In the case of TT (unlawful removal of a child) (C-87/22, 13.7.2023), the CJEU ruled on the requirements of Article 15 of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II bis). This provision allows a case concerning the wrongful removal of a child to be transferred from the court of the Member State of the habitual residence of the child to a court of another Member State which is considered to be better placed to hear the case, if such a transfer is in the best interests of the child and the latter has a particular connection with that other Member State.
In the case at hand, two children had been wrongfully removed from Austria to Slovakia by their mother, without the agreement of their father. The mother made an application for the Austrian courts, which under Article 10 of the Regulation had jurisdiction in relation to parental responsibility over the children, to request a court in Slovakia to assume jurisdiction, pursuant to Article 15 of the Regulation. One of those courts interrogated the CJEU about the requirements of that provision, and more particularly about whether the court to which a case would be transferred on this basis could also be a court of the Member State to which the child concerned had been wrongfully removed.
After recalling the rationale of the scheme put in place by the Regulation in this field, which is based on the Hague Convention on the Civil Aspects of International Child Abduction and aims at preserving the best interests of the child while at the same time deterring parents from wrongfully removing their children, the CJEU concluded that Article 15 of the Regulation did not oppose a transfer of the case to a court located in the Member State to which the child has been removed (§ 44). The CJEU notably stated:
The court with jurisdiction as to the substance, under Article 10 of Regulation No 2201/2003, must be satisfied, having regard to the specific circumstances of the case, that the transfer proposed is not likely to have a negative impact on the emotional, family and social relationships of the child concerned or on the child’s material circumstances … and must make a balanced and reasonable assessment, in the best interests of the child, of all the interests involved, which must be based on objective considerations relating to the actual person of the child and his or her social environment ….
Hence, it is not contrary to the objectives pursued by Regulation No 2201/2003 for a court with jurisdiction in matters of parental responsibility on the basis of Article 10 of that regulation to be able, exceptionally and after having taken due account, in a balanced and reasonable manner, of the best interests of the child, to request the transfer of the case of which it is seised to a court in the Member State to which the child concerned has been wrongfully removed by one of his or her parents. (§§ 50-51)
Interestingly, these are exactly the kind of considerations which the ECtHR relies on when assessing whether a decision made on the return of a child is compatible with Article 8 of the Convention (right to family life). In such situations, the ECtHR indeed examines whether the judge concerned, whether from the Member State of the habitual residence of the child or from their new residence, duly considered all the circumstances of the case and whether their decision on the return of the child could be said to be in the best interests of the child, as it did e.g. in Royer v. Hungary.
Thus, while under the Regulation the consideration of whether it is in the best interests of a wrongfully removed child to be returned to their habitual residence is, pursuant to Article 10 of the Regulation, the exclusive competence of the court of the habitual residence of the child, unless its competence was transferred by virtue of Article 15, there is no such exclusive competence under Article 8 of the Convention.
While adhering in principle to the approach underlying the Hague Convention and the Regulation according to which a wrongfully removed child should be quickly returned to his habitual residence (see Michnea v. Romania, Voica v. Romania, Veres v. Spain), the ECtHR’s competence is limited to examining whether any judicial decision made on the return of the child, whether in the former or the new residence of the child, was in conformity with Article 8 of the Convention. As the ECtHR put it:
The Court must satisfy itself that the decision-making process leading to the adoption of the impugned measures by the domestic courts was fair and allowed those concerned to present their case fully, and that the best interests of the child were defended (X. v. Latvia, § 102; Voica v. Romania, § 53).
This can result in the ECtHR considering that the refusal by a court of the new residence of the child to order the return of the latter was not in breach of Article 8 of the Convention, as in M.K. v. Greece, Royer v. Hungary and O.C.I. and Others v. Romania, or that the return order by a court of the habitual residence of the child was in breach of Aricle 8 because that court had not thoroughly examined the case, as in Šneersone and Kampanella v. Italy. As the ECtHR repeatedly stated in such cases, it must verify that the principle of mutual recognition is not applied automatically and mechanically (Royer v. Hungary, § 50).
In other words, the absence of a transfer of jurisdiction over the child under Article 15 of the Regulation does not prevent the ECtHR from scrutinising the decision over the return of the child made by a court from another State than the one of the habitual residence of the child. This is because issues about exclusive jurisdiction – which in principle do not fall within the scope of Article 8 anyway – should not prevent a grave risk to the best interests of the child from being taken care of by the judge before whom this risk happens to be pleaded. In one sentence: in the face of grave risks, the best interests of the child should not be allowed to hinge on issues about jurisdiction.
This, in turn, means that by virtue of Article 8, a judge of the new residence of the removed child is not bound, in the event of a grave risk for the child, to wait for a formal transfer of jurisdiction to him/her by the court having jurisdiction under Article 10 of the Regulation – a scenario which indeed rather rarely occurs – before considering whether the child should be returned or not. A failure to act accordingly might even entail the Convention liability of the judge concerned. This is in line with what the ECtHR stated in Avotiņš v. Latvia :
Where the courts of a State which is both a Contracting Party to the Convention and a Member State of the European Union are called upon to apply a mutual recognition mechanism established by EU law, they must give full effect to that mechanism where the protection of Convention rights cannot be considered manifestly deficient. However, if a serious and substantiated complaint is raised before them to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law. (§ 116)