Nejvyšší soud ČR; 2022-06-02; 24 Cdo 2715/2021
Decision by national courts in the field of European Union law — ECLI:CZ:NS:2022:24.CDO.2715.2021.1
Date: 2022-06-02
Subject matter: Judicial cooperation in civil matters
Origin: Czechia

82022CZ0602(51)_ENG_SUMJURE
JURE summary
JURE summary
This case concerns a question of international jurisdiction in a custody matter referred to the Nejvyšší soud (hereinafter ‘the Supreme Court’).
In action brought before the Obvodní soud pro Prahu 9 (hereinafter ‘the Court of First Instance’), the father of a minor (hereinafter ‘the plaintiff’) sought custody of the minor and the maintenance from the minor’s mother (hereinafter ‘the defendant’). By judgment of a French court, the minor was placed in the defendant's care. Since then, however, the child has moved to the Czech Republic, where she attends a bilingual school and lives with the plaintiff, with her older brother and another half-sibling of the same age who attends the same school.
The Court of First Instance declared that it had no international jurisdiction to hear the case and stayed the proceedings. It based its decision on Articles 8 and 9 of the new Brussels II Regulation (1). Since the child’s permanent residence at the time of the application was in France and the defendant did not consent to the change of custody, the court held that the French courts had jurisdiction.
The Městský soud v Praze (hereinafter ‘the Court of Appeal’) altered the first instance decision, declared that there was no lack of jurisdiction and ordered that the proceedings be continued. According to the Court of Appeal, the concept of habitual residence, as set out in Article 8(1) of the new Brussels II Regulation, must be interpreted in light of the best interests of the child. In the present case, the child is almost 17 years old and has expressed her intention to stay and study in the Czech Republic and to live with the plaintiff. The child also registered with the French embassy as a French national living permanently in the Czech Republic. Therefore, at the time the court was seised, her habitual residence was in the Czech Republic, which justifies the jurisdiction of the Czech courts.
The defendant appealed in cassation to the Supreme Court, alleging a misapplication of the new Brussels II Regulation. The defendant primarily argued that the courts should have applied Article 10 of the new Brussels II Regulation, which concerns the jurisdiction in cases of child abduction since the child remained with the plaintiff against the lawful judgment of the French court.
The Supreme Court interpreted the concept of wrongful removal/abduction in light of the Hague Convention (2) and the new Brussels II Regulation. It explained that the Hague Convention provides for the protection of children under the age of 16. The new Brussels II Regulation only supplements that Convention, so its provisions on abduction also apply only to children under 16. The Court of Appeal, therefore, correctly applied the general rule set out in Article 8(1) of the new Brussels II Regulation. The Supreme Court re-examined the conditions for determining the child’s habitual residence and confirmed that the child’s habitual residence at the time the action was brought was in the Czech Republic.
The Supreme Court dismissed the appeal in cassation as unfounded and upheld the decision of the Court of Appeal.
(1) 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.
(2) The Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.