Gerechtshof Den Haag; 2022-02-16; -; 200.294.157/01
Decision by national courts in the field of European Union law — ECLI:NL:GHDH:2022:242
Date: 2022-02-16
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82022NL0216(51)_ENG_SUMJURE
JURE summary
JURE summary
Gerechtshof Den Haag (hereinafter ‘the Court of Appeal’) - 16 February 2022 - ECLI:NL:GHDHA:2022:242
Brussels II Regulation (1). A father and a mother, both of Polish nationality, were married in Poland in 2015. They have a minor child who was born in 2016.
The Court of Appeal considered that the minor lived with both parents in the Netherlands from birth until March 2019. Since then, the minor had been living with her mother in Poland. The father had not given permission for the minor to reside permanently in Poland. He brought proceedings for the return of the minor before the Polish court under the Hague Convention (2), claiming that the minor was being kept unlawfully in Poland by the mother. The Polish court granted the father’s application for the minor to be returned to the Netherlands.
In 2020, the mother applied to the Polish court for divorce, requesting, inter alia, that the minor should reside with her. In 2020, the father applied to the Dutch court to establish the minor’s habitual residence with him. The court granted the father’s application.
The mother appealed, requesting that the father’s application be stayed and/or referred to the Polish court under Articles 15 and 19 of the Brussels II Regulation.
The Polish child abduction court ordered the mother to ensure that the minor is returned to the Netherlands within fourteen days of the decision becoming final. The mother did not comply with this order. Despite the father’s enforcement measures and other efforts, the minor was still not returned to the Netherlands.
In the light of the irrevocable child abduction order issued by the Polish court, the Court of Appeal considers that the Dutch court has international jurisdiction to hear the present case concerning the minor’s habitual residence pursuant to Article 8(1) in conjunction with Article 10 of the Brussels II Regulation. The minor’s habitual residence at the time of the commencement of the present proceedings was in the Netherlands.
The Polish court upheld the father’s plea of lack of jurisdiction. In this decision, the Polish court considered that ‘the Dutch court had general jurisdiction to rule on this matter’.
5.8 According to the Court of Appeal, it is clear from the aforementioned court decisions of 5 May 2021 and 25 August 2021 that the Polish court, which was seised earlier than the Dutch court, irrevocably decided that it had no jurisdiction in the matter of parental responsibility and that this jurisdiction belonged to the Dutch court. This means that there is no obstacle under Article 19 of the Brussels II Regulation for the Dutch court to hear the substance of the present case.
5.9 The mother’s appeal against the decision of 25 August 2021 does not have the effect of depriving the Dutch court of its jurisdiction. The appeal concerns the mother’s request to provide security for a non-pecuniary claim in the divorce proceedings, where the jurisdiction of the Polish court arises at most from Article 20 of the Brussels II Regulation. According to the case law of the Court of Justice of the European Union, there cannot be any lis pendens within the meaning of Article 19(2) of the Brussels II Regulation, where the jurisdiction of one court is based on Article 20 of the Brussels II Regulation and the jurisdiction of the other court is based on Article 8 of the Brussels II Regulation (see Case C-296/10(3)).
(1) Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses.
(2) The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
(3) Judgment of the Court of Justice of 9 November 2010, Bianca Purrucker v Guillermo Vallés Pérez, C-296/10, ECLI:EU:C:2010:665.