Family Law

The judgment is available at: C-478/17

Background

The parties were married and had three children. Those children had lived in the UK with IQ, their mother, since 2012 while their father, JP, lived in Romania. in November 2014, IQ initiated divorce proceedings in Romania. She further sought an order granting her sole parental responsibility and custody of the children and an order that JP pay an allowance for their maintenance and education. JP counterclaimed for divorce on grounds of mutual consent or, in the alternative, on grounds of joint fault, the award of joint parental responsibility for the children and the establishment of a programme for maintaining contact with the children.

At the hearing, the court examined whether it had international jurisdiction and declared that it did have jurisdiction to hear the case. With the parties agreeing to divorce on grounds of mutual consent, that court held that the requirements were met for it to give a ruling on that head of claim. Consequently, it granted a divorce on grounds of mutual consent and severed the ancillary heads of claim from the divorce claim, continuing its deliberations on those heads of claim by setting a date for a hearing at which the parties could submit evidence. By civil judgment, the court partially upheld IQ's claim and JP's counterclaim. Both parties appealed against that judgment before the Regional Court, Cluj, Romania (the referring court).

IQ applied to the High Court of Justice (England and Wales), Family Division, Birmingham, for a restraining order against JP. IQ also asked that court, among other things, to determine who would be awarded custody of the children. The same day, that court adopted an interim measure under which the children were not to reside with the father pending a final ruling in the case. It subsequently invited the referring court to relinquish jurisdiction in the case, on the ground that the children were resident in the UK, with the consent of the parents. 

The UK High Court further asked the Romanian court to transfer the case to it pursuant to art 15 of Regulation (EC) No 2201/2003 (art 15) on the ground that, since the habitual residence of the children concerned had been the UK since at least 2013, including during the entire proceedings before the Romanian courts, it was the court better placed to hear the case within the meaning of that provision. Article 15(1) provided that the courts of a member state having jurisdiction as to the substance of a case could transfer that case, or a specific part thereof, to a court of another member state with which the child had a particular connection, if they considered that that court was better placed to hear the case, and where the transfer was in the best interests of the child.

If the referring court transferred the case to the UK High Court on the basis of art 15, it would not be able to rule on the appeals lodged by IQ and JP before it, so that the decision handed down at first instance would remain in force, in accordance with the Romanian Civil Code of Procedure. In those circumstances, the referring court stayed the proceedings and referred certain questions to the Court of Justice of the European Union (the Court) for a preliminary ruling.

Issues and decisions

Whether art 15 should be interpreted as applying to a situation in which the courts of the two member states in question had jurisdiction to determine the substance of the matter pursuant to arts 8 and 12 of that regulation.

Article 15(1) allowed the court that normally had jurisdiction to rule on matters of parental responsibility, whether under the general rule set out in art 8(1) of that regulation or by prorogation of jurisdiction on the basis of art 12 of that regulation, to transfer its jurisdiction, over all or over a specific part of the case before it, to a court that would not normally have jurisdiction in the matter but which, in the circumstances of the particular case, should be considered to be 'better placed' to hear that case. For the purpose of identifying the court best placed to hear a given case, it was necessary, in particular, to designate a court of another member state with which the child concerned had a 'particular connection'. In accordance with the Court's caselaw, in order to establish whether there was such a connection in a particular case, reference should be made to the factors that were listed, exhaustively, in art 15(3)(a) to (e) of the Regulation. It followed that cases where those factors were not present were immediately excluded from the transfer mechanism (see [33]-[35] of the judgment).

It was clear that the situation in the main proceedings, in which the children had lived and continue to be habitually resident in the UK, the member state with which it was necessary to establish a particular connection, did not align with any of the factors listed in that provision. In particular, the factor set out in art 15(3)(b) of Regulation, whereby 'the Member State is the former habitual residence of the child' necessarily referred to circumstances in which the child once resided but no longer habitually resided in the member state with which it was necessary to establish a particular connection. Further, the factors listed in art 15(3) all, if not expressly, at least in essence, concerned evidence of a close connection 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 arts 8(1) or 12 of that regulation (see [36]-[38] of the judgment).

Accordingly, the court of another member state with which the child in question had a particular connection and which was best placed to hear the case, as referred to in art 15(1), could not be the court that normally had jurisdiction as to the substance of the case on the basis of arts 8 or 12 of that regulation. It followed that art 15 should be interpreted as not applying in circumstances in which the courts of both member states had jurisdiction as to the substance of the matter under arts 8 or 12 of that regulation (see [39], [40] of the judgment).

Preliminary ruling determined.

Neneh Munu Barrister.