Critical analysis and practical implications of the residual jurisdiction in Regulation 2019/1111 in parental responsibility matters

Abstract

The purpose of this work is to analyze the residual jurisdiction in art. 14 R. Brussels II ter. First, an explanation is provided of the uncertainties surrounding the relation of this provision with the Hague Convention 1996 and with the new art. 10 of the Regulation. Then, the practical implications that the residual jurisdiction have in the Spanish legal order are explained. Many times, our courts declare jurisdiction in accordance with our internal laws in cases where the connection of the minor with Spain is very weak, and where adjudication of jurisdiction does not respond to his/her best interests. This work argues that such case law is incompatible with the principle of proximity that informs these matters and with art. 2.1 of Spanish Law on Legal Protection of Minors. Finally, an analysis is made of the advantage that the introduction of forum necessitatis in the Regulation would have had.