One of the key issues in family law cases involving an international element is jurisdiction, which determines which country's courts are competent to rule on a specific category of cases concerning a child.
According to the applicable EU Council Regulation on jurisdiction, recognition, and enforcement of judgments in matrimonial matters and matters of parental responsibility, as well as child abduction, the general rule is that jurisdiction over parental responsibility matters lies with the courts of the Member State where the child has its habitual residence at the time the claim or application is filed. The regulation provides for exceptions to this rule, for instance, in cases where the child's place of residence changes or based on an agreement between the holders of parental responsibility.
Thus, determining the meaning of "habitual residence" is crucial for establishing jurisdiction in this category of cases. In its judgment of February 15, 2017, C-499/15, the Court of Justice of the European Union (CJEU) held that determining a child's habitual residence in a given Member State requires at least the child's physical presence in that Member State. Physical presence in a Member State where the child is potentially integrated is a prerequisite necessary to assess the stability of that presence. As case law from the European Court of Justice indicates, habitual residence should be interpreted in light of the regulation's objectives, based on the factual circumstances of a particular case. The concept of habitual residence implies a stay of some duration, though a child may acquire habitual residence immediately upon arrival in another Member State, depending on whether the child's life interests and center of existence become concentrated there (CJEU judgment of June 8, 2017, C-111/17 PPU).
This interpretation was confirmed by the CJEU in its judgment of April 2, 2009, C-523/07, A., in which it stated that "a child's habitual residence is located where the child demonstrates a certain degree of integration into the social and family environment." In particular, factors such as permanence, legality, conditions, and motives for the family's relocation to the Member State, the child's nationality, school attendance and conditions, language proficiency, as well as family and social ties in that Member State must be considered. It is the national court's responsibility to determine the child's habitual residence based on all relevant circumstances of the case.
Under certain conditions set forth in the regulation, jurisdiction in parental responsibility matters may also be established in the Member State where divorce, legal separation, or marriage annulment proceedings between the parents are taking place, or in another Member State with which the child has a substantial connection and where the parties have agreed in advance—at the latest at the initiation of proceedings—or explicitly recognized during the proceedings. This applies even if the child does not have habitual residence in that Member State, provided that the exercise of such jurisdiction is in the best interests of the child.
Before exercising jurisdiction based on a choice of court agreement or recognition of jurisdiction, the court should verify that such an agreement or recognition was made voluntarily and with full awareness by the parties involved, and that it was not the result of coercion or exploitation of one party's weaker position. Recognition of jurisdiction in the course of proceedings should be documented by the court in accordance with national law and procedure.
Jurisdiction in Cases of Child Abduction
In cases of child abduction, jurisdiction remains with the courts of the Member State where the child had habitual residence immediately before the wrongful removal or retention. These courts retain jurisdiction until the new Member State becomes the child's place of habitual residence, provided that the conditions set out in the regulation are met. Specifically, the child must acquire habitual residence in the new Member State, and all individuals holding parental responsibility must accept the wrongful removal or retention. Additionally, the child must have remained in the new Member State for at least one year after one of the individuals with parental responsibility became aware or should have become aware of the child's whereabouts. Furthermore, it must be determined whether the child has settled into the new environment during this period and whether at least one of the following conditions is met:
• Within one year from when the guardian became aware or should have become aware of the child's location, no request for the child's return was submitted to the competent authorities of the Member State to which the child was abducted or where it is being retained;
• A request for return made by the guardian was withdrawn, and no new request was submitted within the specified timeframe;
• A request for return made by the guardian was rejected by the Member State's court on grounds other than those provided in Article 13(1)(b) or Article 13(2) of the 1980 Hague Convention, and no ordinary remedies are available against this decision;
• No proceedings were initiated in the Member State where the child had habitual residence immediately before the wrongful removal or retention, as provided in Article 29(3) and (5);
• The courts of the Member State where the child had habitual residence immediately before the wrongful removal or retention have issued a custody ruling that does not order the child's return.
In cases of wrongful removal or retention of a child, the regulation mandates that a return order be issued. Consequently, in proceedings concerning the child's return, the 1980 Hague Convention, which supplements the regulation, must be applied.
Consideration of the Child’s Views
In proceedings concerning parental responsibility under the regulation, as well as proceedings regarding the child's return under the 1980 Hague Convention, the child affected by such proceedings who is capable of forming an opinion must, in accordance with CJEU case law, generally be given a real opportunity to express their views. When determining a decision in the best interests of the child, due consideration must be given to the child's expressed opinions.
Jurisdiction in Urgent Cases
Jurisdiction in parental responsibility cases concerning interim and protective measures is of critical importance in urgent situations. In such cases, in order to protect the child from serious risk as outlined in Article 13(1)(b) of the 1980 Hague Convention, even when jurisdiction over the substance of the case lies with the court of another Member State, the courts of a Member State have jurisdiction to apply interim measures, including protective measures provided by the national law of that state. These measures may concern a child located in that state, even if only temporarily (e.g., for business or tourism), or the child's property situated within that state.
The provisions of the regulation may, for instance, enable a court in a Member State to impose an interim measure in a parental responsibility case granting custody to one parent over a child present in that state. However, such an order cannot be issued if the court of another Member State has jurisdiction under the regulation to decide the substance of the custody dispute and has already issued a ruling temporarily assigning custody to the other parent, provided that the ruling has been declared enforceable in the first Member State.
It is essential to emphasize that the regulation's goal is to discourage the unlawful retention or abduction of children from one Member State to another. Therefore, case law deems it contrary to this objective to recognize an urgent situation when the child's changed circumstances result from an unlawful abduction. Consequently, in such cases, the application of a protective measure altering parental responsibility is excluded, as it would serve to reinforce the factual situation resulting from unlawful actions and strengthen the position of the parent responsible for the abduction.