Tribunal de Justicia de la Unión Europea (TJUE)
24 March 2021
Reglamento Bruselas II bis Reglamento (CE) No 2201/2003 del Consejo
TJUE - Decisión prejudicial dictada, remisión del asunto a los tribunales nacionales
The parents, both Indian citizens, lived together in the United Kingdom but were not married. In 2017 they had a child who is a British citizen. The father was named on the birth certificate and has parental responsibility of the child.
In October 2018 the mother went to India with the child. After several months, the mother returned to the United Kingdom without her. Except for a short stay in the United Kingdom in April 2019, the child has remained in India, where she lives with her maternal grandmother.
On 26 August 2020 the father submitted an application to the High Court of England and Wales seeking, first, an order for the return of the child to the United Kingdom and, second, a ruling on rights of access. The mother challenged the jurisdiction of the courts of England & Wales, since the child was not habitually resident in the United Kingdom.
Before giving a ruling, the High Court requested a preliminary ruling to determine whether it had jurisdiction on the basis of Brussels II bis Regulation Regulation No 2201/2003.
In the case of abduction to a third party (non-EU Member) State, the jurisdiction of the court of an EU Member State that is seised of an action relating to parental responsibility cannot be based on Article 10 of the Brussels II bis Regulation.
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.
Article 8(1) of the Brussels II bis Regulation provides a general rule that courts of the Member State where a child is habitually resident are to have jurisdiction in matters of parental responsibility. Article 10 constitutes a special ground of jurisdiction with respect to this general ground, in a case of child abduction, since that transfer of jurisdiction to the Member State where the child may have acquired a new habitual residence might secure a procedural advantage for the perpetrator of the wrongful act. Article 10 provides that the courts of the Member State where the child was habitually resident before the wrongful removal or retention are, nonetheless, to retain their jurisdiction unless certain conditions are met.
Where a child has acquired a habitual residence outside the European Union, as in the present case, after being wrongfully removed to or retained in a third State, Article 8 of the Regulation does not apply, given the absence of habitual residence in a Member State. Therefore, there is no reason to apply the rule laid down in Article 10 , whereby it is possible to set aside the jurisdiction of the courts of the Member State where the new habitual residence has been acquired. Consequently, Article 10 does not justify indefinite retention of jurisdiction by the courts of the Member State where the child was habitually resident before his or her wrongful removal or retention, when that child has been abducted to a third State.