In a judgment handed down on Thursday, 14 July, the Court of Justice of the EU ruled that a Member State’s court no longer has jurisdiction to rule on child custody on the basis of the ‘Brussels IIa Regulation’ where the child’s habitual residence has been lawfully transferred, during the proceedings, to the territory of a third State that is a party to the 1996 Hague Convention (Case C-572/21).
This was its answer to the Swedish Supreme Court, which was asking whether—by virtue of the regulation on the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (EC No 2201/2003, known as the ‘Brussels IIa Regulation’)—the court of a Member State retains jurisdiction to rule on a child custody dispute where, during the proceedings, the child’s habitual residence has been lawfully transferred to a third State that is a party to the 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement, and cooperation in respect of parental responsibility and measures for the protection of children.
The Court of Justice answered in the negative.
In fact, Article 8(1) of the Brussels IIa Regulation provides that the court of the Member State (in this case, Sweden) has jurisdiction to rule on child custody where the child’s habitual residence is in that State “at the time the court is seised”, notably due to its geographical proximity and the fact that it is best placed to assess the measures to be taken in the interest of the child. Moreover, according to the same article, this court does not lose jurisdiction even if a change in the child’s place of residence occurs during the proceedings.
Nevertheless, Article 61(a) of the same regulation provides that, in relation to the 1996 Hague Convention, the regulation shall apply where the child concerned has his or her habitual residence on the territory of a Member State “at the time when the court having jurisdiction gives its ruling”. Consequently, if—as is the case in the main proceedings—that residence is, at that time, no longer established on the territory of a Member State but has been lawfully transferred to that of a third State that is a party to the 1996 Hague Convention (in this case, Russia), Article 8(1) of said regulation “must not apply, and the provisions of that convention must apply instead”.
Therefore, the Court of Justice holds that, where the child’s habitual residence has been lawfully transferred in the course of proceedings to the territory of a third State that is a party to the 1996 Hague Convention, the court of the Member State does not retain jurisdiction to rule on the dispute, and the provisions set out in said convention for such a case are those that must apply [Editor’s note: see Article 7 et seq. of the convention].
Link to the judgment: https://aeur.eu/f/2n9 (Original version in French by Francesco Gariazzo)