Case C‑428/15

Child and Family Agency

v

J.D.

(Request for a preliminary ruling from the Supreme Court (Ireland))

‛Reference for a preliminary ruling — Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility — Regulation (EC) No 2201/2003 — Article 15 — Transfer of a case to a court of another Member State — Scope — Conditions under which applicable — Court better placed — Best interests of the child’

Summary — Judgment of the Court (Third Chamber), 27 October 2016

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 — Transfer to a court better placed to hear the case — Conditions for application — Prohibition on the Court having jurisdiction taking account of the effect of such a transfer on the right of freedom of movement of persons concerned other than the child in question, or the reason why the mother of that child exercised that right

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 — Transfer to a court better placed to hear the case — Scope — Child protection application brought under public law by the competent authority of a Member State concerning the adoption of measures relating to parental responsibility — Necessary consequence of a court of another Member State assuming jurisdiction that an authority of that other Member State thereafter bring proceedings that are separate from those brought in the first Member State — Included

Article 15 of Regulation (EC) No 2201/2003 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 it is applicable where a child protection application brought under public law by the competent authority of a Member State concerns the adoption of measures relating to parental responsibility, where it is a necessary consequence of a court of another Member State assuming jurisdiction that an authority of that other Member State thereafter commence proceedings that are separate from those brought in the first Member State, pursuant to its own domestic law and possibly relating to different factual circumstances. Article 15 of Regulation No 2201/2003 is in Section 2 of Chapter II of that regulation, that section establishing a body of rules of jurisdiction in cases concerning parental responsibility. Taking into consideration the structure of Section 2 of Chapter II of that regulation and the place occupied in that section by Article 15, it must be held that the scope ratione materiae of Article 15 is the same as that of the body of rules of jurisdiction laid down in that section, and in particular that of Article 8 of that regulation. In that regard, it is certainly stated in Article 1(1) and (2) of Regulation No 2201/2003 that those rules of jurisdiction apply to ‘civil matters’ relating to the attribution, exercise, delegation or termination of parental responsibility, the latter concept being defined in Article 2(7) of that regulation. However, the rules of jurisdiction laid down by Regulation No 2201/2003 in the matters of parental responsibility must be interpreted, in the light of recital 5 of that regulation, as meaning that they are applicable in cases relating to parental responsibility concerning the adoption of child protection measures, including cases where those measures are considered, under the domestic law of a Member State, to be governed by public law. Further, since the application of a national rule of procedure whereby it is a necessary consequence of a court of another Member State assuming jurisdiction that an authority of that Member State thereafter commence proceedings that are separate from those brought in the first Member State can only be subsequent to a decision having been made by the court normally having jurisdiction to request the transfer of the case to a court of another Member State, pursuant to Article 15(1) of Regulation No 2201/2003, and to a decision having been made by that other court to assume jurisdiction on the basis of Article 15(5) of the regulation, that rule cannot be regarded as impeding the adoption of those decisions. (see paras 29-32, 36, 38, operative part 1)

It is stated in recital 12 of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, that the grounds of jurisdiction in matters of parental responsibility established in that regulation are shaped in the light of the best interests of the child. The requirement that the transfer of a case to a court of another Member State, under Article 15 of that regulation, must be in the best interests of the child constitutes an expression of guiding principle that was, on the one hand, followed by the legislature in designing that regulation, and that must, on the other, determine the form of its application in cases relating to parental responsibility within its scope. Further, the reason why the best interests of the child are taken into consideration, in the context of Regulation No 2201/2003, is, as is apparent from recital 33 of that regulation, to ensure respect for the child’s fundamental rights. (see paras 42-44)

The rule of transfer to a court of another Member State laid down in Article 15(1) of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, constitutes a special rule of jurisdiction that derogates from the general rule of jurisdiction laid down in Article 8(1) of that regulation, and consequently it must be interpreted strictly. Against that background, Article 15(1) of Regulation No 2201/2003 must be interpreted as meaning that the court of a Member State that normally has jurisdiction to deal with a given case must, if it is to be able to request a transfer to a court of another Member State, be capable of rebutting the strong presumption in favour of maintaining its own jurisdiction, on the basis of that regulation. (see paras 48, 49)

Article 15(1) of Regulation No 2201/2003 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 (i) in order to determine that a court of another Member State with which the child has a particular connection is better placed, the court having jurisdiction in a Member State must be satisfied that the transfer of the case to that other court is such as to provide genuine and specific added value to the examination of that case, taking into account, inter alia, the rules of procedure applicable in that other Member State, and (ii) in order to determine that such a transfer is in the best interests of the child, the court having jurisdiction in a Member State must be satisfied, in particular, that that transfer is not liable to be detrimental to the situation of the child. Under Article 15(1) of Regulation No 2201/2003, the transfer of a case concerning matters of parental responsibility, by a court of a Member State, must be made only to a court of another Member State with which the child concerned has a particular connection. In order to establish the existence of such a connection in a given case, reference must be made to the factors that are listed, exhaustively, in Article 15(3)(a) to (e) of that regulation. Those factors are all — if not expressly, at least in essence — evidence of a relation of proximity between the child concerned in the case and a Member State other than that of the court having jurisdiction to hear the case on the basis of Article 8(1) of that regulation. That said, the existence of a particular connection, relevant to the circumstances of the case, between the child and another Member State does not necessarily, in itself, prejudge either the question whether, in addition, a court of that other Member State is better placed to deal with the case than the court having jurisdiction, or, if that other court is in fact better placed, the issue whether the transfer of the case to that other court is in the best interests of the child. As regards the question whether there is, in the Member State with which the child has a particular connection, a court that is better placed to hear the case, the court having jurisdiction may take into account, among other factors, the rules of procedure in the other Member State, such as those applicable to the taking of evidence required for dealing with the case. However, the court having jurisdiction should not take into consideration, within such an assessment, the substantive law of that other Member State which might be applicable by the court of that other Member State, if the case were transferred to it. Further, as regards the requirement that the transfer must be in the best interests of the child, the court having jurisdiction must assess any negative effects that such a transfer might have on the familial, social and emotional attachments of the child concerned in the case or on that child’s material situation. (see paras 50-52, 55-59, 61, operative part 2)