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Brussels II bis applies the lis pendens and habitual residence rules in an inflexible manner that gives rise to injustices and in many cases harms the children's best interests. Torpedo suits are intended to frustrate ongoing family ADR procedures as well as criminal investigations against a parent or spouse for offences related to parental responsibility and the marital relationship. Where petitions involve actions for divorce and parental responsibility the courts do not first seek to ascertain the habitual residence of the children. In practice, English courts focus on the habitual residence of the respondent parent as a means of enforcing the lis pendens rule. Justice requires that judges assume a more active role by applying discretional stays in favour of glaringly appropriate jurisdictions. Brussels II bis should not be construed contrary to fundamental principles of justice.
By Ilias Bantekas, Professor of International Law, Brunel University School of Law
The full version of this article appears in the March 2014 issue of International Family Law.
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