On 13 July 2023, the Court of Justice of the European Union ruled in case C-87/22 that the court of a Member State where children were wrongfully removed by one of their parent can be requested to assume jurisdiction as a better place court than the court of their formal habitual residence, but that an application for return of the child suspends such decision.
The case was concerned with the custody of two children born in 2012 from a couple of Slovak nationals in Slovakia. In 2014, the family moved to Austria, where the children went to daycare and then school for a few years. In 2017, however, the children started going to school in Slovakia, commuting daily from Austria. As the result, they spoke only limited German.
In 2020, the couple separated, and the mother took the children to Slovakia with her without the father’s consent.
The father sought an order for the return of the children under the 1980 Convention in Slovakia, and brought proceedings for custody of the children in Austria under the Brussels II bis Regulation.
The mother challenged the jurisdiction of the Austrian court on the ground that their habitual residence had been in Slovakia, where they went to school and were socially integrated. She won in first instance, but lost in appeal.
Transfer of the Case to the Place of Wrongful removal?
After loosing on jurisdiction, the mother then applied to the Austrian court for a transfer of the case to Slovakia as a better placed court under Article 15 of the Regulation.
She argued that Slovakian courts were better placed because multiple proceedings were pending in Slovakia (initiated by both parents), and extensive evidence was already available in these proceedings. The Austrian court granted the application in first instance, adding that because the children did not speak German, hearing them in Austrian proceedings would result in additional costs as interpreters would have to be involved.
The appeal court, however, saw a problem with the fact that the children had been wrongfully removed to Slovakia, and wondered whether this was a bar to resorting to Article 15. It referred the matter to the CJEU.
The CJEU answers that the court of a Member State where a child was wrongfully removed could be transferred a case under Article 15 as a better placed court, but that an application for return of the child lodged with the competent authorities of the Member State of removal suspends any decision of transfer under Article 15.
This is a remarkable solution. As the judgement recalls, a major objective of the Regulation is to deter parents from removing wrongfully children to other Member States. This is why the return procedure exists, which should lead to a return of the child to the State where s/he was habitually resident. This is also why Article 10 of the Brussels II bis Regulation maintains the jurisdiction of the court of the old habitual residence of the child even if the removal results in a new habitual residence in another State (unless the parents have somehow consented to the removal).
Yet, the CJEU notes that, in practical terms, the court which might be considered as a better placed court under Article 15 will precisely be the court of the State where the child will have been wrongfully removed. Recall that, unlike doctrines such as forum non conveniens, the better placed court doctrine under the Brussels II Regulation is only available to transfer a case to a court which does not have jurisdiction under the Regulation.
The CJEU concludes, therefore, that Article 15 must be considered, in principle, to be available even for transfer to a court of the place of wrongful removal. The Court insists that given that one of the three prongs of the test to decide on a transfer is the best interests of the child, the decision should ultimately be “a balanced and reasonable assessment, in the best interests of the child, of all the interests involved, which must be based on objective considerations relating to the actual person of the child and his or her social environment”.
The CJEU then moves to the test for deciding a transfer under Article 15. It rules that the test remains the same in the context of a potential transfer to the court of the place of wrongful removal but that the existence of an application for return of the child suspends the decision for the six weeks time period for ruling on the application.
The case was quite remarkable, in so far as the children were not well integrated, if at all, in the place of their habitual residence.
The judgement, however, addresses the issue from a general standpoint, and it is hard to avoid concluding that it might give additional hopes to parents that their strategy to abduct children might succeed, including in more common cases of child abduction from a country where they are socially integrated to another where they are not. The filing of an application for return of the child will, however, be an even more important move for the parent fighting against the removal and likely the transfer.
The important point that should be underlined, and which is an important safeguard, is that the decision will ultimately be made by the court of the original habitual residence. It is this court which will have to make the assessment of whether a transfer might be beneficial. The court of the place of wrongful removal may also request a transfer, but it will still have to be allowed by the court of the original habitual residence (see Article 13 of the Brussels II ter Regulation).