Riigikohus; 2019-12-18; M.M. vs K.J.; 2-19-5903/67
Decision by national courts in the field of European Union law — ECLI:EE:RK:2019:2.19.5903.23382
Date: 2019-12-18
Subject matter: Judicial cooperation in civil matters
Origin: Estonia

82019EE1218(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards a question of admissibility of provisional protective measures in a custody dispute, which was resolved by the Riigikohus (hereinafter ‘the Supreme Court’).
Following the separation of the parents, a minor child was living with its father (hereinafter ‘the defendant) in Estonia. In January 2019, the mother (hereinafter ‘the plaintiff) applied before the Finnish court for sole custody over the child and the determination of the child’s place of residence to be with her in Finland.
In May 2019, the defendant applied before the Pärnu Maakohus (hereinafter ‘the Court of First Instance’) for provisional protective measures seeking the prohibition of taking the child to Finland and to determine Estonia as child’s place of residence. Despite that, the plaintiff took the child to Finland without the defendant’s consent. The Court of First Instance partially granted the defendant’s application, ordered the plaintiff to return the child to Estonia and ordered temporary sole custody in favour of the defendant.
The plaintiff appealed, arguing that the Estonian courts cannot decide on provisional measures regarding the child, which is subject of proceedings already instituted in another Member State of the European Union. The Court of First Instance and further also the Tallinna Ringkonnakohus (hereinafter ‘the Court of Appeal’) dismissed the appeal.
The plaintiff filed a cassation appeal to the Supreme Court seeking the annulment of the Court of Appeal order, alleging that the Estonian courts cannot provide provisional protective measures to the child, which is the subject of proceedings already initiated in Finland and already lives in Finland.
The Supreme Court cited Articles 390, 667 and 4771 of the TsMS (1) according to which the plaintiff’s appeal does even not fulfil the legal requirements to be successfully admissible.
Furthermore, the Supreme Court cited Article 20(1) of the new Brussels II Regulation (2), according to which ‘in urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter’. The Court of Justice of the European Union explains in its Case C-523/2007 (3) that ‘those measures are applicable to children who have their habitual residence in one Member State but stay temporarily or intermittently in another Member State and are in a situation likely seriously to endanger their welfare, including their health or their development, thereby justifying the immediate adoption of protective measures’.
The Supreme Court held the provisional measures granted by the lower courts only temporary and adopted in the best interests of the child and therefore in compliance with the new Brussels II Regulation.
The cassation appeal was dismissed.
(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.