1. 

The present case arises from a dispute concerning rights of custody, right of access and the determination of maintenance obligations with regard to a minor child.

2. 

The Vilniaus miesto apylinkės teismas (District Court of the City of Vilnius, Lithuania) seeks guidance from the Court on the practical application of Regulation (EC) No 2201/2003 ( 2 ) and Regulation (EC) No 4/2009, ( 3 ) so that it may determine which courts have jurisdiction to rule on the above matters. In the case in the main proceedings, a Lithuanian court has delivered a judgment, which has become final, on rights of custody, rights of access and maintenance obligations with regard to a minor child. The father of the child has subsequently made a fresh application to the Lithuanian court to vary that judgment. However, the child in question is habitually resident in the Netherlands, with his mother, and so a question arises as to whether the Lithuanian court may still have jurisdiction to hear the father’s application.

3. 

In this Opinion, I shall set out the reasons for which I consider that Article 8 of Regulation No 2201/2003 and Article 3(d) of Regulation No 4/2009 must be interpreted as meaning that, where a court in a Member State has delivered a judgment which has become final concerning rights of custody, rights of access and maintenance obligations with regard to a minor child, that court will no longer have jurisdiction to rule on an application to vary that judgment if the child’s habitual residence is not in that Member State. I shall explain why, in my opinion, the courts which do have jurisdiction to rule on such an application are, in accordance with the abovementioned provisions and the principle that the best interests of the child must be protected, the courts of the Member State in which the child is habitually resident.

4.

The objective of Regulation No 2201/2003 is to create, within the area of freedom, security and justice, uniform rules of international jurisdiction in matters of divorce, legal separation or marriage annulment, and parental responsibility.

5.

Recital 12 of that regulation is worded as follows:

‘The grounds of jurisdiction in matters of parental responsibility established in the present regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.’

6.

Article 3 of Regulation No 2201/2003 establishes the general jurisdiction in matters relating to divorce, legal separation and marriage annulment. It is drafted as follows:

‘1.   In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State

…’

7.

In so far as concerns the jurisdiction of the courts in matters of parental responsibility, Article 8 of Regulation No 2201/2003 establishes the following rule of general jurisdiction:

‘1.   The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.

2.   Paragraph 1 shall apply subject to Articles 9, 10 and 12.’

8.

Article 12 of Regulation No 2201/2003 is drafted as follows:

‘1.   The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where:

2.   The jurisdiction conferred in paragraph 1 shall cease as soon as:

…’

9.

In accordance with Article 14 of the regulation, ‘where no court of a Member State has jurisdiction pursuant to Articles 8 to 13, jurisdiction shall be determined, in each Member State, by the laws of that State’.

10.

Article 19 of the regulation provides:

‘…

2.   Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

3.   Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.

In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised.’

11.

Under Article 21(1) of Regulation No 2201/2003, ‘a judgment given in a Member State shall be recognised in the other Member States without any special procedure being required’.

12.

There is also a list of the grounds for refusing to recognise judgments delivered in matters of parental responsibility. In particular, pursuant to Article 23(a) of the regulation, such a judgment is not to be recognised ‘if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child’.

13.

The objective of Regulation No 4/2009 is to make it easier to obtain a decision in another Member State concerning a maintenance claim, without further formalities. ( 4 )

14.

Pursuant to Article 1(1) thereof, Regulation No 4/2009 applies ‘to maintenance obligations arising from a family relationship, parentage, marriage or affinity’.

15.

To that end, the regulation institutes a system of common rules for dealing with conflicts of jurisdiction and establishes general jurisdictional rules applicable to maintenance obligations.

16.

Thus, Article 3 of Regulation No 4/2009 states as follows:

‘In matters relating to maintenance obligations in Member States, jurisdiction shall lie with:

17.

W, a Lithuanian national, and X, a national of the Netherlands and of Argentina, married on 9 December 2003 in Portland, Oregon (the United States of America). A child of that marriage, V, who holds both Lithuanian and Italian nationalities, was born in the Netherlands on 20 April 2006.

18.

Between 2004 and 2011, W and X lived variously in the Netherlands, Italy and Canada. In November 2011, X took residence with V in the Netherlands. According to the referring court, it is established that V has never lived in or visited Lithuania.

19.

W and X have been separated since December 2010. It has been established that W is habitually resident in Lithuania, while X and V are habitually resident in the Netherlands.

20.

X petitioned for divorce before a Canadian court. Several orders ensued, between May 2011 and April 2012, concerning the divorce petition, the determination of V’s place of residence, arrangements for the exercise of rights of access and V’s maintenance. The Canadian court granted the divorce by decision of 17 April 2012 and awarded custody of V to X.

21.

On the application of W, the Lietuvos apeliacinis teismas (Court of Appeal, Lithuania) refused to recognise the orders and decision of the Canadian court.

22.

W brought an action before the Vilniaus miesto 1 apylinkės teismas (First District Court of the City of Vilnius, Lithuania) by which he sought a divorce on grounds of X’s fault and a declaration fixing V’s place of residence with him. On 28 April 2011, that court granted W’s application for interim measures and determined that V’s place of residence should provisionally be with W. That order was set aside by the court seised of the divorce petition by an immediately enforceable decision dated 12 April 2013. W appealed against that decision and, on 19 July 2013, the Vilniaus apygardos teismas (Regional Court, Vilnius. Lithuania) upheld the decision of 12 April 2013 of the Vilniaus miesto apylinkės teismas (District Court of the City of Vilnius). W appealed against that decision on a point of law, but his appeal was declared inadmissible.

23.

By decision of 8 October 2013, the Vilniaus miesto apylinkės teismas (District Court of the City of Vilnius) gave its ruling on the divorce petition and determined V’s place of residence to be with X. It also determined how W’s right of access might be exercised and fixed the amount of maintenance he was to pay for the child.

24.

W appealed against that decision before the Vilniaus apygardos teismas (Regional Court, Vilnius, Lithuania), which, by decision of 30 May 2014, upheld it. W brought an appeal on a point of law against that decision, but his appeal was declared inadmissible.

25.

While the proceedings in Lithuania were ongoing, X brought an action before the courts of the Netherlands. By decision of 29 January 2014, the Rechtbank Overijssel (District Court, Overijssel, Netherlands) fixed the level of W’s maintenance obligations toward X at EUR 4 323.16 per month as from 8 May 2012, and toward V at EUR 567.01 per month from 27 June to 1 November 2011 and EUR 790 per month from 2 November 2011 onwards.

26.

By decision of 22 August 2014, that same court revoked the joint rights of custody over V and awarded sole custody of the child to X. Under Netherlands law, sole custody is awarded to one of the parents where there is an unacceptable risk that the child might suffer as a result of its parents’ disagreements and it is unlikely that the situation will improve, or where a change in the custody arrangements is otherwise necessary in the best interests of the child.

27.

By decision of 31 October 2014, the Rechtbank Overijssel (District Court, Overijssel) refused to recognise and render enforceable in the Netherlands the parts of the decision of 8 October 2013 of the Vilniaus miesto apylinkės teismas (District Court of the City of Vilnius) relating to the granting of the divorce on grounds of the spouses’ fault, the determination of V’s habitual place of residence as being with X, the amount of maintenance W was to pay for the child V, and costs. On the other hand, it recognised and rendered enforceable in the Netherlands the part of the decision of 8 October 2013 which determined how W’s right of access might be exercised.

28.

By decision of 2 February 2015, on an appeal brought by W, the Lietuvos apeliacinis teismas (Court of Appeal, Lithuania) refused to render enforceable in Lithuania the decision of 29 January 2014 of the Rechtbank Overijssel (District Court, Overijssel) and refused to recognise and render enforceable in Lithuania the decision of that same court of 22 August 2014 concerning the custody arrangements. The Lietuvos apeliacinis teismas (Court of Appeal, Lithuania) also closed proceedings concerning the non-recognition in Lithuania of the decision of the Rechtbank Overijssel (District Court, Overijssel).

29.

On 28 August 2014, W brought proceedings before the Vilniaus miesto apylinkės teismas (District Court of the City of Vilnius), seeking a decision changing V’s place of residence, varying the amount of maintenance and altering the arrangements for the exercise of rights of access.

30.

By decision of 25 September 2014, that court declared that application inadmissible on the ground that W had failed to show what specific circumstances had changed since its ruling of 8 October 2013.

31.

W brought an appeal against the decision of 25 September 2014 before the Vilniaus apygardos teismas (Regional Court, Vilnius). By decision of 16 December 2014, that court upheld W’s appeal, set aside the contested ruling in part and referred the case back to the court of first instance for a fresh ruling.

32.

By decision of 23 December 2014, the Vilniaus miesto apylinkės teismas (District Court of the City of Vilnius), declared the application inadmissible, taking the view that it had no jurisdiction because V’s habitual place of residence was with X in the Netherlands. According to that court, the claims made in W’s application did not fall within the jurisdiction of the Lithuanian courts. It informed W that he could bring the matter before the competent court in the Netherlands.

33.

By decision of 31 March 2015 in an appeal brought by W, the Vilniaus apygardos teismas (Regional Court, Vilnius) set aside the decision of 23 December 2014 and referred the question of the admissibility of the application back to the court of first instance, the Vilniaus miesto apylinkės teismas (District Court of the City of Vilnius) for a fresh ruling.

34.

In view of the divergence in the views of the national courts on the question of jurisdiction, the Vilniaus miesto apylinkės teismas (District Court of the City of Vilnius) decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling:

‘Pursuant to Articles 8 to 14 of [Regulation No 2201/2003], which Member State — that is to say, the Republic of Lithuania or the Kingdom of the Netherlands — has jurisdiction to hear an application concerning the minor child V, who is habitually resident in the Netherlands, to change the child’s place of residence, vary the amount of maintenance and alter the rights of access in relation to the child?’

35.

I should like to state at the outset that, at the hearing, the applicant in the main proceedings argued, inter alia, that the habitual place of residence of the child V was not in the Netherlands, but in Lithuania. In his submission, once a court has decided that a child’s place of residence is with one or other parent, it is that ‘legal’ place of residence that must be regarded as the child’s habitual place of residence. However, according to settled case-law, ‘the concept of “habitual residence” under Article 8(1) of [Regulation No 2201/2003] corresponds to the place which reflects some degree of integration [of] the child in a social and family environment. That place must be established by the national court, taking account of all the circumstances of fact specific to each individual case.’ ( 5 ) The Court has added that, ‘among the tests which should be applied by the national court to establish the place where a child is habitually resident, particular mention should be made of the conditions and reasons for the child’s stay on the territory of a Member State, and the child’s nationality … As the Court explained, moreover, in paragraph 38 of [its judgment of 2 April 2009,] A, [ ( 6 )] in order to determine where a child is habitually resident, in addition to the physical presence of the child in a Member State, other factors must also make it clear that that presence is not in any way temporary or intermittent’. ( 7 )

36.

In the present case, the referring court has specifically established that the habitual place of residence of the child V is in the Netherlands and has even stated that the child has never lived in Lithuania. There is, therefore, no question but that the habitual place of residence of the child V is in the Netherlands.

37.

Whether the Lithuanian court had jurisdiction to adopt the decision of 8 October 2013 is questionable. I would, however, clarify that the Court of Justice is not asked, in this case, to decide whether the Lithuanian court had jurisdiction, under the rules laid down in Regulation No 2201/2003, to adopt that decision, or even whether that decision must be recognised by the Netherlands courts. Those questions have not been referred to the Court in this case.

38.

While the national court mentions only provisions of Regulation No 2201/2003 in the question which it has referred, I would observe that, in the body of its order for reference to the Court of Justice, it also queries the jurisdiction of the Lithuanian courts with regard to maintenance obligations. However, in accordance with Article 1(3)(e) thereof, Regulation No 2201/2003 does not apply to maintenance obligations: questions concerning jurisdiction with regard to maintenance obligations are governed by Regulation No 4/2009.

39.

Nevertheless, there can be no doubt that both these aspects, parental responsibility and maintenance obligations with regard to the child V, are indissolubly linked. Moreover, the decision of the Vilniaus miesto apylinkės teismas (District Court of the City of Vilnius) of 8 October 2013 specifically deals with both aspects. Accordingly, I am in no doubt that the matter of maintenance obligations with regard to the child V is ancillary to the matter of the rights of custody and the rights of access with regard to him.

40.

Under Article 3(d) of Regulation No 4/2009, in matters relating to maintenance obligations, jurisdiction lies with the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility, if the matter of maintenance is ancillary to those proceedings.

41.

Accordingly, the rule of jurisdiction which is established with respect to parental responsibility will apply equally to maintenance obligations, in accordance with that provision.

42.

Therefore, I propose to reformulate the question referred for a preliminary ruling by the national court thus: by its question, the national court seeks to establish, in substance, whether Regulation No 2201/2003 and Regulation No 4/2009 are to be interpreted as meaning that, where a court in a Member State has delivered a judgment which has become final concerning rights of custody, rights of access and maintenance obligations with regard to a minor child, that court will also have jurisdiction to hear an application to vary that judgment even if the child’s habitual residence is not in that Member State.

43.

In reality, the issue raised in the present case is whether or not the Lithuanian court which adopted the decision of 8 October 2013, which now has the force of res judicata, concerning rights of custody, rights of access and maintenance obligations with regard to the child V, may have recourse to the prorogation of jurisdiction and give a fresh ruling on the same subject matter even though, in accordance with the general rule of jurisdiction established by Regulation No 2201/2003, it is the Netherlands courts which have jurisdiction in matters of parental responsibility, since the child V is habitually resident in the Netherlands.

44.

In my opinion, there are no grounds on which the Lithuanian court may assume jurisdiction to hear such an application.

45.

The Court of Justice has held that the jurisdiction of a court in matters of parental responsibility must be verified and established in each specific case, where a court is seised of proceedings, which implies that it does not continue after pending proceedings have been brought to a close. ( 8 )

46.

Admittedly, the purpose of W’s application is to have the arrangements for custody and the exercise of the rights of access, and the maintenance obligations established in the decision of 8 October 2013 altered. Moreover, an application of that kind is in no way exceptional, and it is common for one or other parent to bring proceedings to alter such arrangements because of a change in his or her personal circumstances or financial situation.

47.

Nevertheless, the decision in question has become final, and the application which W lodged with the Vilniaus miesto apylinkės teismas (District Court of the City of Vilnius) on 28 August 2014 must therefore be regarded as a new application.

48.

The rules on jurisdiction laid down in Regulation No 2201/2003 are clear. Pursuant to Article 8 of the regulation, jurisdiction in matters of parental responsibility lies, in the first place, with the courts of the Member State in which the child is habitually resident at the time the court is seised, that is to say, ‘at the time when the document instituting the proceedings … is lodged with the court’. ( 9 ) In this case, the referring court states that the child V has been habitually resident in the Netherlands since November 2011 and that he has never lived in Lithuania. Consequently, at the time when W issued the proceedings before the Lithuanian court, that is, as mentioned in the preceding point, on 28 August 2014, it was the Netherlands courts that had jurisdiction to rule on all questions relating to parental responsibility for the child.

49.

The fact that the purpose of W’s application is to have the alteration of the arrangements established in the decision adopted by the Lithuanian court on 8 October 2013 altered cannot lead to any derogation from that general rule or to the prorogation of that court’s jurisdiction.

50.

The grounds of jurisdiction in matters of parental responsibility which Regulation No 2201/2003 establishes are shaped in the light of the best interests of the child, in particular on the criterion of proximity. ( 10 ) It is for that reason that, pursuant to Article 8 of that regulation, jurisdiction in such matters lies, in the first place, with the courts of the Member State in which the child is habitually resident at the time the court is seised. Indeed, because of their geographical proximity, it is those courts that are generally the best placed to assess the measures to be taken in the interests of the child. ( 11 )

51.

While it is true that there are exceptions to that rule of jurisdiction, they are nevertheless listed exhaustively in Articles 9 to 15 of Regulation No 2201/2003 and must be interpreted strictly. ( 12 )

52.

Article 9 of Regulation No 2201/2003 concerns the case where the child moves away from a Member State lawfully. Article 10 concerns the case where a child is abducted. Article 12 of the regulation concerns the prorogation of jurisdiction which enables the courts in a Member State other than that in which the child is habitually resident to hear applications concerning parental responsibility for the child either where those courts have jurisdiction to hear an application for divorce, legal separation or marriage annulment, or where the child has a substantial connection with that Member State by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State. In either of those cases, the ‘exceptional’ jurisdiction of such courts must have been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility. ( 13 )

53.

As for Article 14 of Regulation No 2201/2003, that comes into play where no court of a Member State has jurisdiction pursuant to Articles 8 to 13 of the regulation. Lastly, Article 15 permits the courts of a Member State having jurisdiction as to the substance of the matter to refer the case to the courts of a Member State with which the child has a particular connection if they are better placed to hear the case and where this is in the best interests of the child.

54.

It is clear that the case currently before the Court falls within none of the exceptions laid down in the regulation.

55.

The prorogation or retention of a court’s jurisdiction can only be justified if it is in the best interests of the child. Article 24(2) of the Charter of Fundamental Rights of the European Union states, in this connection, that, ‘in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration’.

56.

It could, of course, be argued that, since decisions establishing arrangements concerning rights of custody, rights of access and maintenance obligations are usually altered by means of a new decision, it would be convenient if that new decision were adopted by the same court.

57.

There is one such exception to the general rule, and it concerns rights of access: where a child moves lawfully and acquires a new habitual residence, Article 9 of Regulation No 2201/2003 provides for the retention of jurisdiction by the courts of the Member State of the child’s former habitual residence for a period of three months following the move for the purpose of modifying a judgment on rights of access issued in that Member State.

58.

The EU legislature justified that exception to the general rule by reference to the fact that it is preferable if ‘the modification of its earlier judgment to take into account the child’s relocation is made by the court that is closest to the child, [as this] allows for some continuity without nonetheless touching on the definition of the term “habitual residence”’. ( 14 )

59.

However, in addition to this limitation to rights of access, there is a fundamental difference between the situation envisaged by Article 9 of the regulation and the situation in the case in the main proceedings. At no time could the Lithuanian court which adopted the decision of 8 October 2013, which W seeks to have amended, have based its jurisdiction on the child’s place of residence, since, as may be recalled, the child has never lived in Lithuania. It would appear, in light of all the information in the documents on the case-file, that the Lithuanian court which adopted that decision may have considered itself to have jurisdiction — that is to say, ‘residual’ jurisdiction, as mentioned in point 53 above — under Article 14 of the regulation. It was not, therefore, on the basis of the criterion of proximity or, consequently, in the best interests of the child that that jurisdiction was established.

60.

To extend the jurisdiction of a court which is not in the best interests of the child would be wholly inconsistent with the system of rules laid down in Regulation No 2201/2003 and with the fundamental principle, enshrined in Article 24 of the Charter of Fundamental Rights, that, in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

61.

In light of all the foregoing, I consider that Article 8 of Regulation No 2201/2003 and Article 3(d) of Regulation No 4/2009 must be interpreted as meaning that, where a court in a Member State has delivered a judgment which has become final concerning rights of custody and rights of access with regard to a minor child, that court will no longer have jurisdiction to hear an application to vary that judgment if the child’s habitual residence is not in that Member State. The courts which do have jurisdiction to hear such an application are, in accordance with the abovementioned provisions and the principle that the best interests of the child must be protected, the courts of the Member State in which the child is habitually resident.

62.

In light of all the foregoing considerations, I propose that the Court should answer the Vilniaus miesto apylinkės teismas (District Court of the City of Vilnius as follows:

Article 8 of 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, and Article 3(d) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, are to be interpreted as meaning that, where a court in a Member State has delivered a judgment which has become final concerning rights of custody, rights of access and maintenance obligations with regard to a minor child, that court will no longer have jurisdiction to hear an application to vary that judgment if the child’s habitual residence is not in that Member State.

The courts which do have jurisdiction to hear such an application are, in accordance with the abovementioned provisions and the principle that the best interests of the child must be protected, the courts of the Member State in which the child is habitually resident.