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Document 62015CC0428

Opinion of Advocate General Wathelet delivered on 16 June 2016.

Digital reports (Court Reports - general)

ECLI identifier: ECLI:EU:C:2016:458

OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 16 June 2016 ( 1 )

Case C‑428/15

Child and Family Agency

v

J.D.

(Request for a preliminary ruling from the Supreme Court (Ireland))

‛Reference for a preliminary ruling — Judicial cooperation in civil matters — Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility — Regulation (EC) No 2201/2003 — Article 15 — Transfer of the case to another court — Scope — Conditions for application — Court better placed — Best interests of the child’

I – Introduction

1.

This request for a preliminary ruling has arisen in the context of a dispute between the Child and Family Agency, Ireland (‘the Agency’) and Ms J.D., concerning the action to be taken in relation to her second child, the young minor R.

2.

That request concerns the interpretation of Article 15 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. ( 2 )

3.

That provision authorises the court having jurisdiction as to the substance of the matter (‘the court which would normally have jurisdiction’) to refer the case to the court of another Member State ‘better placed to hear the case’, if this ‘is in the best interests of the child’. In the various questions referred by the national court for a preliminary ruling, the Court is called upon to clarify those two specific conditions for its application.

II – Legal framework

4.

According to recital 5 of Regulation No 2201/2003: ‘In order to ensure equality for all children, this Regulation covers all decisions on parental responsibility, including measures for the protection of the child, independently of any link with a matrimonial proceeding.’

5.

In addition, recitals 12 and 13 of Regulation No 2201/2003 state as follows:

‘(12)

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.

(13)

In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case. However, in this case the second court should not be allowed to transfer the case to a third court.’

6.

Lastly, recital 33 of Regulation No 2201/2003 states:

‘This Regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union.’

7.

General jurisdiction in matters of parental responsibility is governed by Article 8 of the same regulation. Under Article 8(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.’

8.

Article 12(3)(a) and (b) of Regulation No 2201/2003 provides for a prorogation of jurisdiction in matters of parental responsibility in favour of the court having jurisdiction on an application for divorce, legal separation or marriage annulment where:

‘(a)

the child has a substantial connection with [the] Member State [of that court], in particular 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;

and

(b)

the jurisdiction of [that court] has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.’

9.

Derogation from the general jurisdiction of Article 8 of Regulation No 2201/2003 is, however, provided for in Article 15 thereof. Article 15, entitled ‘Transfer to a court better placed to hear the case’, provides as follows:

‘1.   By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:

(a)

stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or

(b)

request a court of another Member State to assume jurisdiction in accordance with paragraph 5.

2.   Paragraph 1 shall apply:

(a)

upon application from a party; or

(b)

of the court’s own motion; or

(c)

upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3.

A transfer made of the court’s own motion or by application of a court of another Member State must be accepted by at least one of the parties.

3.   The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:

(a)

has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or

(b)

is the former habitual residence of the child; or

(c)

is the place of the child’s nationality; or

(d)

is the habitual residence of a holder of parental responsibility; or

(e)

is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property.

4.   The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1.

If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

5.   The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

6.   The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.’

III – Facts giving rise to the dispute in the main proceedings

10.

Ms D., a United Kingdom national, was born on 15 November 1977. She arrived in Ireland on 29 September 2014, pregnant with her second child.

11.

Her eldest son, S., had been placed in institutional care in the United Kingdom during 2010 as a result of findings that Ms D., first, had a personality disorder (‘anti-social behaviour’) and secondly, had displayed physical violence towards that child.

12.

Whilst she still resided in the United Kingdom, Ms D. was subject to a prenatal assessment, organised by the child protection authorities in her place of residence in anticipation of the birth of her second child, R., on account of her medical and family history. In particular, it was evident from that assessment that Ms D. had shown affection towards her first child, that she had a positive outlook towards the birth of a second child and that she had made arrangements in preparation for that birth. She had demonstrated a willingness to work with social workers and had shown that she was able to maintain a long-term tenancy. Nonetheless, the competent authorities considered that that second child should be placed in a foster family pending the initiation of adoption proceedings by a third party.

13.

Ms D. therefore terminated her tenancy and sold her belongings in the United Kingdom in order to settle in Ireland. Her second child, R., was born in that second Member State a month later, on 25 October 2014. They have both resided there since that date.

14.

Shortly after R.’s birth, the Agency made an application to the District Court (Ireland) having jurisdiction for an order that that child be the subject of a placement measure. That application was refused, however, on the ground that the hearsay evidence from the United Kingdom on which the Agency relied was inadmissible.

15.

Following an appeal brought by the Agency, the Circuit Court (Ireland) having jurisdiction ordered the provisional placement of R. in a foster family. That measure has been renewed regularly since then. Ms D. has, however, acquired the right of regular access to her child, which she has exercised.

16.

The Agency has also requested that the High Court (Ireland) transfer the case to the High Court of Justice (England & Wales) (United Kingdom), under Article 15 of Regulation No 2201/2003. That request was supported by the guardian ad litem of R. (‘the Guardian’).

17.

By judgment of 26 March 2015, the High Court authorised the Agency to request that the High Court of Justice (England & Wales) assume jurisdiction with regard to the case at issue. However, according to the order for reference, the High Court did not decide to remove R. from his foster family.

18.

Ms D. applied for authorisation to appeal against that judgment directly before the Supreme Court, Ireland, which granted her application, after hearing the parties.

19.

In its decision to refer the matter, the Supreme Court acknowledges that the case falls within the exclusive jurisdiction of the child protection authorities and the Irish courts and has a number of doubts as to the conditions for applying Article 15 of Regulation No 2201/2003.

20.

First of all, it asks whether that provision applies to a case falling within the scope of public law, such as that in the main proceedings, despite the fact that no proceedings concerning R. are pending in the United Kingdom and that recognition of the jurisdiction of the courts of that Member State would therefore mean, subsequently, that the child protection authorities in that Member State themselves agree to examine the case of R.

21.

Next, the Supreme Court asks how to interpret the concept of ‘best interests of the child’, set out in Article 15(1) of Regulation No 2201/2003. It is of the view that it must be understood in the light of the objective of determining quickly the court having jurisdiction to hear a case falling within the scope of that regulation. It infers from this that implementation of that provision does not require that the court which would normally have jurisdiction carry out a ‘comprehensive examination of the substance’ of the best interests of the child, where it contemplates transferring that case to a court of another Member State that it considers better placed to hear the case. It concludes from this that the court having jurisdiction must rather carry out a summary assessment of that issue, in the light of the ‘principle that it is in the best interests of the child that an assessment should be carried out in the court best placed to carry out such an assessment’, on the condition that the court of the other Member State carries out a more in-depth analysis.

22.

Finally, the national court asks which factors should be taken into account in connection with a summary assessment of that kind. In that regard, it considers that the settling in Ireland of United Kingdom nationals who wish to conceal their children from the competent child protection authorities must not be encouraged and, more broadly, that opportunities for forum shopping must not be created or tolerated. However, it asks to what extent such considerations may be taken into account in the implementation of Article 15 of Regulation No 2201/2003.

23.

In those circumstances the Supreme Court decided to stay the proceedings and to refer the following six questions to the Court for a preliminary ruling.

IV – The request for a preliminary ruling and the procedure before the Court

24.

By decision of 31 July 2015, received at the Court on 4 August 2015, the Supreme Court therefore referred the following questions for a preliminary ruling:

‘(1)

Does Article 15 of Regulation 2201/2003 apply to public law care applications by a local authority in a Member State, when[,] if the Court of another Member State assumes jurisdiction, it will necessitate the commencement of separate proceedings by a different body pursuant to a different legal code and possibly, if not probably, relating to different factual circumstances?

(2)

If so, to what extent, if any, should a court consider the likely impact of any request under Article 15[,] if accepted, upon the right of freedom of movement of the individuals affected?

(3)

If the “best interests of the child” in Article 15(1) of Regulation 2201/2003 refers only to the decision as to forum, what factors may a court consider under this heading, which have not already been considered in determining whether another court is “better placed”?

(4)

May a court for the purposes of Article 15 of Regulation 2201/2003 have regard to the substantive law, procedural provisions, or practice of the courts of the relevant Member State?

(5)

To what extent should a national court, in considering Article 15 of Regulation 2201/2003, have regard to the specific circumstances of the case, including the desire of a mother to move beyond the reach of the social services of her home State, and thereafter give birth to her child in another jurisdiction with a social services system she considers more favourable?

(6)

Precisely what matters are to be considered by a national court in determining which court is best placed to determine the matter?’

25.

In addition, the national court has requested that the case be dealt with under the urgent preliminary ruling procedure provided for in Article 23a of the Statute of the Court of Justice of the European Union and Article 107 of the Rules of Procedure of the Court.

26.

At its administrative meeting of 14 August 2015, after hearing the Advocate General, the Fourth Chamber of the Court decided to refuse that request, having considered that the facts set out in support of that request did not establish the urgency required in order to justify applying that procedure.

27.

It was, however, decided to give the case priority, under Article 53(3) of the Rules of Procedure.

28.

Written observations were submitted by the Agency, Ms D., the Guardian, the Irish, Czech and Slovak Governments and the European Commission. With the exception of the Czech and Slovak Governments, they all also presented oral argument at the hearing held on 12 May 2016.

V – Analysis

29.

The first question referred by the national court is different from the five other questions. That question relates, in effect, to a ‘precondition’ for the application of Article 15 of Regulation No 2201/2003. By contrast, the following questions involve specifying the conditions for implementing that provision of Regulation No 2201/2003 and may be examined together.

A – The first question referred for a preliminary ruling

30.

By its first question, the national court asks whether Article 15 of Regulation No 2201/2003 may apply to child protection proceedings based on public law where they are brought by a local authority in a first Member State although it is an institution of another Member State which will have to bring separate proceedings, under different legislation and possibly, if not probably, relating to different factual circumstances, if the court of that other Member State assumes jurisdiction.

31.

In my view, this question calls for the examination of three separate issues. The first concerns the possible impact of classification of the proceedings as civil or public proceedings under national law. The second concerns the possibility of applying Article 15 of Regulation No 2201/2003 although no administrative or court proceedings are pending in the Member State of the court to which it is intended to transfer the case. The third is that of seising the court of the other Member State. Although the Court has already had occasion to address the first issue raised by the first question referred for a preliminary ruling, the two other issues are new ones.

1. The impact of classifying the proceedings as civil or public proceedings

32.

Under Article 1(1) of Regulation No 2201/2003, the scope of that regulation is limited to ‘civil matters’.

33.

The Court has already held that that term must be interpreted autonomously ( 3 ) and that the necessary uniform application of Regulation No 2201/2003 required that all decisions on parental responsibility fall within its scope. ( 4 )

34.

On the basis of those considerations, the Court considers that the term civil matters, which circumscribes the scope of Regulation No 2201/2003, must be interpreted as capable of extending to measures which, from the point of view of the legal system of a Member State, fall under public law. ( 5 )

35.

More specifically, the Court therefore held, on the basis of Article 1(2)(d) of Regulation No 2201/2003 ( 6 ) and recital 5 thereof, that decisions to take children into care are ‘inherently an act of the public authorities the aim of which is to satisfy the need to protect and assist young persons’. ( 7 ) It has also specified that ‘neither the judicial organisation of the Member States nor the conferral of powers on administrative authorities can affect the scope of that regulation or the interpretation of “civil matters”’. ( 8 )

36.

In conclusion, although parental responsibility as provided for in Regulation No 2201/2003 is therefore formally concerned with ‘civil matters’, the classification used in national legislation is irrelevant. ( 9 )

2. The need for administrative or court proceedings to be pending in the second Member State

37.

Under Article 8(1) of Regulation No 2201/2003, the court with jurisdiction in matters of parental responsibility is, in principle, that of the place where the child is habitually resident at the time the court is seised. Article 15 of Regulation No 2201/2003 allows derogation from that rule of general jurisdiction.

38.

According to the settled case-law of the Court, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part. The interpretation of the provisions of Regulation No 2201/2003 cannot derogate from those principles. ( 10 )

39.

With regard to the wording of Article 15 of Regulation No 2201/2003, it must be noted that it does not expressly require that administrative or court proceedings have already been brought in a Member State other than that of the court having jurisdiction on the basis of Article 8 of that regulation for that court to be able to apply Article 15.

40.

On the contrary, under Article 15(1) of Regulation No 2201/2003, if the court having jurisdiction as to the substance of the matter considers that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case and where this is in the best interests of the child, it may, either request a court of another Member State to assume jurisdiction, or, stay the case and ‘invite the parties to introduce a request before the court of that other Member State’. ( 11 )

41.

Although the provision provides that the parties are invited to ‘introduce a request’ before the court of another Member State, this means that no similar request is, a priori, pending before that other court.

42.

That interpretation, in accordance with which it is not necessary for administrative or court proceedings already to be pending in the second Member State in order to make use of Article 15 of Regulation No 2201/2003, seems to me also to be consistent with the objectives pursued by that regulation.

43.

In accordance with recital 12 thereof, the grounds of jurisdiction established by Regulation No 2201/2003 are shaped in the light of the best interests of the child, in particular on the criterion of proximity. ( 12 ) It follows that the regulation proceeds from the idea that the best interests of the child must come first. ( 13 )

44.

On the basis of those considerations, the Court has held that the prorogation of jurisdiction rule provided for in Article 12(3) of Regulation No 2201/2003 — which is also a derogation from the rule of general jurisdiction — may be applied without it being necessary for the proceedings in matters of parental responsibility to be related to other proceedings already pending before the court in whose favour the prorogation of jurisdiction is sought. ( 14 ) According to the Court, the contrary interpretation would render the provision redundant. ( 15 ) Moreover, it would go against the objectives pursued by Regulation No 2201/2003, since it would have the consequence of excluding the possibility of having recourse to that prorogation in numerous situations, even where it might be in the best interests of the child concerned. ( 16 )

45.

It seems to me that the same finding may be made with regard to the derogation from jurisdiction introduced by Article 15 of Regulation No 2201/2003. In the situation covered by that provision, it is also necessary to confer jurisdiction on a court which is more appropriate for serving the best interests of the child, particularly since Article 15 of Regulation No 2201/2003 expressly states that the exception may be exercised only if it is in those interests.

46.

Both the wording of Article 15 of Regulation No 2201/2003 and the objectives pursued by that regulation therefore justify the adoption of an interpretation that that article may be applied even though no administrative or court proceedings are currently pending in the Member State to which the court which would normally have jurisdiction intends to transfer the case.

3. Seising the court of the other Member State

47.

In accordance with the interpretation of Article 15 of Regulation No 2201/2003 that I propose, it is not necessary for administrative or court proceedings already to be pending in the Member State to which the court which would normally have jurisdiction intends to transfer the case. The first question referred by the national court leads me, nevertheless, to specify the manner in which the court of the other Member State may be prompted to hear the case.

48.

According to the national court, ‘if the Court of another Member State assumes jurisdiction, it will necessitate the commencement of separate proceedings by a different body pursuant to a different legal code and possibly, if not probably, relating to different factual circumstances’.

49.

Prima facie, the question contains a contradiction: how can a court assume jurisdiction if it is necessary for separate proceedings to be brought, subsequently, for that purpose?

50.

Article 15 of Regulation No 2201/2003 is an exception to the system of general jurisdiction laid down by that regulation. On that basis, it must be interpreted restrictively. ( 17 )

51.

However, as I have already stated, if the court having jurisdiction as to the substance of the matter considers that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case and if this is in the best interests of that child, Article 15 of Regulation No 2201/2003 provides for only two possibilities.

52.

Under Article 15(1) of Regulation No 2201/2003, the court which would normally have jurisdiction may ‘stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State [within a time limit which it specifies]’ ( 18 ) or ‘request a court of another Member State to assume jurisdiction’. ( 19 )

53.

Article 15(4) of Regulation No 2201/2003 also requires that ‘the courts of that other Member State [be] seised in accordance with paragraph 1’ ( 20 ) and Article 15(5) lays down, again, that ‘the courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b)’. ( 21 ) There are therefore only two possible scenarios, namely the introduction of a request by the parties to the dispute pending before the court having jurisdiction as to the substance of the matter or an invitation by that court, to the other court, to accept jurisdiction.

54.

However, according to the national court, the court of the other Member State may deal with the case for which the first Member State is requesting it to assume jurisdiction pursuant to Article 15 of Regulation No 2201/2003 only if the United Kingdom local authority brings before it separate proceedings on the basis of the legislation of the second Member State. ( 22 )

55.

The jurisdiction of the court of the other Member State will therefore be subject to the introduction of a new request, by a body of that other Member State which is not a party to the proceedings pending before the first court.

56.

It must be noted that that situation is not expressly provided for by Article 15 of Regulation No 2201/2003. Therefore, since that article must be interpreted restrictively, it cannot, in my view, be used in such a situation.

57.

I would again point out that Article 55 of Regulation No 2201/2003, entitled ‘Cooperation on cases specific to parental responsibility’, does not seem to me to be capable of altering that analysis. Although that provision refers to Article 15 of the regulation, this is solely in order to ‘facilitate communications between courts’. ( 23 )

4. Interim conclusion

58.

In the light of the foregoing considerations, I propose that the answer to the first question referred by the national court should be that Article 15 of Regulation No 2201/2003 may be applied in respect of child protection proceedings classified as being public law proceedings under national law even though no administrative or court proceedings are yet pending in the Member State to which the court having jurisdiction as to the substance of the matter intends to transfer the case. However, that provision does not apply if the jurisdiction of the court to which it is intended to transfer the case is conditional on the proceedings being brought by an applicant who is not a party to the proceedings before the court which would normally have jurisdiction.

B – The second to sixth questions referred for a preliminary ruling

59.

By its second to sixth questions, the national court seeks to obtain clarification as to the conditions for implementing Article 15 of Regulation No 2201/2003. As I stated above, I shall give an overall response to those questions. However, it is necessary, at the outset, to determine the conditions laid down in Article 15 of Regulation No 2201/2003 and their scope.

1. The conditions imposed by Article 15(1) of Regulation No 2201/2003 (third question referred for a preliminary ruling)

60.

Article 15 of Regulation No 2201/2003 sets out three formal conditions for referral of the case to another court by the court having jurisdiction as to the substance of the matter. The child must have a particular connection with the other Member State, the court of that other State must be better placed to hear the case and this must be in the best interests of the child.

61.

The first condition is set out in detail in Article 15(3) of Regulation No 2201/2003. There is little to discuss in that regard. First, the list set out in that provision is prescriptive. It is not accompanied by any wording to suggest that it is an illustrative list, such as the adverb ‘inter alia’ or the expression ‘for example’. Secondly, it sets out one of the conditions for the exception authorised by Article 15(1). Accordingly, it must be interpreted restrictively. ( 24 )

62.

The list in Article 15(3) of Regulation No 2201/2003 must, therefore, be understood as an exhaustive list of situations in which the particular connection required by Article 15(1) is presumed to be established. ( 25 )

63.

The interpretation of the two other conditions — the court better placed and the best interests of the child — is more problematic, since the EU legislature has neither defined them nor given any criteria for their assessment.

64.

First, of all, it is necessary to determine whether this is a question of two cumulative conditions which must be assessed separately or whether both conditions may be examined together by the national courts.

65.

In its written observations, the Commission takes the view that they are inseparable and that the ‘best interest’ criterion merely affects the discretion conferred on the court by Article 15(1) of Regulation No 2201/2003. ( 26 ) To that end, the determination of the court best placed may be carried out only with due regard for the best interests of the child. Those two criteria will therefore form part of one and the same evaluation process.

66.

I agree with that interpretation of Article 15(1) of Regulation No 2201/2003, which seems to me to be consistent with the objectives pursued by that regulation.

67.

Indeed, the use of the conjunction ‘and’ suggests a distinction between the two conditions. The statement concerning the best interests of the child seems to me, however, to be not an independent condition, but a repetition of the general objective underlying the grounds of jurisdiction in matters of parental responsibility. As I have already pointed out, those grounds are shaped in the light of the best interest of the child, in particular on the criterion of proximity. ( 27 )

68.

That combined reading of both criteria of Article 15(1) of Regulation No 2201/2003 is consistent with the intentions of the legislature as set out in recitals 12 and 13 of that regulation. According to recital 12, ‘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’. Nevertheless, recital 13 states that, ‘in the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case’. ( 28 )

69.

That analysis is further strengthened by recital 33 of Regulation No 2201/2003. According to that recital, the regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. To that end, ‘in particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union’. However, pursuant to Article 24(2), ‘in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration’.

70.

It is clear from those recitals that the exception to general jurisdiction may be exercised only in favour of a court that is better placed having regard to the interest of the child and that, to that end, the best interests of the child are not a condition for the exception which must be analysed separately but the general criterion which must guide every decision concerning jurisdiction in matters of parental responsibility, whether a decision of principle or an exceptional one. The interest of the child is set out as a general assessment factor in recital 12 and it is referred to in recital 13 as an introduction to the exception. It follows from those recitals that ‘jurisdiction in matters of parental responsibility must be determined, above all, in the best interests of the child’. ( 29 )

71.

In the context of Article 15(1) of Regulation No 2201/2003, the EU legislature has chosen as a circumstance which may result in a derogation from the criterion of proximity the ‘particular connection’ that a child may have with another Member State. However, the circumstances set out in Article 15(3) do not necessarily mean that the court of the other Member State is better placed to hear the case. This is why the court which would normally have jurisdiction must assess, having regard to the interests of the child, whether this is a possibility. ( 30 )

72.

I therefore consider that Article 15(1) of Regulation No 2201/2003 requires that it be verified that the court to which the court which would normally have jurisdiction intends to transfer the case is better placed than it to deliver a judgment relating to parental responsibility which best serves the interests of the child. It is also in the light of that criterion alone that the court to which the case has been transferred will or will not agree to exercise jurisdiction on the basis of Article 15(5) of Regulation No 2201/2003. The question is therefore not whether the outcome of the dispute will be the most favourable to the interests of the child, but whether the transfer of jurisdiction serves those interests.

73.

In other words, the best interests of the child are the condition and the basis for decisions by the court which would normally have jurisdiction to transfer the case to another court (Article 15(1)) and by the court to which the transfer is addressed to accept it (Article 15(5)). ( 31 )

74.

To conclude, I would add that it seems to me that whether the second and third conditions imposed by Article 15(1) of Regulation No 2201/2003 are analysed separately or together will have no specific impact since all three conditions of that provision must, in any event, all be satisfied.

75.

However, since the issue raised concerns only jurisdiction and not the substance of the matter, I fail to see how a court would be able to decide that another court is better placed to give judgment in a case relating to parental responsibility without it being in the interests of the child. Similarly, I fail to see how a transfer of jurisdiction can be in the interests of the child even though the court to which the case is transferred is not best placed to give judgment in that case. The examination of the conditions of the court ‘best placed to hear the case’ and of the ‘best interests of the child’ must, it seems to me, cover both conditions.

2. The factors that may be taken into account in assessing the court best placed to hear the case

a) Observations on the limits imposed on the Court (sixth question referred for a preliminary ruling)

76.

First of all, I note that, under Article 13(2) TEU, it is for the Court to act within the limits of the powers conferred on it by the Treaties. In the context of Article 267 TFEU, the Court therefore has jurisdiction to give rulings concerning the validity and interpretation of acts of the institutions.

77.

Responding in that regard to the sixth question referred for a preliminary ruling, I therefore consider that it is not for the Court to set out a list of specific points that a national court must examine in order to determine the court best placed to give a ruling since the EU legislature itself did not consider it appropriate to do so. ( 32 )

78.

However, it is for the Court to provide the national court with guidance as to interpretation which is of assistance in giving judgment in the case brought before it.

b) The need to have regard to the substantive law, procedural provisions or practice of the courts of the Member State which may have jurisdiction (fourth question referred for a preliminary ruling)

79.

By its fourth question, the national court asks whether the court which intends to apply Article 15(1) of Regulation No 2201/2003 must have regard to the substantive law, procedural provisions or practice of the court of the other Member State that may have jurisdiction.

80.

Ireland submits that that court does not have to carry out a comparative assessment of that kind of the procedural provisions, rules of substantive law or the case-law concerning those rules. ( 33 ) The Commission is less categorical. It takes the view that that court should not ‘systematically’ carry out an analysis of the procedural provisions, conflict-of-law rules and applicable substantive laws. ( 34 )

81.

I think that excluding the analysis of substantive law from the application of Article 15 of Regulation No 2201/2003 is consistent with the principle of mutual trust which underlies the whole of that regulation.

82.

As the Court has already had occasion to specify, it is that mutual trust which has enabled a compulsory system of jurisdiction to be established, which all the courts within the purview of Regulation No 2201/2003 are required to respect. ( 35 )

83.

That trust is such that it has even enabled the introduction of a specific scheme in order to facilitate enforcement of judgments on rights of access that are considered to be essential in order to protect the fundamental right of the child, laid down in Article 24(3) of the Charter of Fundamental Rights of the European Union, to maintain a relationship and direct contact with both parents.

84.

The Court has held that ‘that scheme is based on the principle of mutual trust between Member States in the fact that their respective national legal systems are capable of providing an equivalent and effective protection of fundamental rights, recognised at EU level, in particular, in the Charter of Fundamental Rights of the European Union (judgment in Aguirre Zarraga, C‑491/10 PPU, EU:C:2010:828, paragraph 70), and precludes any review of the judgment given by the court of the State of origin’. ( 36 )

85.

It is therefore only the forum which is most appropriate for serving the interests of the child that must be assessed by the court initially having jurisdiction. ( 37 ) To that end, it will bear in mind that ‘jurisdiction in matters of parental responsibility must be determined, above all, in the best interests of the child’. ( 38 )

86.

It is therefore a question not of determining the place where the best outcome as to the substance of the case will be obtained, but of identifying the court best placed to determine that outcome. To that end, an examination of the procedural rules governing the exercise of the jurisdiction of the other court or the practices followed may be useful. They are, by definition, the rules which govern the exercise of jurisdiction.

87.

Since the general framework for the analysis has been better defined, I shall now try to identify some of the specific factors that may be taken into consideration, in particular among the procedural rules, in order to determine the court best placed to hear the case.

c) The factors that may be taken into account (second, third and fifth questions referred for a preliminary ruling)

88.

As I have already pointed out several times, it has been confirmed in the settled case-law that the grounds of jurisdiction of Regulation No 2201/2003 are shaped in the light of the criterion of proximity, with a view to ensuring that the local court which is the most closely connected to the child rules in the best interests of that child. ( 39 )

89.

As I have also already stated in point 70 of this Opinion, it is clear from recitals 12 and 13 of that regulation that the best interests of the child are the general criterion which must guide every decision concerning jurisdiction in matters of parental responsibility, whether a decision of principle or an exceptional one.

90.

If it wishes to apply Article 15(1) of Regulation No 2201/2003, the court which would normally have jurisdiction must therefore find factors capable of rebutting the strong presumption in favour of the State where the child is habitually resident. That examination must be carried out on the basis of an analysis in concreto, ( 40 ) since the court must analyse why, specifically, those factors take precedence over its jurisdiction.

91.

Ultimately, the court which would normally have jurisdiction must make sure that the judgment relating to parental responsibility will be given by the court which has the closest connections with the factors of the particular case.

92.

In order to determine that court, I share the view of Advocate General Cruz Villalón concerning the determination of the habitual residence of a child, in accordance with which ‘that examination ... must be carried out from the point of view of the child and never from the point of view of the parents, whatever the legitimacy of their application concerning the child’. ( 41 )

93.

Accordingly, to reproduce the example given by the national court in its fifth question, the desire of a mother to move beyond the reach of the social services of her home State to another Member State with a social services system she considers to be more favourable does not, in itself, seem to me to be relevant in determining the court best placed to hear the case. In other words, that factor may be considered only if it is capable of having an impact on the ability of the court to hear the case in the interests of the child.

94.

Following the same line of argument, consideration of the free movement of the persons concerned makes sense only if it can have an impact on the determination of the ability of a court to hear the case in the best interests of the child.

95.

However, factors such as the language of the proceedings, the availability of relevant evidence concerning, for example, the ability of the parent or parents to provide education and maintenance, the possibility of calling appropriate witnesses and the probability that those witnesses will appear in court, the availability of medical and social reports and the possibility of updating those reports, where appropriate, and even the period within which the judgment will be delivered ( 42 ) may have a direct impact on the ability of a court to assess the case in the interests of the child. They may therefore be taken into consideration.

96.

The location of those factors or some of them in the territory of a Member State other than that of the court which would normally have jurisdiction must not detract from the importance of the environment in which the child develops — that is to say the environment of his habitual residence — and the possible impact on his physical and moral well-being of any move connected with a transfer of the case to a court in another Member State.

97.

In that regard, I consider that certain documents useful in assessing the case could, for example, be easily obtained merely by making use of the cooperation requirement laid down in Article 15(5) of Regulation No 2201/2003.

3. Interim conclusion

98.

In the light of the foregoing considerations, I therefore take the view that Article 15(1) of Regulation No 2201/2003 requires that the court which would normally have jurisdiction establish that the court to which it intends to transfer the case is better placed than it to deliver a judgment relating to parental responsibility which better serves the best interests of the child.

99.

To that end, the first court must ensure that the judgment relating to parental responsibility will be given by the court which has the closest connection with the relevant elements of the particular case. The examination must be carried out from the point of view of the child in order to protect his interests and the court which would normally have jurisdiction must not carry out a comparative analysis of the substantive law that will be applied by the courts of the other Member State. However, an analysis of the applicable procedural provisions or of the practices normally followed by the courts of that other Member State may be useful. Factors such as the language of the proceedings, the availability of relevant evidence, the possibility of calling appropriate witnesses and the probability that those witnesses will appear in court, the availability of medical and social reports and the possibility of updating those reports, where appropriate, as well as the period within which the judgment will be delivered may be taken into consideration.

100.

The location of those factors or some of them in the territory of a Member State other than that of the court which would normally have jurisdiction must not detract from the importance of the environment in which the child develops and the possible impact on his physical and moral well-being of any move connected with a transfer of the case to a court in another Member State.

VI – Conclusion

101.

In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Supreme Court (Ireland) as follows:

(1)

Article 15 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 may be applied in respect of child protection proceedings classified as being public law proceedings under national law even though no administrative or court proceedings are yet pending in the Member State to which the court having jurisdiction as to the substance of the matter intends to transfer the case. However, that provision does not apply if the jurisdiction of the court to which it is intended to transfer the case is made conditional on the proceedings being brought by an applicant who is not a party to the proceedings before the court which would normally have jurisdiction.

(2)

Article 15(1) of Regulation No 2201/2003 requires that the court having jurisdiction as to the substance of the matter establish that the court to which it intends to transfer the case is better placed than it to deliver a judgment relating to parental responsibility which better serves the best interests of the child.

To that end, the court must ensure that the judgment relating to parental responsibility will be given by the court which has the closest connections with the factors of the particular case. The examination must be carried out from the point of view of the child in order to protect his interests and the court having jurisdiction as to the substance of the matter must not carry out a comparative analysis of the substantive law that will be applied by the courts of the other Member State. However, an analysis of the applicable procedural provisions or of the practices normally followed by the courts of that other Member State may be useful. Factors such as the language of the proceedings, the availability of relevant evidence, the possibility of calling appropriate witnesses and the probability that those witnesses will appear in court, the availability of medical and social reports and the possibility of updating those reports, where appropriate, as well as the period within which the judgment will be delivered may be taken into consideration.

The location of those factors or some of them in the territory of a Member State other than that of the court which would normally have jurisdiction must not detract from the importance of the environment in which the child develops and the possible impact on his physical and moral well-being of any move connected with a transfer of the case to a court in another Member State.


( 1 ) Original language: French.

( 2 ) OJ 2003 L 338, p. 1.

( 3 ) See, to that effect, judgment in C (C‑435/06, EU:C:2007:714, paragraph 46).

( 4 ) See, to that effect, judgment in C (C‑435/06, EU:C:2007:714, paragraphs 47 and 48).

( 5 ) See, to that effect, judgments in C (C‑435/06, EU:C:2007:714, paragraph 51) and A (C‑523/07, EU:C:2009:225, paragraph 27). With regard to Irish legislation, see judgment in Health Service Executive (C‑92/12 PPU, EU:C:2012:255, paragraph 60).

( 6 ) Under Article 1(2)(d) of Regulation No 2201/2003, the placement of a child in a foster family or in institutional care is a matter relating to parental responsibility.

( 7 ) Judgment in A (C‑523/07, EU:C:2009:225, paragraph 26).

( 8 ) Judgment in C (C‑435/06, EU:C:2007:714, paragraph 45).

( 9 ) See, inter alia, A. Dutta and A. Schultz, ‘First Cornerstones of the EU Rules on Cross-border Child Cases: the Jurisprudence of the Court of Justice of the European Union on the Brussels IIA Regulation from C to Health Service Executive’, Journal of Private International Law, 2014, pp. 1 to 40, in particular pp. 5 to 7; E. Gallant, ‘Règlement (CE) No 2201/2003 du 27 novembre 2003 relatif à la compétence, la reconnaissance et l’exécution des décisions en matière matrimoniale et en matière de responsabilité parentale abrogeant le règlement No 1347/2000’, in Torck, S., Cadiet, L., and Jeuland, E., (ed.), Droit processuel civil de lUnion européenne, LexisNexis, 2011, pp. 59 to 98, in particular No 177.

( 10 ) For an example of the application of those principles in the interpretation of a provision of Regulation No 2201/2003, see, inter alia, judgment in L (C‑656/13, EU:C:2014:2364).

( 11 ) Emphasis added.

( 12 ) See, to that effect, judgments in A (C‑523/07, EU:C:2009:225, paragraph 35); Detiček (C‑403/09 PPU, EU:C:2009:810, paragraph 35); Mercredi (C‑497/10 PPU, EU:C:2010:829, paragraph 46); E. (C‑436/13, EU:C:2014:2246, paragraph 44), and L (C‑656/13, EU:C:2014:2364, paragraph 48). See, also, judgment in Purrucker (C‑256/09, EU:C:2010:437, paragraph 91).

( 13 ) See, to that effect, judgment in L (C‑656/13, EU:C:2014:2364, paragraph 48).

( 14 ) Judgment in L (C‑656/13, EU:C:2014:2364, paragraph 45).

( 15 ) Judgment in L (C‑656/13, EU:C:2014:2364, paragraph 46).

( 16 ) Judgment in L (C‑656/13, EU:C:2014:2364, paragraph 48).

( 17 ) See, to that effect, judgment in Detiček (C‑403/09 PPU, EU:C:2009:810, paragraph 38).

( 18 ) Article 15(1)(a) of Regulation No 2201/2003.

( 19 ) Article 15(1)(b) of Regulation No 2201/2003.

( 20 ) Emphasis added.

( 21 ) Emphasis added.

( 22 ) Paragraph 17 of the order for reference.

( 23 ) Emphasis added.

( 24 ) See, to that effect, judgment in Detiček (C‑403/09 PPU, EU:C:2009:810, paragraph 38).

( 25 ) The legal literature consulted appears to be unanimous in that regard. See, inter alia, Franck, St., ‘La responsabilité parentale en droit international privé. Entrée en vigueur du règlement Bruxelles II bis et du Code de droit international privé’, Revue trimestrielle de droit familial, 2005, p. 700; Gallant, E., ‘Règlement (CE) No 2201/2003 du 27 novembre 2003 relatif à la compétence, la reconnaissance et l’exécution des décisions en matière matrimoniale et en matière de responsabilité parentale abrogeant le règlement No 1347/2000’, in Torck, S., Cadiet, L., and Jeuland, E., (ed.), Droit processuel civil de lUnion européenne, LexisNexis, 2011, pp. 59 to 98, in particular No 177; Ancel, B., and Muir Watt, H., ‘L’intérêt supérieur de l’enfant dans le concert des juridictions: le Règlement Bruxelles II bis’, Revue critique de droit international privé, 2005, p. 569 et seq., in particular No 29.

( 26 ) See paragraph 33 of the written observations of the Commission.

( 27 ) See point 43 of this Opinion and the case-law cited in footnote 12.

( 28 ) Emphasis added.

( 29 ) Judgment in E. (C‑436/13, EU:C:2014:2246, paragraph 45). Emphasis added.

( 30 ) See, to that effect, Dutta, A., and Schultz, A., ‘First Cornerstones of the EU Rules on Cross-border Child Cases: the Jurisprudence of the Court of Justice of the European Union on the Brussels II A Regulation from C to Health Service Executive’, Journal of Private International Law, 2014, pp. 1 to 40, in particular p. 8; Gallant, E., ‘Règlement (CE) No 2201/2003 du 27 novembre 2003 relatif à la compétence, la reconnaissance et l’exécution des décisions en matière matrimoniale et en matière de responsabilité parentale abrogeant le règlement No 1347/2000’, in Torck, S., Cadiet, L., and Jeuland, E. (ed.), Droit processuel civil de lUnion européenne, LexisNexis, 2011, pp. 59 to 98, in particular No 217.

( 31 ) See, to that effect, Ancel, B., and Muir Watt, H., ‘L’intérêt supérieur de l’enfant dans le concert des juridictions: le Règlement Bruxelles II bis’, Revue critique de droit international privé, 2005, p. 569 et seq., in particular No 29.

( 32 ) See, to that effect, Opinion of Advocate General Sharpston in Sturgeon and Others (C‑402/07 and C‑432/07, EU:C:2009:416, point 94).

( 33 ) See paragraph 46 of the written observations of Ireland.

( 34 ) See paragraph 28 of the written observations of the Commission.

( 35 ) See, to that effect, judgment in Purrucker (C‑256/09, EU:C:2010:437, paragraph 72).

( 36 ) Judgment in Bohez (C‑4/14, EU:C:2015:563, paragraph 58).

( 37 ) See, to that effect, Henricot, C., ‘Le mécanisme de renvoi dans l’article 15 du règlement Bruxelles II bis’, Revue trimestrielle de droit familial, 2008, pp. 526 to 533, in particular p. 529, as well as Ancel, B., and Muir Watt, H., ‘L’intérêt supérieur de l’enfant dans le concert des juridictions: le Règlement Bruxelles II bis’, Revue critique de droit international privé, 2005, p. 569 et seq., in particular No 28.

( 38 ) Judgment in E. (C‑436/13, EU:C:2014:2246, paragraph 45). Emphasis added.

( 39 ) See points 43 and 67 of this Opinion and the case-law cited in footnote 12.

( 40 ) See, to that effect, Henricot, C., ‘Le mécanisme de renvoi dans l’article 15 du règlement Bruxelles II bis’, Revue trimestrielle de droit familial, 2008, pp. 526 to 533, in particular p. 530.

( 41 ) View of Advocate General Cruz Villalón in Mercredi (C‑497/10 PPU, EU:C:2010:738, point 93).

( 42 ) Some authors have expressed doubts as to the relevance of that criterion given the ‘hazardous’ nature of any forecast made by the court of the other Member State concerning compliance with the reasonable period (see, to that effect, Wautelet, P., ‘Règlement (CE) No 2201/2003 relatif à la compétence, la reconnaissance et l’exécution des décisions en matière matrimoniale et en matière de responsabilité parentale abrogeant le règlement (CE) No 1347/2000 (dit “Bruxelles II bis”)’, in Droit judiciaire européen et international, La jurisprudence du code judiciaire commentée, vol. 5. La Charte, 2012, pp. 363 to 482, and in particular p. 424). In my view, however, the importance of a reaching a prompt decision in disputes involving a child takes precedence over the difficulty of making such an assessment of that period. As Dutta, A., and Schultz, A., state by way of introduction, ‘it is a commonplace that in child matters the time factor plays an important role: cross-border child disputes are a race against the clock …’ (Dutta, A., and Schultz, A., ‘First Cornerstones of the EU Rules on Cross-border Child Cases: the Jurisprudence of the Court of Justice of the European Union on the Brussels IIA Regulation from C to Health Service Executive’, Journal of Private International Law, 2014, pp. 1 to 40, in particular p. 2).

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