Finnish Supreme Court on Residual Jurisdiction in Child Custody Matters

In a child custody case where the place of residence of both the child in question and the defendant mother was unknown, the Finnish Supreme Court held, in a judgment of 17 September 2024, that the Brussels II ter Regulation (2019/1111) applied to penalty fine matters. Since no court of a Member State had jurisdiction pursuant to Articles 7 to 11 of the Regulation, the Court turned to Article 14 on residual jurisdiction. Relying on domestic rules on international jurisdiction, the Court held that Finnish courts were entitled to hear the case.

Background

A child was born in Finland in 2019. In December that year, the mother took the child to Hungary. In the Spring of 2020, the father of the child, who still resided in Finland, was given sole custody and access to the child by a Finnish court. One and a half years later, new proceedings were initiated in Finland to have the sole custody and access to the child enforced. In that matter, the district court decided that the mother should hand over the child to the father. Also, the mother was ordered to pay a penalty fine of 1.000 Euros unless she would give information on the whereabouts of the child or cooperate to bring the child back to Finland.

The mother appealed, arguing that the Finnish court did not have international jurisdiction as the child was residing abroad. Simultaneously, she initiated new proceedings in Finland regarding the custody of the child.

In the appealed penalty fine matter, the Finnish Court of Appeal found that it had continuing jurisdiction under Article 10 of the Brussels II bis Regulation (Regulation No 2201/2003), as this was a child abduction case. However, in the substantive matter, the Court of Appeal held that the circumstances were changed as four years had passed since the child was abducted from Finland and the child now had a solid relationship to its mother. Therefore, the Court of Appeal held that there was no longer any reason to fine the mother for not having cooperated. The father appealed the decision before the Finnish Supreme Court.

The Supreme Court’s Judgment

Based on the transitional provision in Article 100(2) of the Brussels II ter Regulation (Regulation 2019/1111), the Supreme Court held that the latter Regulation, rather than its predecessor, applied in the circumstances, if the matter was covered by the material scope of the Regulation.

As stated in Article 1(1)(b), the Regulation is applicable in “civil matters of … the attribution, exercise, delegation, restriction or termination of parental responsibility”. Assessing whether the penalty fines in question, which were to be paid to the Finnish state, could be classified as a civil matter in the meaning of the Regulation, the Court recalled both the CJEU judgment in Bohez, and the German Supreme Court’s decision in case XII ZB 311/19 of 27 November  2019. Even if the German Supreme Court held in its judgment that the Brussels II bis Regulation is not applicable to enforcement proceedings that are parallel to a custody matter, the CJEU held in its Bohez that penalty fines could be subject to the Regulation. In line with the Bohez judgment and classifying the penalty fines as subject to the Brussels II ter Regulation, the Finnish Supreme Court held that there was no need to ask the CJEU for a preliminary ruling.

In the issue of jurisdiction under the Brussels II ter Regulation, the Supreme Court held that none of the ordinary jurisdiction rules in Articles 8–12 could apply. According to a Hungarian district court judgment from 2023, the child was no longer residing in Hungary, and it was not known to the authorities where the child was.

In contrast to the conclusion of the Court of Appeal, the Supreme Court held that the situation at hand was not a child abduction situation, as the child had been under sole custody. Consequently, the rule on continuing jurisdiction in such matters was of no avail (Article 9 of the Brussels II ter Regulation). As it was not known where the child was, the Supreme Court held that the only jurisdictional rule of the Brussels II ter Regulation that could apply was the residual jurisdiction rule in Article 14. According to this provision, a member state may determine its jurisdiction based on its own laws when no other member state has jurisdiction.

Finnish international jurisdiction is determined based on Chapter 10 Section 25 of the Finnish Procedural Code. This provision states that Finnish courts have international jurisdiction if a matter has connection to Finland as regards the criteria that would determine domestic jurisdiction, unless it is obvious that a Finnish judgment will have no legal value for the parties.

In domestic child custody matters, the court at the place where either the child or the defendant is domiciled has primary jurisdiction. If such a court cannot be established, the court at the place where the plaintiff is domiciled shall have jurisdiction. As the father was domiciled in Finland, the Supreme Court held that this criteria was met.

As mentioned above, internal jurisdiction is not enough for Finnish international jurisdiction. In addition, a Finnish judgment must have some value for the parties. Here, the Supreme Court held that a judgment would increase the chances for enforcement of the custody matter and that the fines could be paid if the defendant in the future were to have assets in Finland. Enhancing its conclusion that a Finnish judgment would be of value for the parties, the Supreme Court also held that it would not be appropriate to reject jurisdiction for forum non conveniens purposes. In this part of the judgment, which seems to be an obiter dictum, the Supreme Court held that it had not been proven that any other court was “obviously more competent” to hear the case. On these merits, Finnish courts had international jurisdiction.

Comment

The reluctancy to ask the CJEU for a preliminary ruling is – in my opinion – deplorable. Clarifications on both the material scope of the Brussels II ter Regulation and the applicability of national residual jurisdiction rules would benefit EU private international law beyond the Brussels II ter Regulation.