62023CJ0035_RES
Case C‑35/23 (
i
)
Father
v
Mother
(Request for a preliminary ruling from the Oberlandesgericht Frankfurt am Main)
Judgment of the Court (Fourth Chamber) of 20 June 2024
(Reference for a preliminary ruling – Judicial cooperation in civil matters – Parental responsibility – Regulation (EC) No 2201/2003 – Articles 10 and 11 – Jurisdiction in cases of the wrongful removal or retention of a child – Child’s habitual residence in a Member State before the wrongful removal – Return procedure between a third country and a Member State – Concept of request for return – The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction)
Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation No 2201/2003 – Jurisdiction in matters of parental responsibility – Jurisdiction in cases of child abduction – Jurisdiction of the courts of the Member State of habitual residence of the child prior to his or her abduction – Scope – Return proceedings unsuccessfully initiated under the 1980 Hague Convention between a third country and a Member State – Irrelevant
(Council Regulation No 2201/2003, Arts 2(11), 10(b)(i), 11(6) and (7), and 60)
(see paragraphs 50-62, operative part 1)
Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation No 2201/2003 – Jurisdiction in matters of parental responsibility – Jurisdiction in cases of child abduction – Jurisdiction of the courts of the Member State of habitual residence of the child prior to his or her abduction – Condition – Request for return – Concept – Application for the return of the child to a State other than the Member State in which the child was habitually resident before his or her abduction or an application for custody of that child brought before the courts of that first Member State – Not included
(Council Regulation No 2201/2003, recital 17 and Arts 8(1), 10(b)(i) and 11)
(see paragraphs 66, 68-71, 73-79, 81, operative part 2)
Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation No 2201/2003 – Application for return of a child – Order on non-return – Obligations to inform and notify and enforceability of the judgment which requires the return of a child – Scope – Return proceedings implemented under the 1980 Hague Convention between a third State and an EU Member State – Not included
(Council Regulation No 2201/2003, Art. 11(6) to (8))
(see paragraphs 83-85, operative part 3)
Résumé
Ruling on a reference for a preliminary ruling from the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany), the Court of Justice clarifies the scope of certain procedural rules applicable under Regulation No 2201/2003 (
1
) in the case of international abduction of a child in connection with a third country.
L was born in Switzerland in 2014 and has dual German and Polish nationality. Her father has resided in Switzerland since June 2013 for professional reasons, while her mother lived with L from January 2015 to April 2016 in Germany, where the father regularly visited them. In April 2016, the mother and L moved to Poland where, initially, the father visited them. From April 2017, the mother refused to allow the father his rights of access. She enrolled L in a kindergarten in Poland, without the father’s consent, and informed the father that she intended to remain in Poland with their daughter.
In July 2017, the father lodged an application for the return of the child to Switzerland through the Swiss Central Authority (
2
) under the 1980 Hague Convention. (
3
) A Polish court dismissed that application on the ground that the father had given his consent for an indefinite period to the mother’s move with L to Poland. The appeal brought by the father against that decision was dismissed.
Although he did not pursue a second application for return lodged in Germany, in July 2018 the father brought an application for custody before a German court seeking sole custody of the child, the right to determine the child’s residence and the return of the child to the father’s home in Switzerland. The court before which the application was brought dismissed it on the ground that it lacked international jurisdiction. The father brought an appeal against that decision before the referring court, claiming that the jurisdiction of the German courts derives from Articles 10 and 11 of Regulation No 2201/2003.
The referring court is uncertain as to the applicability of those provisions, since the father has unsuccessfully initiated proceedings for the return of the child under the 1980 Hague Convention through the Central Authority of Switzerland, a third country which is not bound by Regulation No 2201/2003. It therefore decided to make a reference to the Court for a preliminary ruling.
Findings of the Court
In the first place, the Court rules on the scope of the rule of special jurisdiction in matters of parental responsibility laid down in Article 10 of Regulation No 2201/2003. In accordance with that article, the courts of the Member State where the child was habitually resident before the wrongful removal or retention retain, in principle and under certain conditions, their international jurisdiction.
As regards the ‘wrongful removal or retention of the child’, on which Article 10 of Regulation No 2201/2003 is based, the Court holds, first, that the definition of that concept (
4
) does not depend on the holder of rights of custody initiating proceedings, which, as the case may be, would have to take place subsequently, for the return of the child under the 1980 Hague Convention.
Next, Article 10(b)(i) of Regulation No 2201/2003, according to which the courts of the child’s former habitual residence, in principle, no longer have jurisdiction in the absence of a request for return made within a period of one year, to the Member State on whose territory the child has been wrongfully removed or retained, does not specify that an application for return must have been made under the 1980 Hague Convention, nor does it exclude that it could have been made through a central authority of a third country. First, in accordance with Article 60 of Regulation No 2201/2003, the provisions of the 1980 Hague Convention do not take precedence over the provisions of that regulation in relations between Member States. Second, there is no obligation to rely on that convention in order to apply for the return of a child, since a return procedure may be based on other rules or provisions of international agreements, in particular bilateral provisions.
Finally, it cannot be accepted, given that Regulation No 2201/2003 is silent on the matter, that the application of Article 10 of that regulation is subject to the application of procedural rules, such as those set out in Article 11(6) and (7) of that regulation, (
5
) the main purpose of which is to govern the transmission and notification of information. (
6
)
In the second place, the Court notes, in the light, in particular, of the objectives of Regulation No 2201/2003, that neither an application for the return of the child to a State other than the Member State where that child was habitually resident immediately before the wrongful removal or retention, nor an application for custody of that child brought before the courts of that Member State, falls within the concept of ‘request for return’ within the meaning of Article 10(b)(i) of Regulation No 2201/2003.
Lastly, the Court states that it is clear from the wording of Article 11 of Regulation No 2201/2003 that that provision applies only between Member States, in conjunction with the 1980 Hague Convention. Accordingly, the obligations to inform and notify laid down in Article 11(6) and (7) of that regulation and the enforceability of the judgment referred to in Article 11(8) do not apply in the context of proceedings for the return of the child which have been commenced under that convention between a third country and a Member State where the child is present following a wrongful removal or retention.
(
i
)	The name of the present case is a fictitious name. It does not correspond to the real name of any of the parties to the proceedings.
(
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 (OJ 2003 L 338, p. 1).
(
2
)	Federal Office of Justice in Bern (Switzerland).
(
3
)	Convention on the Civil Aspects of International Child Abduction, concluded in The Hague on 25 October 1980 (‘the 1980 Hague Convention’).
(
4
)	See Article 2(11) of Regulation No 2201/2003.
(
5
)	Article 11 of that regulation supplements the implementation of return proceedings under the 1980 Hague Convention.
(
6
)	This concerns information in respect of a judgment of non-return, adopted pursuant to Article 13 of the 1980 Hague Convention, which must be communicated to the court with jurisdiction in the Member State where the child was habitually resident immediately before the wrongful removal or retention.