Child and Family Agency v J. D.
Date: 2016-10-27
29


It must, first, be observed that, on the one hand, 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, and, on the other, Article 15 lays down a specific rule of jurisdiction that derogates from the general rule of jurisdiction, laid down in Article 8 of that regulation, that designates the courts of the place where the child is habitually resident as the courts having jurisdiction as to the substance of those cases.
30


Taking into consideration the structure of Section 2 of Chapter II of Regulation No 2201/2003 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 (see, to that effect, judgment of 19 November 2015, P, C‑455/15 PPU, EU:C:2015:763, paragraph 44).
32


However, the Court has previously held, on a number of occasions, that 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 (see, to that effect, judgments of 27 November 2007, C, C‑435/06, EU:C:2007:714, paragraphs 34, 50 and 51; of 2 April 2009, A, C‑523/07, EU:C:2009:225, paragraphs 24 and 27 to 29, and of 26 April 2012, Health Service Executive, C‑92/12 PPU, EU:C:2012:255, paragraphs 60 and 61).
43


The requirement that the transfer of a case to a court of another Member State must be in the best interests of the child constitutes, as stated in essence by the Advocate General in point 70 of his Opinion, an expression of guiding principle that was, on the one hand, followed by the legislature in designing Regulation No 2201/2003, and that must, on the other, determine the form of its application in cases relating to parental responsibility within its scope (see, to that effect, judgments of 11 July 2008, Rinau, C‑195/08 PPU, EU:C:2008:406, paragraph 51; of 1 October 2014, E., C‑436/13, EU:C:2014:2246, paragraph 45, and of 12 November 2014, L, C‑656/13, EU:C:2014:2364, paragraph 48).
44


In that regard, it must also be observed that 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, to that effect, judgments of 23 December 2009, Detiček, C‑403/09 PPU, EU:C:2009:810, paragraphs 53 to 55, and of 5 October 2010, McB., C‑400/10 PPU, EU:C:2010:582, paragraph 60).
47


However, Article 15(1) of Regulation No 2201/2003 permits the transfer of a given case to a court of a Member State other than that of the court that normally has jurisdiction, provided, as is stated in recital 13 of that regulation, that such a transfer meets specific conditions, on the one hand, and that it occurs by way of exception, on the other.
48


Thus, the rule of transfer to a court of another Member State laid down in Article 15(1) of Regulation No 2201/2003 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 (see, by analogy, judgments of 23 December 2009, Detiček, C‑403/09 PPU, EU:C:2009:810, paragraph 38, and of 21 October 2015, Gogova, C‑215/15, EU:C:2015:710, paragraph 41).
50


More specifically, it must be recalled, first, that, 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’.
51


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 Regulation No 2201/2003. It follows that cases where those factors are lacking are immediately excluded from the transfer mechanism.
52


It is however clear that 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.
57


To that end, the court having jurisdiction must determine whether the transfer of the case to that other court is such as to provide genuine and specific added value, with respect to the decision to be taken in relation to the child, as compared with the possibility of the case remaining before that court. In that context, 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. If the court were to take that into consideration, doing so would be in breach of the principles of mutual trust between Member States and mutual recognition of judgments that are the basis of Regulation No 2201/2003 (see, to that effect, judgments of 23 December 2009, Detiček, C‑403/09 PPU, EU:C:2009:810, paragraph 45, and of 15 July 2010, Purrucker, C‑256/09, EU:C:2010:437, paragraphs 70 and 71).
58


Third and last, the requirement that the transfer must be in the best interests of the child implies that the court having jurisdiction must be satisfied, having regard to the specific circumstances of the case, that the envisaged transfer of the case to a court of another Member State is not liable to be detrimental to the situation of the child concerned.