Jurisdiction in matters of parental responsibility – Abduction of a child (ECJ)
The
jurisdiction of the court of a Member State that is seised of an action
relating to parental responsibility cannot be based on Article 10 of the
Brussels II bis Regulation in a case of abduction of a child to a third State.
Where a finding is made that the child now has his or her habitual residence in
a third State, the jurisdiction of the court will have to be determined in
accordance with the applicable international conventions or, in their absence,
in accordance with Article 14 of the Brussels II bis Regulation.
Facts
SS and MCP
are the father and mother of P, who was born in 2017 and has British
citizenship. SS and MCP, who are of Indian nationality and have leave to remain
in the United Kingdom, are not legally married but jointly hold parental
responsibility. In October 2018 the mother went to India with the child, who
has since lived there with her maternal grandmother and is therefore no longer
habitually resident in the United Kingdom.
For that
reason, the mother challenges the jurisdiction of the courts of England &
Wales, who must give a ruling on an application of the father, who is seeking
the return of the child to the United Kingdom and rights of access in an action
brought before the High Court of Justice (England & Wales), Family
Division.
The
referring court considers that it is necessary to determine whether it has
jurisdiction on the basis of the Brussels II bis Regulation.[1]
In that regard, that court states the following : at the time when it was
seised by the father, the child was habitually resident in India and was fully
integrated into an Indian social and family environment, her concrete factual
connections with the United Kingdom being non-existent, apart from citizenship;
further, the mother had at no time unequivocally accepted that the courts of
England &Wales had jurisdiction to deal with issues of parental
responsibility concerning P.
In
addition, the High Court of Justice states that the Brussels II bis Regulation
establishes the grounds of jurisdiction in cases of wrongful removal or
retention of a child, while adding that it harbours doubts, in particular, as
to whether Article 10 can apply to a conflict of jurisdiction between the
courts of a Member State and the courts of a third State.
The referring
court therefore asks the Court of Justice whether the Brussels II bis
Regulation must be interpreted as meaning that, if the finding is made that a
child has acquired, at the time when the application relating to parental
responsibility is brought, his or her habitual residence in a third State
following abduction to that State, the courts of the Member State where the
child was habitually resident immediately before his or her abduction, retain
their jurisdiction indefinitely.
Decision of
the Court
By its
judgment, the Court holds, first, that in relation to jurisdiction in a case of
child abduction, Article 10 of the Brussels II bis Regulation provides for
criteria that relate to a situation which is confined to the territory of the
Member States. The Court holds that that provision does not refer to the
possibility of residence being acquired in the territory of a Third State and
therefore does not apply to issues of conferral of jurisdiction in the case of
child abductions to a Third State.
The Court
states, second, that the EU legislature wanted to establish strict rules with
respect to child abductions within the European Union, but that it did not
intend those rules to apply to child abductions to a third State, since such
abductions were to be covered by, inter alia, international conventions such as
the 1996 Hague Convention on parental responsibility and child protection.[2]
In certain
circumstances (such as acquiescence or inaction on the part of a holder of
rights of custody), that convention provides for the transfer of jurisdiction
to the courts of the State of the child’s new habitual residence: the Court
notes in that regard that the transfer of jurisdiction would be deprived of
effect if the courts of a Member State were to retain their jurisdiction
indefinitely.
Third, the
Court further states that retention of jurisdiction for an unlimited period
would be incompatible with one of the fundamental objectives pursued by the
Brussels II bis Regulation, namely respecting the best interests of the child,
by giving priority for that purpose, to the criterion of proximity.
The Court
holds that when a child has been abducted to a third State, where that child
has, following that abduction, acquired a habitual residence, the court of a
Member State seised of an action concerning parental responsibility that finds
that it cannot rely on the Brussels II bis Regulation as the basis for its
jurisdiction, will have to establish jurisdiction on the basis of bilateral or
multilateral international conventions, or, in their absence, on the basis of
the rules of its national law. (Article 14 of the Brussels II bis Regulation)
The Court
concludes that Article 10 of the Brussels II bis Regulation is not applicable
to a situation where a finding is made that a child has acquired, at the time
when an application concerning parental responsibility is brought, his or her
habitual residence in a third State following abduction to that State.
(curia.europa.eu/photo:pixabay)
[1] 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 (OJ 2000 L 338, p. 1)
[2] The Convention on
Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in
Respect of Parental Responsibility and Measures for the Protection of Children,
signed at the Hague on 19 October 1996 (OJ 2008, L 151, p. 39).
Due to this, the mother disputes the English and Welsh courts' authority to rule on the father's application for the repatriation of the child to the United Kingdom and access rights in a case that was brought before the High Court of Justice (England and Wales), Family Division.
ReplyDelete