Case C‑87/22

TT

v

AK

(Request for a preliminary ruling from the Landesgericht Korneuburg)

Judgment of the Court (Fourth Chamber), 13 July 2023

(Reference for a preliminary ruling – Jurisdiction in matters of parental responsibility – Regulation (EC) No 2201/2003 – Articles 10 and 15 – Transfer to a court of another Member State better placed to hear the case – Conditions – Court of the Member State to which the child has been wrongfully removed – The 1980 Hague Convention – Best interests of the child)

1. 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 – Transfer to a court better placed to hear the case – Scope – Transfer in cases of child abduction – Transfer, made by the court having jurisdiction under Article 10 of that regulation, to a court of the Member State of wrongful removal of the child – Included

   (Council Regulation No 2201/2003, Arts 10 and 15(1)(b))

   (see paragraphs 40-43, 45-51, 55, operative part 1)

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 matters of parental responsibility – Transfer to a court better placed to hear the case – Conditions – Return application, based on the 1980 Hague Convention, in respect of which a final decision has not yet been delivered

   (Council Regulation No 2201/2003, Art. 15(1)(b))

   (see paragraphs 57-59, operative part 2)

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 – Transfer to a court better placed to hear the case – Concept of ‘court better placed’ – Criteria for assessment – Transfer’s genuine and specific added value for the adoption of a decision relating to the child – Risk of depriving the parent applying for the return of the child of the opportunity to present his or her arguments effectively – Adoption of urgent provisional measures by the court better placed – Expiry of the six-week period following the lodging of a return application based on the 1980 Hague Convention, and substantial delay in ruling on that application

   (Council Regulation No 2201/2003, Art. 15)

   (see paragraphs 63, 64, 66-69)

Résumé

The Slovak nationals TT and AK are the parents of V and M, born in Slovakia in 2012. In 2014, the family moved to Austria. TT and AK separated in 2020 and AK brought the children to live with her in Slovakia, without TT’s consent. TT then lodged a request for the return of the children with a Slovak court pursuant to the 1980 Hague Convention. ( 1 ) In parallel, he lodged an application with an Austrian court for the purpose of being granted sole custody of the two children. AK seised that same court, requesting that it ask a Slovak court to assume jurisdiction on the matter of custody of the children, in accordance with Regulation No 2201/2003, ( 2 ) ( 3 ) arguing that the Slovak courts would be better placed to rule on the matter of parental responsibility for the two children.

The referring court wonders whether jurisdiction as regards custody of a child can be transferred, pursuant to Regulation No 2201/2003, ( 4 ) to a court of the Member State in which the child has settled his or her habitual residence following a wrongful removal and whether the conditions laid down for such a transfer are exhaustive.

Seised by that court, the Court of Justice provides clarifications concerning the conditions under which the court of a Member State, which has jurisdiction to rule on the substance of a case on the matter of parental responsibility under Article 10 of Regulation No 2201/2003, may exceptionally request the transfer of that case, provided for by Article 15(1)(b) of that regulation, to a court of the Member State to which the child has been wrongfully removed by one of his or her parents.

Findings of the Court

The rules on jurisdiction in matters of parental responsibility contained in Regulation No 2201/2003 were drawn up with the objective of meeting the best interests of the child and, to that end, they favour the criterion of proximity. Thus, a general rule of jurisdiction is established ( 5 ) in favour of the courts of the Member State in which the child is habitually resident at the time the court is seised. That rule applies, however, ( 6 ) subject to, inter alia, Article 10 of that regulation, which attributes jurisdiction to the courts of the Member State in which that child was habitually resident immediately before the wrongful removal or retention. That provision, which gives effect to the aim of deterring the wrongful removal or retention of children between Member States, serves to defeat what would otherwise be the effect of the application of the general rule of jurisdiction in a case of the wrongful removal of the child concerned, namely the transfer of jurisdiction to the Member State where the child may have acquired a new habitual residence, following his or her wrongful removal or retention.

In addition, Article 15 of Regulation No 2201/2003 provides for a means of cooperation by which a court of a Member State which has jurisdiction to hear the case may, by way of exception, transfer that case to a court of another Member State, provided that that court accepts jurisdiction within six weeks. A court whose jurisdiction is based on Article 10 of Regulation No 2201/2003 also has the power to request a transfer, and it cannot be ruled out that the transfer may be made to a court of the Member State to which the child concerned has been wrongfully removed by one of his or her parents. The best interests of the child, which is one of the objectives pursued by Regulation No 2201/2003, is a fundamental consideration and the transfer at issue must be in those best interests. It is therefore not contrary to the objectives pursued by Regulation No 2201/2003 for a court having jurisdiction in matters of parental responsibility on the basis of Article 10 of that regulation to be able to request the transfer of the case of which it is seised to a court in the Member State to which the child concerned has been wrongfully removed by one of his or her parents.

The transfer at issue may, however, be requested only if three cumulative and exhaustive conditions are satisfied, ( 7 ) namely that there is a ‘particular connection’ between the child and another Member State, that the court having jurisdiction as to the substance of the case considers that a court of that other Member State is ‘better placed’ to hear the case and that the transfer is in the best interests of the child, in so far as it is not liable to be detrimental to the situation of the child concerned. The existence of a return application based on the 1980 Hague Convention, in respect of which a final decision has not yet been delivered in the Member State to which the child concerned has been wrongfully removed by one of his or her parents, does not preclude the transfer at issue, but that fact must be taken into account in the analysis of whether the conditions laid down for that transfer have been satisfied.

In that regard, in the first place, the fact that a Member State is the place of the child’s nationality is one of the criteria permitting a finding that that child has a ‘particular connection’ with that Member State.

In the second place, as regards the condition that the court to which it is envisaged that the transfer will be made must be ‘better placed’ to hear the case, the court having jurisdiction should take several factors into account. First of all, the transfer should provide genuine and specific added value to the adoption of a decision relating to the child, compared with if the case were to continue before the court having jurisdiction. That is the case, inter alia, where the court to which it is envisaged that the transfer will be made has, at the request of the parties to the main proceedings and in accordance with the applicable rules of procedure, adopted a series of urgent provisional measures based on, inter alia, Article 20 of Regulation No 2201/2003. Next, that transfer cannot give rise to a clear risk that the parent applying for the return of the child will be deprived of the opportunity to present his or her arguments effectively before the court to which it is envisaged that the transfer will be made. Lastly, where a return application based on the 1980 Hague Convention has been lodged with the competent authorities of the Member State to which the child concerned has been wrongfully removed, no court of that Member State may be held to be ‘better placed’ to hear the case before the period of six weeks laid down for delivering a judgment on the application for the return of the child ( 8 ) has expired. Furthermore, a substantial delay by the courts of that Member State in ruling on that application is capable of constituting a factor weighing against a finding that those courts are better placed to rule on the substance of rights of custody. After having been informed of the wrongful removal of a child, the courts of the contracting State to which the child has been removed cannot rule on the substance of rights of custody until it has been established that, inter alia, the conditions for the return of the child are not satisfied. ( 9 )

In the third and last place, as regards the condition relating to the best interests of the child, the assessment of that condition cannot disregard the temporary impossibility for the courts of the Member State to which the child has been wrongfully removed by one of his or her parents to adopt a decision on the substance of rights of custody, consistent with those best interests, before the court of that Member State hearing the application for the return of that child has, at the very least, ruled on that application.

( 1 ) Convention on the Civil Aspects of International Child Abduction, concluded in The Hague on 25 October 1980.

( 2 ) 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). Article 15 of Regulation No 2201/2003 provides that, by way of exception, the courts of a Member State having jurisdiction as to the substance of a case in matters of parental responsibility may request the transfer of that case, or a specific part thereof, to a court of another Member State with which the child has a particular connection, if that court is better placed to hear the case, and where the transfer is in the best interests of the child.

( 3 ) In particular with Article 15(1)(b), (2)(a) and (5) of that regulation.

( 4 ) Under Article 15(1)(b) of that regulation.

( 5 ) In accordance with Article 8(1) of that regulation.

( 6 ) In accordance with Article 8(2) of that regulation.

( 7 ) Listed exhaustively in Article 15(1) of Regulation No 2201/2003.

( 8 ) Laid down in Article 11 of the 1980 Hague Convention and Article 11 of Regulation No 2201/2003.

( 9 ) Article 16 of the 1980 Hague Convention.