Korkein oikeus; 2015-06-18; A, B and C; KKO:2015:44
Decision by national courts in the field of European Union law — ECLI:FI:KKO:2015:44
Date: 2015-06-18
Subject matter: Judicial cooperation in civil matters
Origin: Finland

82015FI0618(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regarded the dispute between mother A and father C concerning the custody and place of residence of their child B.
Child B was born in November 2012 in Estonia and since her birth had lived in Estonia. In August 2013 she moved with her mother and her siblings to Finland, where the mother found a part-time job and intended to stay permanently, child B was attending a nursery school and other siblings were attending school. The stay of child B in Finland was interrupted in September 2014, when the Finnish authorities decided under an urgent investment procedure that the housing conditions of child B in Finland were inadequate and dangerous for the child. Therefore, child B was placed with the father back in Estonia, where child B later lived for a short time also with the mother and grandmother and changed the local place of residence several times. Child B was under the joint custody of their parents, so both were entitled to decide on B’s place of residence.
In November 2014, the father applied for the termination of joint custody and for the transfer the maintenance solely to him. The Estonian court issued a provisional order, by which the custody of child B was modified such a way that the consent of both parents was needed to move the child abroad. The provisional order expired at the end of November 2014.
In December 2014, child B returned to Finland with her mother to a new apartment, which was held by the social authorities as good and safe.
The father applied to the Helsinki Court of Appeal seeking that child B to be immediately returned to her residence in Estonia. The Court of Appeal, after investigating the social relations of the child, ruled to immediately return the child back to Estonia.
The mother filled a cassation appeal to the Korkein oiekeus (hereinafter “the Supreme Court”) requesting that the decision of the Court of Appeal be annulled and that the application of the father be dismissed in its entirety.
The Supreme Court expressed its view that the matter concerns only the question of whether child B must be returned to Estonia in accordance with The Hague Convention (1), the New Brussels II Regulation (2) and Finnish law (3). A decision shall not be given about any issue of child custody nor the recognition of foreign judgments.
Based on existing case-law and Article 3 of The Hague Convention, the removal or retention of a child is to be considered wrongful where the child was removed from the place where it was habitually resident immediately before the removal or retention. Therefore, it is necessary to assess what was the place of residence of child B before moving to Finland. The Supreme Court considered all the materials in the case-file and assessed several movements of child B from Estonia to Finland and back. It was not proven that the stay of child B in Estonia had a more permanent purpose. Furthermore, as the child B was still very young, it cannot be said that child B has developed in Estonia a social environment strong enough to confirm that her place of residence had changed from Finland to Estonia. Accordingly, the Supreme Court considered the place of residence of B (relevant for December 2014) was Finland. Therefore, the requirement of Estonia to be the habitual residence immediately before the removal as a condition for the return of child B to Estonia had not been met and the application of the father was unfounded and dismissed.
The decision of the Court of Appeal was annulled.
(1) Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
(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) Laki lapsen huollosta ja tapaamisoikeudesta (Act on Child Custody and Right of Access).