Case C603/20 PPU

SS

v

MCP

(Request for a preliminary ruling from the High Court of Justice (England and Wales), Family Division)

 Judgment of the Court (Fifth Chamber), 24 March 2021

(Reference for a preliminary ruling – Urgent preliminary ruling procedure – Area of freedom, security and justice – Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Article 10 – Jurisdiction in matters of parental responsibility – Abduction of a child – Jurisdiction of the courts of a Member State – Territorial scope – Removal of a child to a third State – Habitual residence acquired in that third State)

1.        Questions referred for a preliminary ruling – Urgent preliminary ruling procedure – Conditions – Separation and removal of a young child from his or her parents – Risk of serious harm to their relationship and to the development of the child – Risk of jeopardising the integration of the child in his or her family and social environment in the event of return

(Rules of Procedure of the Court of Justice, Art. 107; Council Regulation No 2201/2003)

(see paragraphs 33-35)

2.        Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation No 2201/2003 – Jurisdiction in the matters of parental responsibility – Jurisdiction in cases of child abduction – Special jurisdiction – Restrictive interpretation

(Council Regulation No 2201/2003, Arts 8(1) and 10)

(see paragraphs 43, 47)

3.        Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation No 2201/2003 – Jurisdiction in matters of parental responsibility – Jurisdiction in cases of child abduction – Jurisdiction of the courts of the Member State in which the child was habitually resident before his or her abduction – Scope – Abduction of a child to a third State – Child who has acquired his or her habitual residence in that third State at the time when an application relating to parental responsibility is brought – Not included – Determination of jurisdiction on the basis of international conventions, an agreement on jurisdiction or the rules of national law

(Charter of Fundamental Rights of the European Union, Art. 24; Council Regulation No 2201/2003, recital 33 and Arts 8(1), 10, 12, 14 and 60(e))

(see paragraphs 39, 40, 45, 46, 49-55, 58-64, operative part)

Résumé

SS and MCP, two Indian citizens who both have leave to remain in the United Kingdom, are parents of P, a citizen of the United Kingdom who was born in 2017. In October 2018, the mother went to India with the child, who has since lived there with her maternal grandmother and, therefore, no longer has her habitual residence in the United Kingdom. It is on that ground that the mother has challenged the jurisdiction of the courts of England and Wales, called upon to give a decision on the application of the father, who seeks the return of the child to the United Kingdom and, in the alternative, rights of access in the context of an action brought before the High Court of Justice (England & Wales), Family Division (United Kingdom).

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, it indicates that, 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.

The High Court of Justice notes that Article 10 of the Brussels II bis Regulation establishes the grounds of jurisdiction in cases of wrongful removal or retention of a child, while specifying that it harbours doubts, in particular, as to whether that provision can apply to a conflict of jurisdiction between the courts of a Member State and the courts of a third State. It, therefore, asks the Court of Justice whether that provision must be interpreted as meaning that, where a child has acquired 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. This case thus enables the Court to give a ruling on the territorial scope of that provision.

Findings of the Court

The Court states, first, that, regarding jurisdiction in the event of child abduction, Article 10 of the Brussels II bis Regulation provides criteria relating to a situation which is confined to the territory of the Member States. The fact that that article uses the expression ‘Member State’ and not the words ‘State’ or ‘third State’ implies that it deals solely with jurisdiction in cases of child abductions from one Member State to another.

As regards, second, the context of that provision, the Court observes that Article 10 of the Brussels II bis Regulation constitutes a special ground of jurisdiction with respect to the general ground (2) which provides that the courts of the Member State where a child is habitually resident are, as a general rule, to have jurisdiction in matters of parental responsibility. That special ground of jurisdiction defeats what would otherwise be the effect of the application of the general ground of jurisdiction in the event of child abduction, namely the transfer of jurisdiction to the Member State where the child may have acquired a new habitual residence. However, where the child has acquired a habitual residence outside the European Union, there is no room for the application of the general rule of jurisdiction. Consequently, Article 10 of that regulation loses its raison d’être and there is not, therefore, any reason to apply it.

Furthermore, the Court observes that it is apparent from the travaux préparatoires of the Brussels II bis Regulation that the EU legislature did not intend to include within the scope of Article 10 the situation of child abductions to a third State, since such abductions were to be covered, inter alia, by international conventions such as the 1980 (3) and 1996 (4) Hague Conventions. Under certain conditions (such as acquiescence or inaction on the part of one of the persons concerned who holds a right of custody), the 1996 Hague Convention does make provision for the transfer of jurisdiction to the courts of the State where the child has acquired a new habitual residence. Such transfer of jurisdiction would be deprived of any effect if the courts of a Member State were to retain their jurisdiction indefinitely.

Third, the Court specifies that an indefinite retention of jurisdiction would not be compatible with one of the fundamental objectives pursued by the Brussels II bis Regulation, namely that of respecting the best interests of the child, by giving priority, for that purpose, to the criterion of proximity. The interpretation of Article 10 of the Brussels II bis Regulation in such a way would also disregard the logic of the mechanism of prompt return or non-return established by the 1980 Hague Convention.

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, at the time when an application relating to parental responsibility is brought, acquired his or her habitual residence in a third State following abduction to that State. In that situation, the jurisdiction of the court seised will have to be determined in accordance with the applicable international conventions or, in the absence of any such international convention, in accordance with Article 14 of the Brussels II bis Regulation.


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 2003 L 338, p. 1; ‘the Brussels II bis Regulation’).


2      Laid down in Article 8(1) of that regulation.


3      Convention on the Civil Aspects of International Child Abduction, signed on 25 October 1980 in the framework of the Hague Conference on Private International Law.


4      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, pp. 39-48).