Tallinna Ringkonnakohus; 2020-06-05; VV vs AA; 2-20-5358/5
Decision by national courts in the field of European Union law — ECLI:EE:TLRK:2020:2.20.5358.12185
Date: 2020-06-05
Subject matter: Judicial cooperation in civil matters
Origin: Estonia

82020EE0605(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a question of international jurisdiction in an action concerning the custody of a minor child resolved by the Tallinna Ringkonnakohus (hereinafter ‘the Court of Appeal’).
In April 2020, the father of a child (hereinafter ‘the plaintiff’) applied before the Harju Maakohtu (hereinafter ‘the Court of First Instance’) and sought the restoration of joint custody, which was restricted by the decision of the same court in May 2019. The Court of First Instance declared a lack of its jurisdiction to hear the case pursuant to the TsMS (1) and Article 8(1) of the new Brussels II Regulation (2), according to which ‘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 child had been living with its mother abroad since December 2019; therefore, the Estonian courts cannot have jurisdiction in this case. The application was dismissed.
The plaintiff appealed to the Court of Appeal alleging that the Court of First Instance erroneously based its previous decision on the restriction of joint custody on evidence witnessed by the employee of local government, which was not legally entitled to provide such evidence. This alleged erroneous conduct happened during the proceedings, which led to the restriction of joint custody (May 2019), i.e., before the application in this case (April 2020), therefore, Article 8 of the new Brussels II Regulation shall not apply to the present case. The plaintiff also suggested that the Estonian courts shall have jurisdiction based on TsMS.
The Court of Appeal recalled that European legislation takes precedence over national legislation and confirmed that Article 8 of the new Brussels II Regulation must be respected. The Court of Appeal further cited Case C-523/07 of the Court of Justice of the European Union (3) according to which ‘the concept of habitual residence … must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment’. It was evident that at the time the court was seised the child was living with its mother abroad for several months, and that the intention of the mother to stay with the child abroad was clear as the child planned to attend school abroad too.
The Court of Appeal held that it was clear that the child is no longer habitually resident in Estonia and neither was it at the time the Court of First Instance was seised. The Estonian courts lack the jurisdiction, as correctly concluded the Court of First Instance. The fact that the employee of the local government who appeared at the proceedings was not a qualified child protection specialist does not influence this conclusion.
The Court of Appeal dismissed the appeal.
(1) Tsiviilkohtumenetluse seadustik (Code of Civil Procedure).
(2) 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.
(3) Judgment of the Court of Justice of 2 April 2009, A., C-523/07, ECLI:EU:C:2009:225, paragraph 44.