under art 7(1) FamRÄndG in Germany: see Helms, T, ‘Die Anerkennung ausländischer Entscheidungen im Europäischen Eheverfahrensrecht’ [2001] Zeitschrift für das gesamte Familienrecht 257Google Scholar, 261; Dickson (n 71) 265.

²⁶⁶ Helms (n 265) 261. Of course, British and Irish nationals moving to Germany will benefit from this simplification.

²⁶⁷ With the adoption of the Civil Registration Act 2004, there is now an Irish civil–status register. However, only domestic divorces are registrable (ss 2, 59).

²⁶⁸ Fallon (n 263) 36. In many ways, the civilian bias of Brussels II and Brussels IIbis is an accident of history. These Regulations are based on the Brussels I Convention framework (Borrás Report (n 17) [6]) and as von Mehren has pointed out, that convention would have been much more heavily influenced by the common law, had the UK been at the negotiating table from the outset: von Mehren, A, ‘Theory and Practice of Adjudicatory Authority in Private International Law: a Comparative Study of the Doctrines, Policies and Practices of Common-and Civil-Law Systems: General Course on Private International Law’ (2002) 295 Recueil des Cours de l'Académie de Droit International 89Google Scholar.

²⁶⁹ See (n 71).

²⁷⁰ See (n 72).