62023CC0035
OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 8 February 2024 (
1
)
Case C‑35/23 [Greislzel] (
i
)
Father
v
Mother,
intervening parties:
Child L,
Child L’s guardian ad litem
(Request for a preliminary ruling from the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany))
(Reference for a preliminary ruling – Regulation (EC) No 2201/2003 – Parental responsibility – International jurisdiction in cases of child abduction – Habitual residence of the child in a Member State prior to the wrongful removal – Wrongful removal to a Member State – Procedure for return from a Member State to a third State (Switzerland) – the 1980 Hague Convention)
1.
By means of Regulation (EC) No 2201/2003, (
2
) the EU legislature has specified, among other matters, which courts have jurisdiction to hear disputes concerning child abduction within the European Union.
2.
In this context, the provisions of Regulation No 2201/2003 seek, on the one hand, to prevent child abductions (wrongful removal or wrongful retention) between Member States and, on the other, where such abductions occur, to obtain the child’s return without delay. (
3
)
3.
The Court of Justice has interpreted Article 10 of Regulation No 2201/2003, headed ‘Jurisdiction in cases of child abduction’, in response to various requests for a preliminary ruling. (
4
) In none of them, however, was the application of that article at issue when, as occurs here, the return of the child to a third State (Switzerland) is sought, where, moreover, the child was not habitually resident prior to the wrongful removal.
4.
The Court of Justice has also ruled on the relationship between Regulation No 2201/2003 and the Hague Convention of 25 October 1980. (
5
) Until now, unless I am mistaken, it has not had to specify what effects an application for the return of a child, based on that convention, could have on the determination of the jurisdiction to decide an application for custody made pursuant to Article 10 of Regulation No 2201/2003.
I. Legal context
A.
The 1980 Hague Convention
5.
The preamble states the aim of this convention as being to protect children, internationally, from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence.
6.
The first and second paragraphs of Article 12 provide:
‘Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.’
B.
European Union law. Regulation No 2201/2003
7.
Recitals 12 and 17 state as follows:
‘(12)
The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.
…
(17)
In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end [the 1980 Hague Convention] would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. …’
8.
According to Article 8 (‘General jurisdiction’):
‘1.   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.
2.   Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12.’
9.
According to Article 10 (‘Jurisdiction in cases of child abduction’):
‘In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:
(a)
each person, institution or other body having rights of custody has acquiesced in the removal or retention;
or
(b)
the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:
(i)
within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;
(ii)
a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);
(iii)
a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);
(iv)
a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.’
10.
Article 11 (‘Return of the child’) states:
‘1.   Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of [the 1980 Hague Convention], in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.
…’
II. Facts, dispute and questions referred for a preliminary ruling
11.
In March 2013, L’s parents (the father has German nationality and the mother has Polish nationality) married in Germany, where they initially lived together.
12.
In June 2013, the father relocated to Switzerland for professional reasons. L was born on 12 November 2014 in Switzerland and has both German and Polish nationality.
13.
From January 2015 until the beginning of April 2016, L lived with her mother in Germany. The father regularly visited the mother and their child-in-common in Germany and they also spent holidays together.
14.
On 9 April 2016, the mother moved to Poland with L. Initially, the father visited L in Poland.
15.
From 17 April 2017, the mother refused to allow the father to have contact with L and enrolled her, without the father’s consent, at a kindergarten in Poland.
16.
At the end of May 2017, the mother informed the father that she intended to remain in Poland with L.
17.
On 7 July 2017, through the Swiss central authority, the Bundesamt für Justiz in Bern (Federal Office of Justice, Bern, Switzerland), the father applied to the Polish courts for the return of L to Switzerland.
18.
On 8 December 2017, the Sąd Rejonowy Krakowa-Nowej Huty (Kraków-Nowa Huta District Court, Krakow, Poland) refused the request for return made by the father, arguing that the father had given his consent to L moving to Poland with her mother for an indefinite period of time and that, moreover, should she be returned, there was a grave risk to L’s well-being, within the meaning of point (b) of Article 13 of the 1980 Hague Convention.
19.
The appeal brought by the father against that decision was dismissed by the Sąd Okręgowy Krakowa (Regional Court, Krakow, Poland) on 17 April 2018.
20.
By an application of 27 September 2017, the mother initiated divorce proceedings in Poland. On 5 June 2018, the Sąd Okręgowy Krakowa (Regional Court, Krakow) provisionally granted the mother custody of the child-in-common and determined the maintenance to be paid by the father.
21.
On 29 June 2018, the father lodged an application for the return of L with the Bundesamt für Justiz in Bonn (Federal Office of Justice, Bonn, Germany) under the 1980 Hague Convention. He later abandoned that application.
22.
On 13 July 2018, the father initiated before the Amtsgericht Frankfurt am Main (Local Court, Frankfurt am Main, Germany) the proceedings from which the subsequent request for a preliminary ruling would arise. In his application to that court, lodged on 13 July 2018, he asked the court:
–
Principally (point I of the form of order sought), to grant him sole custody of L and, secondarily, the right to determine her place of residence.
–
He also asked the court (point II of the form of order sought) to order the mother to return L to Switzerland as of the effective date of the decision.
23.
In those proceedings:
–
The father maintained that, in 2015, the two parents had agreed that both of them would live with L in Switzerland in the future. In April 2016, the mother decided to move, provisionally, to Poland. He gave his consent, but expressly limited the length of the stay in Poland. (
6
)
–
The mother rejected those assertions. She maintained that the father had consented to L moving to Poland and that there had been no agreement between the two of them that the move would be for a limited period of time. Nor had they agreed on a (future) move to Switzerland.
24.
On 3 June 2019, the Amtsgericht Frankfurt am Main (Local Court, Frankfurt am Main) refused the father’s application on the basis that it lacked international jurisdiction. According to that court, the father had not proved the existence of a specific agreement regarding the temporary nature of L’s residency in Poland. The information which he provided at the hearing of 9 May 2019 contradicted the statements made in the submission of 3 August 2018, the latter suggesting that, in May 2017, the parents were still negotiating about the duration of the stay in Poland.
25.
On 8 July 2019, the father appealed against the judgment at first instance to the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main). In the context of that appeal, he reiterates the arguments set out at first instance and argues that:
–
The jurisdiction of the court of first instance is clear from Article 11(6), read together with Article 11(7), as well as from Article 10, of Regulation No 2201/2003. In its decision of 8 December 2017, the Sąd Rejonowy Krakowa-Nowej Huty (Krakow-Nowa Huta District Court, Krakow) observed that L’s place of residence prior to moving to Poland was not in Switzerland, but rather in Germany.
–
In that case, the principles which inform the 1980 Hague Convention procedure apply. According to those principles, a person opposing the return of the child must prove that the person having the (joint) care of the child had consented to or subsequently acquiesced in the removal or retention of the child. The mother has not provided proof of paternal consent for an indefinite period of time.
26.
The father has also requested that a preliminary ruling be requested, to which the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main) has agreed and it refers to the Court of Justice the following questions:
‘To what extent is the regulatory mechanism provided for in [Articles 10 and 11] of [Regulation No 2201/2003] limited to proceedings conducted in the context of relations between EU Member States?
More specifically:
(1)
Does Article 10 of [Regulation No 2201/2003] apply, with the effect that the jurisdiction of the courts in the former State of residence is retained, if the child had his or her habitual residence in an EU Member State (Germany) before his or her removal and the return proceedings under the [the 1980 Hague Convention] … were conducted between an EU Member State (Poland) and a third State (Switzerland) and, in those proceedings, the return of the child was refused?
If question 1 is answered in the affirmative:
(2)
In the context of Article 10(b)(i) of [Regulation No 2201/2003], what requirements are to be imposed for the purposes of establishing continuing jurisdiction?
(3)
Does Article 11(6) to (8) of [Regulation No 2201/2003] also apply in the case of return proceedings implemented under the [1980 Hague Convention] in the context of relations between a third State and an EU Member State, as a State of refuge, in so far as the child had his or her habitual residence in another EU Member State before the removal?’
III. Procedure before the Court of Justice
27.
The request for a preliminary ruling was received at the Court on 25 January 2023.
28.
The German and Polish Governments submitted written observations, as did the European Commission. Those same parties, as well as the father of the child, took part in the hearing held on 7 December 2023.
IV. Analysis
29.
As instructed by the Court, I shall focus on the second question referred, relating to the requirements imposed by Article 10(b)(i) of Regulation No 2201/2003, in order to discern which court has jurisdiction in circumstances such as those arising in this case. (
7
)
30.
My exposition will be structured as follows:
–
In the first section, I shall deal, summarily, with the rules on the conferral of jurisdiction in cases of child abduction (Articles 8 and 10 of Regulation No 2201/2003).
–
In the second section, I shall analyse the profiles of applications for the return of an abducted child, in so far as they constitute one of the requirements for retaining jurisdiction, according to Article 10(b)(i) of Regulation No 2201/2003.
–
I shall complete my reflections by setting out what impact the considerations set out in the second section could have on the original dispute.
–
I shall conclude by addressing other specific problems raised by the referring court.
A.
Rules conferring international jurisdiction in cases of child abduction
31.
The rule on ‘general jurisdiction’ laid down in Article 8(1) of Regulation No 2201/2003 is 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’.
32.
That conferral of jurisdiction reflects the principle of (geographical) proximity, which is central to the system. (
8
)
33.
As an exception to that rule, there are circumstances in which the child loses his or her habitual residence in one Member State and acquires it in another, but international jurisdiction is not conferred on the courts of the latter. That occurs, specifically, in the case of children wrongfully removed (or retained).
34.
In accordance with Article 10 of Regulation No 2201/2003, in cases of child abduction, the courts of the Member State where the child was habitually resident before his or her wrongful removal (or retention), in principle, retain their jurisdiction. By that means:
–
The parent who has abducted the child does not benefit from a wrongful act. If that parent were able to make his or her application relating to custody of the child to the courts of the Member State in which the child is newly resident, he or she would enjoy an unfair advantage. (
9
)
–
The practice of the international abduction of children is disincentivised, which is a fundamental objective of Regulation No 2201/2003. (
10
)
35.
However, the international jurisdiction of the Member State in which the child had his or her habitual residence immediately prior to the wrongful removal is not retained without limits.
36.
Indeed, it is possible that that jurisdiction would be transferred to the courts of the new habitual residence of the child, from a particular moment in time onwards, if certain conditions stated in Article 10 of Regulation No 2201/2003 are met.
37.
That would occur, in particular, if the holder of rights of custody:
–
either acquiesces in the removal of the child (Article 10(a) of Regulation No 2201/2003);
–
or does not take certain actions (
11
) during a certain period of time and, at the end of that period of time, the child is settled in his or her new environment (Article 10(b) of Regulation No 2201/2003). (
12
) The inaction of the person who has custody of the wrongfully removed child may, then, affect the transfer of jurisdiction to one Member State or another. (
13
)
B.
Request for return and Article 10(b)(i) of Regulation No 2201/2003
38.
As I have just mentioned, the application for the return of the child is one of the requirements determining the applicability of Article 10(b)(i) of Regulation No 2201/2003.
39.
According to that provision and provided that the other conditions set out therein are met, not applying (to the authorities of the Member State to which the child has been wrongfully removed) for the return of the child, once his or her whereabouts are known (or should be known), is a factor capable of causing a change in the international jurisdiction.
40.
Regulation No 2201/2003 does not, however, define what is meant by ‘return’ or by ‘request for return’. Nor does either the 1980 Hague Convention, which Regulation No 2201/2003 complements, (
14
) or the 1996 Hague Convention. (
15
)
1. Request for the return of the child to a Member State other than that of his or her habitual residence prior to the abduction
41.
In view of the circumstances of this case, it is necessary to clarify whether Article 10(b)(i) of Regulation No 2201/2003 allows for a request for return in the strict sense, (
16
) but whereby the return of the child to a State different from that of his or her habitual residence prior to the removal is sought. (
17
)
42.
At first glance, the literal sense (
18
) of Article 10(b)(i) of Regulation No 2201/2003 would not seem to require the return of the child to precisely the Member State in which he or she was habitually resident immediately prior to the wrongful removal to be sought.
43.
As has already been submitted, Article 10 of Regulation No 2201/2003 endeavours to deter wrongful removals from one Member State to another. To that end, it includes rules which, under certain conditions, reject the conferral of jurisdiction on the courts of the Member State in which the child has, after his or her wrongful removal, acquired a new habitual residence.
44.
To that same end, the Court has opted for a restrictive interpretation of the conditions which bring about the transfer of jurisdiction. (
19
) Following that same logic, it could be said that the more flexible the interpretation of the requirements imposed for the Member State in which the child had his or her former habitual residence to retain jurisdiction, the better the stated aim could be defended. (
20
)
45.
That would imply that Article 10(b)(i) of Regulation No 2201/2003 could allow for an application for the return of the child that seeks his or her ‘return’ to a State (a Member State or even, perhaps, a third State) other than that of his or her former habitual residence.
46.
In my view, however, that open interpretation of Article 10(b)(i) of Regulation No 2201/2003 proposed by the Commission and L’s father presents serious difficulties.
47.
The jurisdiction rule inserted in Article 10 of Regulation No 2201/2003 is special in relation to the general rule stated in Article 8(1). As such, it ‘must be interpreted restrictively and cannot, therefore, give rise to an interpretation that goes beyond the situations expressly envisaged by the regulation …’. (
21
)
48.
In that regard, I observe that Article 10 of Regulation No 2201/2003 not only establishes an exceptional jurisdiction, it also sets out the circumstances in which that jurisdiction is retained or, conversely, reverts to the courts which normally have jurisdiction, which are those of the Member State in which the child has his or her current habitual residence.
49.
Even if the new habitual residence has its origin in a wrongful removal, (
22
) on account of their geographical proximity to the child’s environment, the courts of the Member State where the child is already settled to a certain degree are in a better position to determine the measures which are favourable to his or her interest. (
23
)
50.
In the words of the Court of Justice, with Article 10 of Regulation No 2201/2003, the legislature ‘wanted to establish … with respect to the conferral of jurisdiction … a balance between, on the one hand, the need to prevent the perpetrator of the abduction from reaping the benefit of his or her wrongful act … and, on the other, the value of allowing the court that is closest to the child to hear actions relating to parental responsibility’. (
24
)
51.
The key to a correct understanding of Article 10 of Regulation No 2201/2003 and, therefore, of the requirements it sets out, lies in achieving that balance.
52.
In my view, a request for the return of the child to the Member State where he or she resided immediately prior to the wrongful removal (in this case, Germany) better preserves that balance than a request for return which, if it succeeded, would take that child (
25
) to another State (Switzerland), different from that in which he or she resided immediately prior to the wrongful removal and also different from the State (Poland) in which he or she currently resides.
53.
Article 10(b) of Regulation No 2201/2003 details the actions which must be taken by anyone intending to avoid the change in international jurisdiction:
–
In response to the act of abduction, he or she must, within a specified period of time, lodge a request for the return of the child with the authorities of the State in which the child is located. (
26
)
–
In response to a decision not to return the child, made under the 1980 Hague Convention, he or she must promptly submit an application to the authorities of the State in which the child was previously resident, relating to custody of the child (
27
) (if there is not one pending already).
54.
In my view, by making the retention of jurisdiction conditional on those specific legal reactions, Regulation No 2201/2003 seeks to focus the opposition of the holder of rights of custody on the abduction of the child, but also something more.
55.
In the interests of the child, it promotes the establishment of mechanisms designed to bring an end, as soon as possible, to an interim situation, (
28
) in a manner consistent with the logic of the European regulations on international child abduction. (
29
) Restoring the status quo prior to the wrongful removal is the first, essential, step towards normalising the situation of an abducted child. (
30
) To achieve that, I consider it essential to apply for his or her return to precisely the Member State from which he or she was removed.
56.
Urging the return of the child to a Member State other than that in which he or she was habitually resident prior to the wrongful removal is a way of opposing that removal, but it does not serve the purpose which I have just described. However, it restricts the number of cases in which the courts of the Member State of the child’s current habitual residence – that is, those closest to the child – have jurisdiction.
57.
In short, I am against an application seeking the return of the child to a Member State other than that in which he or she was habitually resident at the time of the wrongful removal being regarded as a ‘request for return’ within the meaning of Article 10(b)(i) of Regulation (EC) No 2201/2003.
2. Request for return and application for custody
58.
According to Article 10(b)(i) of Regulation No 2201/2003:
–
Lodging a request for return is the express condition imposed on the person seeking custody in order to maintain the international jurisdiction of the child’s previous State of habitual residence, once that person knows (or should know) of the child’s whereabouts;
–
There is no room for applications to the authorities of the Member State to which the child has been removed, other than those for the return of the child.
59.
As I have set out, in order to preserve the jurisdiction of the Member State in which the child was habitually resident prior to the wrongful removal, Article 10(b)(i) of Regulation No 2201/2003 requires a process seeking the return of the child to that country to be commenced.
60.
From that perspective, an application for the return of the child and an application for custody which, when decided, would imply his or her return, could appear to be equivalent.
61.
However, in matters of child abduction, time is a determining factor. (
31
) Consequently, for the purposes of Article 10(b)(i) of Regulation No 2201/2003, an application the sole aim of which is the swift return of the child – and which, for that reason, is dealt with urgently – and another which, after examining the substance of the dispute in detail in the relevant proceedings, will decide on custody of the child, are not interchangeable. (
32
)
62.
Nor does a systematic interpretation support substituting the request for return which appears in Article 10(b)(i) of Regulation No 2201/2003 with an application for custody. Point (b)(i) to (iii) (
33
) of that article forms a sequence in which the application for custody is conceived of as coming after the return of the child. Together, (i) to (iii) of point (b) describe a chain of steps which must be taken, once the whereabouts of the child are known, in a ‘typical’ situation in which an application for custody has not yet been made.
63.
From that moment on, preserving the jurisdiction of the Member State where the child was habitually resident prior to his or her abduction requires: (i) attempting to obtain his or her return through the authorities of the (new) Member State to which he or she has been removed (point (b)(i)); (ii) persisting in that attempt (point (b)(ii)) and, if that request for return is refused, (
34
) (iii) promptly submitting an application for custody in the Member State from which the child was removed (point (b)(iii)).
64.
In short, I am of the view that, in order for the Member State where the child was resident and from which he or she was wrongfully removed to retain jurisdiction, a person hoping to be granted custody of the child (and who knows, or should know, where he or she is) must apply for his or her immediate return. From the moment at which he or she learns the whereabouts of the child, (
35
) that person cannot choose between bringing an action relating to the substance and seeking the immediate return of the child. (
36
) If he or she does not submit a request for return, or does so outside the specified time limit, the jurisdiction to decide regarding custody passes to the authorities of the Member State where the child habitually resides. (
37
)
C.
Application of those criteria to the original dispute
65.
The referring court formulates the second question referred on the basis of a double assumption:
–
First, it does not seem to give any relevance, for the purposes of Article 10(b)(i) of Regulation No 2201/2003, to the fact that a request for return was made to the Polish courts, through the channels of the 1980 Hague Convention.
–
Second, it regards the application for custody of L, made to the German courts, as a request for return, within the meaning of that same article.
66.
In order to give a useful answer to the question referred, it is necessary to assess whether those premisses are correct.
1. Application for the return of L to Switzerland
67.
From the order for reference, it may be deduced that, for the court a quo, the application for the return (
38
) of L to Switzerland, submitted by her father on 7 July 2017 to the Polish courts, does not count for the purposes of jurisdiction remaining in Germany, pursuant to Article 10(b)(i) of Regulation No 2201/2003.
68.
In its observations, the Commission has set out a different point of view: the request for return to Switzerland would indeed be relevant; L’s father ‘has not left the situation as it is’, but rather he has made a real effort to obtain the return of the child. (
39
)
69.
For the reasons set out in point 41 et seq. of this Opinion, I consider the position of the referring court to be, in its result, substantially correct. In the circumstances of Article 10(b) of Regulation No 2201/2003, maintaining the jurisdiction of the courts of Germany, as the Member State of the child’s habitual residence prior to the removal, would have required a request for return to that country.
2. Application for custody to the German courts
70.
In order to establish whether the courts of the Member State (Germany) where L habitually resided before her wrongful removal (still) have jurisdiction, the referring court considers whether the application for custody which the father submitted to them was made within the period of one year provided for in Article 10(b)(i) of Regulation No 2201/2003.
71.
I deduce, then, that the referring court accepts the application relating to custody of L as if it were ‘for return’, within the meaning of Article 10 of Regulation No 2201/2003. In that way, the obstacle of the absence of a request for return, in the strict sense, which, once the whereabouts of the child in the State to which he or she has been removed are known, is required by that article in order to preserve the jurisdiction of the Member State of origin, may be overcome.
72.
For the reasons I have set out in point 58 et seq. of this Opinion, I do not believe that premiss to be correct. Nor do I think it is justified by an affirmative response to the first question referred, as the referring court implicitly suggests.
73.
It is one thing that the application of Article 10 of Regulation No 2201/2003 (to confer international jurisdiction on certain courts in cases of the wrongful removal of a child) is not conditional on that of Article 11 of the same regulation, (
40
) and another that recourse to that exceptional jurisdiction should be possible at any time, irrespective of any attempt to obtain the return of the child.
D.
Other requirements of Article 10(b)(i) of Regulation No 2201/2003
74.
The referring court raises two questions which it would be necessary to clarify, if, contrary to what I maintain, it were accepted that the application for custody attempted in Germany is equivalent to a request for return for the purposes of Article 10(b)(i) of Regulation No 2201/2003.
75.
The first question concerns the time limit imposed on the holder of rights of custody for seeking the immediate return of the child, once that person knows (or should know) of the child’s whereabouts.
76.
The uncertainty seems to arise from the discrepancy between the account of the facts given by L’s father when he sought her return through the Swiss authorities and that which he gave in Germany, in order to argue that the courts of that country continue to have jurisdiction with regard to custody:
–
in the return proceedings, the father gave the date of the wrongful removal of L as 24 May 2017, the date on which she began to attend a kindergarten in Poland;
–
in the custody proceedings, the father referred to an agreement with L’s mother, whereby the child would go to nursery school in Switzerland from November 2017.
77.
Depending on which date is accepted, the period of one year under Article 10(b)(i) of Regulation No 2201/2003 would or would not have expired when L’s father made his application for custody in Germany (13 July 2018). The referring court asks whether the statements made by the father in the custody proceedings, which are different from those made in the context of the return proceedings under the 1980 Hague Convention, are admissible.
78.
The second question concerns the proof of the facts (in particular, a possible agreement between the parents regarding the child’s stay in Poland beyond a certain date) on which the international jurisdiction depends. For the father, the burden of proof in that regard falls on L’s mother, by virtue of Article 13 of the 1980 Hague Convention, (
41
) which would also apply in the context of Article 10 of Regulation No 2201/2003.
79.
In my view, those doubts on the part of the referring court may be resolved taking account of the fact that, by reason of their nature and their purpose, return and custody proceedings relating to a wrongfully removed child, even though they are related, are independent.
80.
In Regulation No 2201/2003, the relationship between the two types of proceedings is dealt with, in particular, in two provisions: Article 11, on ‘return of the child’, and Article 42, which falls within the section on ‘enforceability of certain judgments concerning rights of access and of certain judgments which require the return of the child’. Neither of those two provisions connects the proceedings in the way suggested by the referring court.
81.
With regard to Article 11 of Regulation No 2201/2003, its content refers to a hypothetical application (made by a person holding rights of custody) to the competent authorities of a Member State urging those authorities to issue a decision on the basis of the 1980 Hague Convention, ‘in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention’.
82.
Article 11(6) of Regulation No 2201/2003, then, is confined to providing for a mechanism for communication between courts, such that a court which has issued an order for non-return pursuant to Article 13 of the 1980 Hague Convention will transmit a copy of that order to the competent court (or the central authority) of the Member State where the child was habitually resident immediately before the wrongful removal or retention.
83.
For its part, under Article 42(2)(c) of Regulation No 2201/2003, when the return of a child is the result of a judgment ordering his or her return pursuant to Article 11(8), certain steps must be taken and certain conditions met for that judgment to benefit from the enforcement rules provided for in Section 4 of Chapter III of Regulation No 2201/2003.
84.
Nothing in Regulation No 2201/2003 suggests that, for the purposes of initiating proceedings relating to parental responsibility, the holder of rights of custody, or the court to which that person applies, is inevitably bound by the account of the facts given by the former in the context of a prior application for the return of the child. (
42
)
85.
Nor does Regulation No 2201/2003 require the rules relating to proof of the factors which determine jurisdiction, laid down in Article 10 of that regulation, to be the same as those applied in the 1980 Hague Convention in order to decide on the return of the child. (
43
)
86.
The Court of Justice has held that a decision issued as a result of proceedings under the 1980 Hague Convention should not be taken to be a determination on the merits of any custody matter and nor, therefore, should it have any effect on the judgment which the court having jurisdiction in that matter may give. (
44
)
87.
The Court has also observed that, on account of the expeditious nature of the return procedure, a request for return ‘must … be based on information that is quickly and readily verifiable’ and has referred, in particular, to the date from which the removal is wrongful as one of the elements which are difficult, if not impossible, to prove. (
45
)
88.
Based on those premisses, I consider, in short, that:
–
Regulation No 2201/2003 does not offer the national court (which has to decide whether or not it has jurisdiction to hear an application for custody of a child) rules to clarify up to what point that jurisdiction is conditional on prior statements made in the course of other proceedings in which the return of the child has been sought. (
46
)
–
In the absence of rules of EU law regarding the burden of proof in respect of the circumstances which, according to Article 10 of Regulation No 2201/2003, form the basis of the international jurisdiction of the courts of a particular Member State, it is the legal system of each Member State which defines those rules, in compliance with the principles of equivalence and effectiveness and respecting the effectiveness of Regulation No 2201/2003.
V. Conclusion
89.
I propose that the Court of Justice should answer the second question referred for a preliminary ruling by the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany) as follows:
Article 10(b)(i) of 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,
must be interpreted as meaning that an application, made under the Convention on the Civil Aspects of International Child Abduction (‘the 1980 Hague Convention’), and seeking the return of the child to a State which is not that of his or her habitual residence prior to the removal, cannot be regarded as a ‘request for return’ for the purposes of Article 10(b)(i) of Regulation No 2201/2003.
Once the whereabouts of the child are known (or should be known), the international jurisdiction of the courts of the Member State in which that child had his or her habitual residence immediately prior to the wrongful removal is lost, if, the rest of the conditions set out in Article 10(b)(i) of Regulation No 2201/2003 being satisfied, the holder of custody rights brings a custody action before those courts, but does not make a request for return to the authorities of the Member State to which the child has been removed.
Statements of fact given in proceedings for the return of the child brought under the 1980 Hague Convention do not necessarily bind a person who has to judge whether the court in a Member State has jurisdiction in subsequent custody proceedings.
The rule regarding the burden of proof laid down in Article 13 of the 1980 Hague Convention does not apply to the facts adduced as a basis for international jurisdiction in the case of an application for custody.
(
1
)	Original language: Spanish.
(
i
)	The name is a fictitious name. It does not correspond to the real name of any of the parties to the proceedings.
(
2
)	Council Regulation 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). It, in turn, was repealed by Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (OJ 2019 L 178, p. 1), which is inapplicable to this case ratione temporis.
(
3
)	Judgment of 1 July 2010, Povse (C‑211/10 PPU, EU:C:2010:400, ‘the judgment in Povse’, paragraph 43).
(
4
)	Judgments of 13 July 2023, TT (Wrongful removal of a child) (C‑87/22, EU:C:2023:571; ‘the judgment in TT’); of 24 March 2021, MCP (C‑603/20 PPU, EU:C:2021:231; ‘the judgment in MCP’); and of 17 October 2018, UD (C‑393/18 PPU, EU:C:2018:835); and order of 10 April 2018, CV (C‑85/18 PPU, EU:C:2018:220).
(
5
)	Convention on the Civil Aspects of International Child Abduction (‘the 1980 Hague Convention’). See, recently, judgment of 16 February 2023, Rzecznik Praw Dziecka and Others (Suspension of the return decision) (C‑638/22 PPU, EU:C:2023:103). Of greater interest in relation to this case, judgments of 22 December 2010, Mercredi (C‑497/10 PPU, EU:C:2010:829); of 8 June 2017, OL (C‑111/17 PPU, EU:C:2017:436; ‘the judgment in OL’); and of 19 September 2018, C.E. and N.E. (C‑325/18 PPU and C‑375/18 PPU, EU:C:2018:739).
(
6
)	At a hearing held on 9 May 2019, which the mother did not attend despite having been given proper notice, the father stated that the parents had, in a telephone conversation held on 29 January 2016, agreed that L would remain in Poland for a maximum period of two to three years and that, in any event, she would afterwards attend kindergarten in Switzerland.
(
7
)	I shall start from the premiss that L’s father had rights of custody over her and that the removal, which he initially consented to, later became wrongful. If the removal is not wrongful, Article 10 of Regulation No 2201/2003 simply does not apply. It is not clear that that condition is met in the present case and it is the responsibility of the referring court to establish that.
(
8
)	Recital 12 of Regulation No 2201/2003. See, inter alia, the judgment in TT, paragraph 33, and judgment of 27 April 2023, CM (Right of access to a child who has moved) (C‑372/22, EU:C:2023:364, paragraphs 21 and 22). Regarding the relevance of the physical presence of the child in establishing his or her habitual residence and its intrinsic relationship with the criterion of geographical proximity, see judgment of 17 October 2018, UD (C‑393/18 PPU, EU:C:2018:835).
(
9
)	He or she would obtain, at least, a procedural and, possibly, a substantive advantage: the abductor, with his or her wrongful act, would have succeeded in creating the link justifying the international jurisdiction of a jurisdiction which is potentially more favourable to his or her interests (as regards the substance).
(
10
)	Most notably, the judgment in TT, paragraph 36.
(
11
)	Actions relating to the return of the child or to parental responsibility: points (b)(i) to (iii). Point (b)(iv) provides for the transfer of jurisdiction as a consequence of a decision regarding custody, where the general conditions provided for in point (b) are also met.
(
12
)	The child will have resided in the destination Member State for at least one year after the person who has custody knew or should have known his or her whereabouts. Article 10(b) of Regulation No 2201/2003 presents the fact of the child being settled in the new Member State as a separate condition from the consolidation of his or her habitual residence in that Member State.
(
13
)	The judgment in MCP, paragraph 54.
(
14
)	Recital 17 of Regulation No 2201/2003 and Opinion 1/13 (Accession of third States to the Hague Convention) of 14 October 2014 (EU:C:2014:2303, paragraph 85). The relationship between the two instruments is clear as regards Article 11 of Regulation No 2201/2003: in the judgment of 16 February 2023, Rzecznik Praw Dziecka and Others (Suspension of the return decision) (C‑638/22 PPU, EU:C:2023:103, paragraph 62), the Court describes that provision and Articles 8 to 11 of the 1980 Hague Convention as a ‘unitary body of rules’, as it already had in Opinion 1/13, paragraph 78. Article 10 does not present such a close connection: from that perspective, so long as attention is paid to consistency between the instruments, it is possible to argue that it provides for applications for return that are not covered by the 1980 Hague Convention and that it does not allow for certain applications for return, even though they are covered by that convention.
(
15
)	Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded at The Hague on 19 October 1996 (‘the 1996 Hague Convention’). Article 7 of that convention, which is the functional equivalent of Article 10 of Regulation No 2201/2003, takes precedence over Article 16 of the 1980 Hague Convention: see the explanatory report prepared by Paul Lagarde, published in Hague Conference on Private International Law, Proceedings of the Eighteenth Session (1996), Tome II, p. 532 et seq. (‘the Lagarde Report’), paragraph 46. In Spanish, Regulation No 2201/2003 uses the term ‘restitución’ (literally, ‘restitution’), while the two Hague conventions use ‘retorno’ (literally, ‘return’). In English and French (the languages of the two authentic versions of the conventions), all three instruments use ‘retour’ and ‘return’. In principle, the meaning is the same for all three: see, however, the previous footnote.
(
16
)	By that, I understand an application the sole purpose of which is the return of the child to the State of origin as soon as possible, without attempting to clarify substantive aspects relating to parental responsibility.
(
17
)	The authentic versions of the preamble to the 1980 Hague Convention refer to the return of the child or children ‘dans l’État de sa residence habituelle’ and ‘to the State of their habitual residence’. Article 1, on the other hand, does not include that specification.
(
18
)	Based on the literal sense of Article 10 of Regulation No 2201/2003, in the judgment in MCP, paragraphs 39 and 40, the Court held that ‘the criteria selected in that provision for the purposes of conferring jurisdiction in cases of child abduction relate to a situation which is confined to the territory of the Member States’. It added that ‘that article deals solely with jurisdiction in cases of child abductions from one Member State to another’. Then, the interpretation of the provision was at issue where the child, following wrongful removal to a third State, had consolidated her habitual residence in that State. The difference between those facts and those of the present case, in which the return of the child to Switzerland is sought, but where the wrongful removal was from Germany to Poland, is such that those statements (and, therefore, the literal argument) cannot be regarded as settling, by themselves, the questions which are here being examined.
(
19
)	The judgment in Povse, paragraph 45. That judgment concerned Article 10(b)(iv) of Regulation No 2201/2003 and the notion of a ‘judgment on custody that does not entail the return of the child’. The Court of Justice held that only a final judgment corresponds to that notion.
(
20
)	I understand that proponents of this view base it, as the Commission’s representative did at the hearing, on the order of 10 April 2018, CV (C‑85/18 PPU, EU:C:2018:220, paragraph 51). In that order, the Court extended the conclusions of the judgment in Povse regarding Article 10(b)(i) of Regulation No 2201/2003 to point (a) and to the other sub-points of point (b) of the provision.
(
21
)	The judgment in MCP, paragraph 47.
(
22
)	And, it should be added, in spite of the interim nature of the situation of the wrongfully removed child, to which I refer in footnote 28.
(
23
)	The greater suitability of the courts of the Member State in which the child has his or her new habitual residence does not appear to be disputed, even in such cases: see the judgment in MCP, paragraph 60. Those courts are also usually better placed to hear the case within the meaning of Article 15 of Regulation No 2201/2003: the judgment in TT, paragraph 44.
(
24
)	The judgment in MCP, paragraph 59. For that reason (among others), in that case, where the destination of the wrongful removal was a third State where the child had acquired her habitual residence, the Court of Justice declined to extend the jurisdiction resulting from Article 10 of Regulation No 2201/2003 without a time limit.
(
25
)	I would add that, for the purposes of Article 10(b)(i) of Regulation No 2201/2003, what matters is the making of the application and not its result. International jurisdiction is not lost automatically if the decision that follows the application is that the child should not be returned: in that case, the situation becomes that provided for in Article 10(b)(iii).
(
26
)	Article 10(b)(i) and (ii).
(
27
)	Article 10(b)(iii) of Regulation No 2201/2003. This provision is limited to the situation in which the return is sought – and is refused – under the 1980 Hague Convention. Between EU Member States, that is the normal mechanism for applications for the return of children, which does not exclude others if they are more likely to secure the child’s return. It would be reasonable if the rule in Article 10(b)(iii) were also extended to those other mechanisms.
(
28
)	Interim in jurisdictional terms as envisaged by the legislature itself, but also interim in terms of the facts, even though the child has his or her habitual residence in the Member State to which he or she has been wrongfully removed. In accordance with Article 10(b) of Regulation No 2201/2003, read a contrario sensu, if, at the end of one year from when the holder of rights of custody had or should have had knowledge of the whereabouts of the child, the child is not yet settled in his or her new environment, despite having acquired his or her habitual residence there, the jurisdiction of the courts of the Member State of origin is not lost. I observe that, as laid down in the first paragraph of Article 12 of the 1980 Hague Convention, if, when the return proceedings commence, one year has not elapsed since the child’s abduction, the authorities of the destination Member State must order his or her return. The explanatory report by Elisa Pérez Vera, which accompanies that convention, published in Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session (1980), Tome III, p. 426 et seq. (‘the Pérez Vera Report’), paragraph 107, explains the establishment of that time limit as an attempt to translate the test of ‘integration of the child’ into an objective rule. However, the second paragraph of Article 12 of that convention provides that, even where it is requested later, it is still imperative to order the return of the child, unless it is demonstrated that the child is now settled in his or her new environment.
(
29
)	The regulations as drawn up envisage a typical configuration of facts, in which the central elements which led to the child’s previous State of residence being described as his or her ‘environment’ still remain there. For its part, in paragraph 110, the Pérez Vera Report describes an atypical situation in which the child’s environment is ‘a basically family one’ and the person seeking the return of the child no longer lives in the State of the child’s habitual residence prior to his or her removal. In view of the practical difficulties which would arise from returning the child to that State, she suggests that the 1980 Hague Convention authorises the return of the child to a different State. At the hearing, the representative of L’s father referred to that paragraph of the report in support of an interpretation of Regulation No 2201/2003 different from that to which I subscribe. However, even supposing that the facts of the main proceedings matched the situation described in the report, the EU legislature does not appear to have considered that atypical situation and its implications in terms of international jurisdiction.
(
30
)	I observe that Regulation No 2201/2003 aims to prevent the abduction of children between Member States. If, in spite of everything, it happens, the aim is ‘to obtain the child’s return without delay’ (the judgment in Povse, paragraph 43). The return is so important that, in the logic of the 1980 Hague Convention, the application for custody must wait until the request for return has been decided. The 1996 Hague Convention takes the same line, although it is somewhat more flexible. Footnote 31 below.
(
31
)	That is the case to such an extent that in the 1980 Hague Convention, an effort is made to make the application for custody conditional on the request for return: see Article 34 and the Pérez Vera Report, paragraph 40. That concern also exists in the 1996 Hague Convention, which would allow a more flexible solution only exceptionally (the Lagarde Report, paragraph 168).
(
32
)	Between Member States, Regulation No 2201/2003 of course facilitates recognition of the custody decision, mitigating the concern regarding the time factor, which played a decisive role in other contexts (footnote 31 above). However, the design and duration of the custody procedure is in the hands of the Member States and, unlike what happens under Article 11(3) of Regulation No 2201/2003, there is no rule regarding a time limit for reaching a decision. I note that there was such a rule in the Commission’s proposal: see COM(2002) 222 final, Article 21(b)(ii).
(
33
)	Point (b)(iv) presents a certain degree of autonomy in this context. It focuses on custody decisions which do not entail the return of the child, issued in the Member State of his or her habitual residence prior to being removed. It appears that, for the purposes of point (b)(iv), any custody decision will suffice: there is nothing to indicate that it relates to a decision in consequence of the action referred to in point (b)(iii).
(
34
)	Regulation No 2201/2003 does not deal with a positive response.
(
35
)	Prior to that moment, it is also possible to demand the return of the child, but its physical realisation is not possible, and, therefore, it does not seem reasonable to impose that step as a requirement for the continuance of the jurisdiction of the Member State in which the child had his or her former habitual residence. Moreover, evident practical problems arise, such as that of which authorities have the power to order the return, although the redirection of the application is provided for. See Article 9 of the 1980 Hague Convention.
(
36
)	The Court has not criticised cases in which the proceedings are attempted in parallel: see, inter alia, the judgment in TT, paragraphs 19 and 20.
(
37
)	If the other conditions of Article 10(b) of Regulation No 2201/2003 are also satisfied.
(
38
)	I use this term even though, in the light of the account of the facts, it seems to me debatable whether this is a request for return, in the strict sense, and not for relocation of the child, attempted through the channels of the 1980 Hague Convention.
(
39
)	Written observations of the Commission, paragraph 43.
(
40
)	That is, because the procedure provided for in the 1980 Hague Convention has been initiated between Member States.
(
41
)	The wording in question would be the first paragraph, point (a), according to which ‘the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – (a) the person … had consented to or subsequently acquiesced in the removal or retention’.
(
42
)	At the hearing, the representatives of the German Government and L’s father explained that, according to national law, in family disputes, the court, of its own motion, carries out the investigations necessary to establish the facts relevant to the decision. It would not, therefore, be possible to assert a potential ‘barring of a new account of the facts given by the father’ in one set of proceedings (relating to custody) as compared with another set of proceedings (relating to return), as the referring court seems to suggest.
(
43
)	Nor, indeed, any others. Regulation No 2201/2003 confines itself to requiring examination as to jurisdiction and, where necessary, a declaration by the court concerned, of its own motion, that it has no jurisdiction: see Article 17.
(
44
)	Judgment of 22 December 2010, Mercredi (C‑497/10 PPU, EU:C:2010:829), paragraph 62 et seq., and the judgment in OL, paragraph 65.
(
45
)	The judgment in OL, paragraph 58.
(
46
)	In a matter in which the interests of the child are paramount, the statements of a parent regarding when the removal was, or became, wrongful (such as a situation, where relevant, equivalent to learning the whereabouts of the child) should not be binding on the court called on to apply Article 10 of Regulation No 2201/2003. In that regard, the dies a quo must be the date from which, in light of the evidence, there cannot objectively be any reasonable doubt regarding the fact that the child is not going to be returned to the Member State of origin.