(European Court of Justice; 2 April 2009)
The two elder children had been taken into care by the local authority in Finland, because of fears about their stepfather's violence. After the children were returned to the mother's care, the family settled in Sweden for about 3? years. The family then travelled to Finland for the holidays, staying in caravans, at a variety of campsites. After some months the parents applied to the Finnish authorities for housing; within a few weeks the Finnish authorities had taken the three children urgently into care, on the basis that the children had been abandoned. The children were initially placed with a foster-family, and later in a child-care unit. The mother appealed, arguing, amongst other things, that the children were permanently resident in Sweden, and that the case fell within the Swedish jurisdiction. The Finnish court referred four questions to the European Court of Justice for a preliminary ruling: whether or not Brussels II Revised applied to the decision to take the children into care; on the interpretation of habitual residence; on the conditions in which a member state could take an urgent protective measure under Art 20(1); and concerning the approach a member state without jurisdiction ought to take in such a case.
Brussels II Revised, Art 1(1) must be interpreted as meaning that a decision ordering that a child be immediately taken into care and placed outside his original home was covered by term 'civil matters', where that decision had been adopted in the context of public law rules relating to child protection. The concept of habitual residence under Art 8(1) must be interpreted as meaning that it corresponded to the place which reflected some degree of integration by the child in a social and family environment. To that end, the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family's move to that state, the child's nationality, place and conditions of school attendance, linguistic knowledge and the family and social relationships of the child in that State all had to be taken into consideration. It was for the national court to establish the habitual residence of the child, taking into account all the circumstances in the case. A protective measure, such as taking children into care, could be decided by a national court under Art 20 if the following conditions were satisfied: the measure must be urgent; must be taken in respect of persons in the member state concerned; and must be provisional. The taking of the protective measure and its binding nature were to be determined in accordance with national law. After the protective measure had been taken the national court was not required to transfer the case to the court of another member state having jurisdiction, but did have to inform, directly or through the central authority, the court of another member state having jurisdiction, in so far as the protection of the best interests of the child so required. If the court of a member state had no jurisdiction at all, it had to declare of its own motion that it had no jurisdiction, but was not required to transfer the case to another court. However, the national court that had declared of its own motion that it had no jurisdiction had to inform, directly or indirectly, the court of another member state having jurisdiction, in so far as the protection of the best interests of the child so required.