Little one Custody Guidelines Do Not Prolong Previous EU Borders, Bloc’s High Court docket Finds – Courthouse Information Service
The court-held EU member states do not reserve an indefinite right to rule on custody cases when a child is illegally removed from the block.
The European Court of Justice in Luxembourg. (Courthouse News Photo / Molly Quell)
LUXEMBOURG (CN) – A father living in the UK cannot pursue custody of his daughter living in India as European Union custody does not extend to third countries, the EU Supreme Court ruled on Wednesday.
The European Court of Justice ruled that the so-called Brussels II Agreement, the EU regulation on the rights and obligations of parents, should not regulate custody disputes outside the member states. The court said parents would have to rely on other international treaties to assess these situations.
“It comes from the legislative history of [Brussels II] that the EU legislator wanted to set strict rules for child abductions within the European Union, but did not intend to apply these rules for child abductions in a third country, ”the Fifth Chamber’s decision said.
The High Court of Justice for England and Wales referred the matter to the Luxembourg-based court last November. This makes the case one of the last UK-based matters to be considered by the EU court. The UK officially left the political and economic union on December 31, 2020. The Court of Justice remains competent to deal with disputes that arose when the UK was subject to EU law.
The 3½-year-old girl at the center of the case, identified only as P in court documents, is a UK national but has lived with her maternal grandmother in India since 2019. According to their mother, identified as MCP, the couple fled to India to avoid abuse by P’s father, who is known as the SS. Both parents are Indian nationals living in the UK
MCP has since returned to work in the UK. In 2019 she asked the Chelmsford Family Court for an order to “change the child’s jurisdiction.” P’s father, now married and raising another child, filed the underlying custody suit in the High Court of Justice for England and Wales in August 2020.
According to Brussels II, the Member State in which the child “ordinarily lives” has jurisdiction in custody disputes. According to the British court, “the child was ordinarily a resident of India and was fully integrated into an Indian social and family environment, as their specific factual ties to the United Kingdom, other than citizenship, did not exist.”
The court ruled on Wednesday that the UK should not have jurisdiction over the custody dispute under EU law.
“If the jurisdiction of the home Member State courts were retained unconditionally and indefinitely, this retention of jurisdiction would prevent the court from assessing the best interests of the child in being able to hear applications,” wrote the five-member jury .
Instead, the court pointed to other legal avenues to address the situation, including the 1996 Hague Convention. While the UK is a party that protects children’s rights and covers international child abduction by parents, India is not Case.
“The court of the Member State concerned must determine its jurisdiction on the basis of any bilateral or multilateral international convention or, if there is no such international convention, on the basis of the rules of its national law,” the decision said.
Wednesday’s decision contradicts an opinion issued last month by the court’s Advocate General, Athanasios Rantos. He considered that when a child is illegally admitted outside the EU, Member States retain an indefinite right to rule on custody cases regardless of where the child lives. Judges’ opinions are non-binding, although final decisions are often based on their legal justification.
The case is now returning to the UK court for a final decision on the case.