Case law Developments in PIL

The Greek Supreme Court on Jurisdiction in Matters of Parental Responsibility

On 26 July 2019, the Greek Supreme Court gave a ruling involving the interpretation of the Brussels II bis Regulation in a matter of parental responsibility (Ruling No 927 of 2019).

The facts

A. and B., of Greek and German nationality, respectively, an unmarried couple, had two children. They all lived in Greece.

The mother, B., seised the Court of First Instance of Rhodes seeking the exclusive custody of the children as well as an interim measure to the same effect. In the resulting summary proceedings, A., the father, declared that he would not object, as long as the court ordered that the children keep their habitual residence in Rhodes. B. stated that she did not intend to relocate the children.

The Court provisionally granted exclusive custody to B., without issuing any order regarding the habitual residence of the children. A hearing on the merits was scheduled to take place a few months later.

Shortly after the above prrovisional order was issued, B. informed A. that she planned to spend Christmas with the children at her parents’ house in Germany.

A. formally notified B. that he disagreed. Nevertheless, B. travelled to Germany with the children. Although she had bought return tickets, she eventually decided to stay in Germany with the children.

As a reaction, A. sought the revocation of the provisional measures on custody, as well as the return of the children to Greece and an order granting him exclusive custody rights. A.’s efforts were initially successful. The provisional measures were revoked, and custody was provisionally granted to him.

B., however, challenged the jurisdiction of the Greek courts over A.’s action for custody.

The Rhodes Court of First Instance considered the challenge to be founded and accordingly declined jurisdiction. A.’s appeal against this decision was dismissed by the Dodecanese Court of Appeal.

The Supreme Court’s ruling

The case reached the Supreme Court. The latter began by considering Article 8 of the Brussels II bis Regulation, whereby, as a general rule, jurisdiction over matters of parental responsibility lies with the courts of the Member State where the child habitually resides. The Supreme Court held that relocation while proceedings are pending does not affect the jurisdiction of the court seised.

The Supreme Court agreed with the Court of Appeal that the practical difficulties that relocation may entail in particular for the parent not exercising custody rights have no bearing as such on the issue of jurisdiction, which depends solely on the habitual residence of the children at the time the court is seised. Thus, once the habitual residence of a child has been transferred from one Member State to another, the courts of the latter State come to have jurisdiction, unless the transfer amounts to a wrongful removal or retention, as defined in Article 2(11) of the Regulation.

Based on the foregoing, the Supreme Court confirmed the ruling of the Court of Appeal. Specifically, it held that when A. filed his action (in February 2015), the children were already habitually resident in Germany. Actually, the names of the children had been entered in the register of the population of the town of Kevelaer in February 2014; they benefited from a health insurance there since April 2014; they attended a kindergarten there; they had developed strong relations with B.’s relatives living nearby. The Court also noted that the children, who were also German nationals, spoke German, whereas they barely spoke any Greek.

The Supreme Court held that no wrongful removal had taken place in the circumstances, stressing that, at the time when the transfer took place, B. had temporary exclusive custody rights. Against this backdrop, relocation was lawful, and A. should have rather pursued a re-arrangement of his contact rights with the children.

The statement made by B. in the course of the summary proceedings that she did not intend to relocate the children was not considered to be decisive. Given that B. had exclusive custody rights over children, she was entitled, pursuant to Article 2(9) of the Regulation, to determine the children’s place of residence.

With respect to Article 10, on jurisdiction in case of child abduction, the Supreme Court found that no wrongful retention had taken place after the revocation of the provisional measure, which granted A. exclusive custody rights. The Court noted that A. had not sought to have the new provisional measures recognised and enforced in Germany, and held that A.’s assertion that the latter measures are enforceable without any procedure being required is erroneous. The revocation of a provisional measure, the Court held, is not a judgment for the purposes of Article 11(8) of the Brussels II bis Regulation. Actually, at that time, the children had already an established place of residence in Germany.

The final line of defence for A. was Article 12(3) of the Brussels II bis Regulation. This provides that the courts of a Member State have jurisdiction over parental responsibility in proceedings unrelated to a matrimonial matter where: (a) the child has a substantial connection with that Member State, namely by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State, (b) their jurisdiction ‘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’.

In particular, A. argued that B. had implicitly accepted the jurisdiction of Greek courts by initially filing an action before the Court of First Instance of Rhodes.

The Supreme Court dismissed the argument. First, it stated that, by filing her initial petition, B. could not be deemed to have tacitly accepted the jurisdiction of Greek courts for any ensuing proceedings. Secondly, the Court noted that the initial action had been brought prior to the relocation of B. and the children in Germany, adding that B. had then asked for her action in Greece to be discontinued. Finally, the Court observed that no tacit acceptance could be deemed to exist, since B. expressly challenged the jurisdiction of Greek courts as a result of A.’s action.

5 comments on “The Greek Supreme Court on Jurisdiction in Matters of Parental Responsibility

  1. Matthias Lehmann

    If the facts are correctly established, it seems like the woman tricked the man. What about the doctrine of fraus legis? Does it have any application in conflicts of jurisdiction and Brussels II bis?

  2. I would take Vynils Italia as authority that a European doctrine of fraus legis is of general application. But I am not sure it would apply here if the court found that the habitual residence of the kids was Germany. The German woman lied, but did she manipulate any rule?

  3. Dear Matthias,

    The issue was examined by the Court of Appeal, whose findings are part of the Supreme Court ruling. I translate verbatim: It was not demonstrated that the appellee was lying with the aim to defraud the court during the hearing of summary proceedings, when she was declaring that she did not have the intention to relocate to Germany (with the children). It was only after the declaration of her husband on the day of her departure to Germany, that he wouldn’t give his consent for any visits of a similar kind in the future, and would demand precise application of the court’s order concerning his contact rights, and in spite of her fruitless efforts to convince him to retract, when she decided to stay in Germany. Hence, the condition of wrongful removal according to Article 10 Brussels II bis is not present in the case at hand.

    The Supreme Court confirmed the judgment of the appellate court.

  4. Dear Gilles,

    again, I translate from the original: The Court of Appeal touched upon the issue you refer to. It ruled as follows: the assertion of the father that the mother’s declaration contributed to the court’s decision to assign exclusive custody rights to her, and to dismiss his request to define Rhodes as the place of the children’s residence, is not crucial, given that the court ruled at the end in her favor, without issuing a ne exeat order, which would be contrary to Article 2.9 of the Brussels II bis Regulation and Article of the 1980 Hague Child Abduction Convention.

    • Ilaria Pretelli

      Dear Matthias, I would not characterize the declaration of the woman as a lie since you may always change your mind. As Anthimos explains, it is even difficult here to consider that her behavior is in breach of a promise, since exclusive custody was not granted conditionally to the maintenance of the residence in Greece. I do not know the peculiar circumstances, so I may only guess that the award of exclusive custody and the fact that the children barely spoke greek speak of their best interests.

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