Danish Supreme Court on Continued Jurisdiction for Parental Rights

Denmark does not apply the Brussels II ter Regulation in jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility. Jurisdiction in international parental-rights cases is assessed against domestic rules, unless the Hague Convention of 19 October 1996 on protection of children, to which Denmark is a party, provides otherwise. Under the domestic rules of Denmark, Danish courts may assert their jurisdiction on the ground that the child has habitual residence in Denmark at the time the proceedings are initiated. If the child moves during the proceedings, the courts of Denmark retain jurisdiction.

This jurisdictional rule was tested in a Supreme Court judgment of 4 September 2025 (case BS-2041/2025-HJR), where a man in Denmark, who had lived for a period with a Mexican woman and her child, claimed parental rights over the child before the Danish authorities. Although he prevailed on the international procedural issue of jurisdiction, he ultimately lost on the merits.

Background

A child was born in Ireland in 2016 to a Mexican mother and an Irish father. Shortly after the child’s birth, the mother and child moved to Mexico. In 2019, the mother married a man in Denmark and moved there together with her child. Two years after the marriage, Danish authorities granted the married couple joint custody over the child. One year thereafter, the couple separated. During a transition period of three months, the child lived with the mother’s ex-husband.

A custody dispute arose between the parties. Danish authorities decided that the child should temporarily reside with the Danish man while the parental responsibility case was pending. The temporary residence decision was not complied with and the ex-husband has not spent time with the child since the summer of 2023. In 2024, the mother moved again to Mexico with the daughter now residing with yet a new man.

Judgment

The case went to the Danish Supreme Court to determine whether Danish courts retained jurisdiction over the parental rights dispute. Before the Supreme Court, the mother argued that the case should be dismissed for lack of jurisdiction.

The Danish Supreme Court first held that Section 448 g(1)(1) of the Danish Procedural Code (retsplejeloven) provides that a case concerning parental responsibility may be heard in Denmark if the child has its habitual residence there. Referring to the preparatory works to the Procedural Code, the Supreme Court stated that Danish international jurisdiction is determined on the basis of the circumstances at the time when the proceedings are initiated. That jurisdiction remains unchanged even if the child moves from Denmark during the proceedings, unless the child moves to a Contracting State of the 1996 Hague Convention on the protection of children.

The Supreme Court found that it was undisputed that the child was habitually residing in Denmark when the parental-rights proceedings were initiated. As Mexico is not a party to the 1996 Hague Convention, there were no grounds for dismissing the case because of the child’s subsequent change of habitual residence.

On the merits, the Supreme Court, referring to the best interests of the child, concluded that the mother should have sole custody and parental responsibility for the child.

Comment

With private international law terminology, the Danish judgment is an expression of the principle of perpetuatio fori. Under article 7 of the Brussels II ter Regulation, the same jurisdictional idea of continuity applies in parental-rights cases. That the exception for a child’s change of habitual residence to another 1996 Hague Convention state also prevails was confirmed in the judgment CC, C-572/21, ECLI:EU:C:2022:562.