(Court of Justice of the European Union, 15 February 2017)
Jurisdiction – BIIA – Habitual residence – Whether a court retained jurisdiction despite the child living in a different Member State
The CJEU made a preliminary ruling as to jurisdiction in private law children proceedings.
The Lithuanian father and Dutch/Argentinian mother were married in the USA. Their child was born in 2006 in the Netherlands and held dual Lithuanian and Italian nationality but he had never visited Lithuania. The family moved to Canada in 2007 and the parents separated in 2010.
In 2011 the mother and child moved to Italy before returning to the Netherlands. The father was habitually resident in Lithuania.
The mother was granted a divorce in 2011 in the Canadian court as well as sole custody of the child. Neither the Lithuanian nor Dutch court recognised and enforced that order.
Also in 2011 the Lithuanian court granted the husband a divorce and sole custody of the child. That decision was subsequently overturned and custody was awarded to the mother. The court also made contact and maintenance provisions.
In 2014 the Netherlands court ordered the father to pay the mother maintenance for herself and the child and granted the mother sole custody. The Lithuanian court refused to enforce the order and the father applied to amend the previous order of the Lithuanian court.
The court stayed the proceedings and referred the matter to the CJEU for preliminary ruling. The CJEU rephrased the questions asked to: whether Art 8 of BIIA must be interpreted as meaning that the courts of the Member State which had adopted a decision that had become final concerning parental responsibility and maintenance obligations in respect of a minor child retained jurisdiction to rule on an application for amendment of the orders made in that decision, even though the child was habitually resident in the territory of another Member State.The CJEU held that for the purposes of Art 8 of BIIA where the courts of a Member State had made a final decision concerning parental responsibility and maintenance obligations with regard to a minor child, those courts no longer had jurisdiction to decide on an application for variation of the provisions ordered in that decision, inasmuch as the habitual residence of the child was in another Member State. It was the courts of the Member State of habitual residence that had jurisdiction to decide on that application.