Nejvyšší soud České republiky; 2013-04-24; 30 Cdo 715/2013
Decision by national courts in the field of European Union law — ECLI:CZ:NS:2013:30.CDO.715.2013.1
Date: 2013-04-24
Subject matter: Judicial cooperation in civil matters
Origin: Czechia

82013CZ0424(51)_ENG_SUMJURE
JURE summary
JURE summary
This case concerned parental responsibility over a child.
The court of first instance found that the mother of the child lived in Italy since 2005 and is renting an apartment there. The child is attending a high school and the mother is working and has a residence permit in Italy. The father of the child is a citizen of Kingdom of Morocco, but is, also residing and working in Italy. The court applied the New Brussels II Regulation (1). Under Article 8(1) of this Regulation, the courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised. The court also applied Article 5(2) of the Brussels I Regulation (2) under which, courts have jurisdiction based on the place where the maintenance creditor is domiciled or habitually resident. The court applied this Article on the claim for alimony of the child. The court of first instance concluded that the child is residing in Italy. The courts of the Czech Republic therefore do not have the international jurisdiction to rule in the case. The court therefore dismissed the case.
The Court of Appeal confirmed the decision and added that the proceedings were initiated only by the mother. It also stated that the mother had not proven to the court that this was based on an agreement among the parties and that the father therefore agrees with the proceedings within jurisdiction of Czech courts. In fact from the mother’s statement the court concluded that the father will probably not be willing to attend court proceedings in the Czech Republic and the only reason for filling this statement is because the child is in the Central Registry of Citizens and does visit the Czech Republic occasionally, but not for longer than 14 days.
The mother filed a cassation to the Nejvyšší soud (hereinafter "the Supreme Court"). She stated that she and her son felt at home in the Czech Republic and they were residing in Italy only because of her work obligations. The Supreme Court applied the New Brussels II Regulation (3). In Article 8, it states that the courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised. The court stated that the lower courts correctly interpreted the term “habitual residence”. The child was living in Italy, and this is the most important place in his life, as he was attending school in Italy etc. The fact that the father is not a citizen of any Member State does not have any bearing, as Article 8 of the New Brussels II Regulation is based only on the habitual residence of a child. This fact would be taken into account only in the case of application of Article 14 of the New Brussels II Regulation; this Article would apply only if any other Article would not be applicable to establishment of a jurisdiction in matters of parental responsibility. The court of first instance failed in not stating its lack of international jurisdiction, but this failure does not have a substantial effect on the correctness of the decision. This argument was missing only in ratio decidendi but it was clear from the reasoning of the decision. It therefore could not alone be a reason for an annulment of the decision.
The Supreme Court dismissed the case.
(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) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.