CASO

Texto completo no disponible

Nombre del caso

A. (C-523/07)

Referencia INCADAT

HC/E/1000

Tribunal

Instancia

Tribunal de Justicia de la Unión Europea (TJUE)

Estados involucrados

Fallo

Fecha

2 April 2009

Estado

Definitiva

Fundamentos

Reglamento Bruselas II bis Reglamento (CE) No 2201/2003 del Consejo

Fallo

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Artículo(s) del Convenio considerados

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Artículo(s) del Convenio invocados en la decisión

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Otras disposiciones
Arts. 8, 13, 20 del Reglamento Bruselas II bis Reglamento (CE) nº 2201/2003 del Consejo
Jurisprudencia | Casos referidos

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INCADAT comentario

Interrelación con instrumentos internacionales y regionales y Derecho interno

Reglamento Bruselas II bis - Reglamento (CE) nº 2201/2003 del Consejo
Reglamento Bruselas II bis

SUMARIO

Sumario disponible en EN

Facts

The proceedings related to three children who had lived in both Finland and Sweden with their mother and step-father. Following violence at the hands of the step father, two of the children were taken into care by a local authority in Finland. The measure was discontinued and the family then relocated to Sweden in December 2001.

In the summer of 2005 the family went to Finland on vacation. The family lived in caravans and on various campsites; the children did not go to school. On 30 October 2005 the family applied for social housing. It was the mother's case that in mid-November she and the step father went to Sweden leaving the children in the care of the step-father's sister.

On 16 November the children were taken into care on the ground that they had been abandoned. This administrative decision was confirmed in December 2005. The mother then commenced legal proceedings to have the decisions quashed and for the children to be returned into her care. On 25 October 2006 the court of first instance upheld the decisions, finding that the living conditions had seriously endangered the children.

The mother then lodged an appeal in which she alleged that the Finnish authorities lacked competence in the case since the children were Swedish nationals and their permanent residence was in Sweden; the matter therefore fell within the jurisdiction of the Swedish courts.

The Supreme Administrative Court, the Korkein hallinto-oikeus, stayed the proceedings and sought a preliminary ruling on the application of Council Regulation 2201/2003 as regards: the applicability of the Regulation to public law proceedings; the operation of the provision on protective measures; and the interpretation of habitual residence. The present summary refers solely to the analysis given to habitual residence for this will impact on how the connecting factor is interpreted in intra-EU cases of child abduction.

On 29 January 2009 Advocate General Kokott delivered her opinion: http://curia.europa.eu/juris/document/document.jsf?text=&docid=75436&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=252582.

Ruling

Preliminary ruling given, inter alia, on the meaning of habitual residence as a Community concept within Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003).

Grounds

Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

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INCADAT comment

Brussels II a Regulation

The application of the 1980 Hague Convention within the Member States of the European Union (Denmark excepted) has been amended following the entry into force 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, see:

Affaire C-195/08 PPU Rinau v. Rinau, [2008] ECR I 5271 [2008] 2 FLR 1495 [Référence INCADAT : HC/E/ 987];

Affaire C 403/09 PPU Detiček v. Sgueglia, [Référence INCADAT : HC/E/ 1327].

The Hague Convention remains the primary tool to combat child abductions within the European Union but its operation has been fine tuned.

An autonomous EU definition of ‘rights of custody' has been adopted: Article 2(9) of the Brussels II a Regulation, which is essentially the same as that found in Article 5 a) of the Hague Child Abduction Convention. There is equally an EU formula for determining the wrongfulness of a removal or retention: Article 2(11) of the Regulation. The latter embodies the key elements of Article 3 of the Convention, but adds an explanation as to the joint exercise of custody rights, an explanation which accords with international case law.

See: Case C-400/10 PPU J Mc.B. v. L.E, [INCADAT cite: HC/E/ 1104].

Of greater significance is Article 11 of the Brussels II a Regulation.

Article 11(2) of the Brussels II a Regulation requires that when applying Articles 12 and 13 of the 1980 Hague Convention that the child is given the opportunity to be heard during the proceedings, unless this appears inappropriate having regard to his age or degree of maturity.

This obligation has led to a realignment in judicial practice in England, see:

Re D. (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 A.C. 619 [INCADAT cite: HC/E/UKe 880] where Baroness Hale noted that the reform would lead to children being heard more frequently in Hague cases than had hitherto happened.

Re M. (A Child) (Abduction: Child's Objections to Return) [2007] EWCA Civ 260, [2007] 2 FLR 72,  [INCADAT cite: HC/E/UKe 901]

The Court of Appeal endorsed the suggestion by Baroness Hale that the requirement under the Brussels II a Regulation to ascertain the views of children of sufficient age of maturity was not restricted to intra-European Community cases of child abduction, but was a principle of universal application.

Article 11(3) of the Brussels II a Regulation requires Convention proceedings to be dealt with within 6 weeks.

Klentzeris v. Klentzeris [2007] EWCA Civ 533, [2007] 2 FLR 996, [INCADAT cite: HC/E/UKe 931]

Thorpe LJ held that this extended to appeal hearings and as such recommended that applications for permission to appeal should be made directly to the trial judge and that the normal 21 day period for lodging a notice of appeal should be restricted.

Article 11(4) of the Brussels II a Regulation provides that the return of a child cannot be refused under Article 13(1) b) of the Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his return.

Cases in which reliance has been placed on Article 11(4) of the Brussels II a Regulation to make a return order include:

France
CA Bordeaux, 19 janvier 2007, No 06/002739 [INCADAT cite: HC/E/FR 947];

CA Paris 15 février 2007 [INCADAT cite: HC/E/FR 979].

The relevant protection was found not to exist, leading to a non-return order being made, in:

CA Aix-en-Provence, 30 novembre 2006, N° RG 06/03661 [INCADAT cite: HC/E/FR 717].

The most notable element of Article 11 is the new mechanism which is now applied where a non-return order is made on the basis of Article 13.  This allows the authorities in the State of the child's habitual residence to rule on whether the child should be sent back notwithstanding the non-return order.  If a subsequent return order is made under Article 11(7) of the Regulation, and is certified by the issuing judge, then it will be automatically enforceable in the State of refuge and all other EU-Member States.

Article 11(7) Brussels II a Regulation - Return Order Granted:

Re A. (Custody Decision after Maltese Non-return Order: Brussels II Revised) [2006] EWHC 3397 (Fam.), [2007] 1 FLR 1923 [INCADAT cite: HC/E/UKe 883]

Article 11(7) Brussels II a Regulation - Return Order Refused:

Re A. H.A. v. M.B. (Brussels II Revised: Article 11(7) Application) [2007] EWHC 2016 (Fam), [2008] 1 FLR 289, [INCADAT cite: HC/E/UKe 930].

The CJEU has ruled that a subsequent return order does not have to be a final order for custody:

Case C-211/10 PPU Povse v. Alpago, [INCADAT cite: HC/E/ 1328].

In this case it was further held that the enforcement of a return order cannot be refused as a result of a change of circumstances.  Such a change must be raised before the competent court in the Member State of origin.

Furthermore abducting parents may not seek to subvert the deterrent effect of Council Regulation 2201/2003 in seeking to obtain provisional measures to prevent the enforcement of a custody order aimed at securing the return of an abducted child:

Case C 403/09 PPU Detiček v. Sgueglia, [INCADAT cite: HC/E/ 1327].

For academic commentary on the new EU regime see:

P. McEleavy ‘The New Child Abduction Regime in the European Community: Symbiotic Relationship or Forced Partnership?' [2005] Journal of Private International Law 5 - 34.