The courts of a Member State have jurisdiction - without any time limit - to render judgment in a parental dispute concerning a child who was habitually resident in that State and is wrongfully removed to a non-Member State where he or she acquires habitual residence, Advocate General Athanasios Rantos said in his Opinion delivered on Tuesday 23 February (Case C-603/20 PPU).
P is a three-year-old British girl whose parents, Indian nationals and holders of a residence permit in the United Kingdom, have joint parental responsibility for her. In August 2020, the child’s father appealed to a UK court to have the child returned after the mother fled with P to India, where the child has resided continuously since April 2019.
The UK court having referred the case to the Court of Justice of the EU, Mr Rantos examined whether the court of the Member State where a child was habitually resident before his wrongful removal to (or non-return from) a non-Member State has jurisdiction in the parental dispute, whereas the ‘Brussels IIa Regulation’ (2201/2003) explicitly regulates only questions of jurisdiction in this area between the courts of two Member States.
The Advocate General answers in the affirmative. He recalled that the objective of EU law is to ensure, in the best interests of the child, that the court nearest to the child and which is most familiar with their situation takes the necessary decisions. According to case law, the Regulation also aims to deter child abduction.
Mr Rantos notes that, according to the ‘Brussels IIa Regulation’ (Article 10), in cases of wrongful removal of a child, the courts of the Member State in which the child was habitually resident immediately before the wrongful removal retain jurisdiction until the child has acquired habitual residence in another Member State.
While the regulation only mentions the Member States, Mr Rantos adds, it also regulates legal relations involving a non-Member State so that these relations do not lead to a transfer of jurisdiction to courts outside the EU. It does not matter whether the child acquires habitual residence in the non-Member State, as long as they do not acquire this residence in another EU Member State.
Finally, in the Advocate General’s view, unlike the situation between two Member States, the courts of the Member State where the child was habitually resident before their abduction to a non-Member State remain competent without time limits (perpetuatio fori).
See the conclusions: http://bit.ly/2NX3pCf (Original version in French by Mathieu Bion)