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Article 24 - The rights of the child
Article 51 - Field of application
Key facts of the case:
It follows from the content of the Constitutional complaint that a Polish citizen (the Claimant) and a Slovak citizen (hereinafter only as the “mother”) lived as partners in London at the time of the birth of their daughter in 2012 (referred to in the resolution as the “child”). On June 17, 2015, the mother left the territory of the UK with the three years old child and travelled to the Slovak Republic where she stayed and never returned to the UK. That is when Claimant sought help of the UK authorities due to a suspicion of international child abduction. The Claimant was registered as a father of the child in the birth certificate issued by the UK (on 8 january 2016). However, the Slovak birth registry authority registered in the Slovak birth certificate another man in Slovakia as the father of the child, on the basis of the “consent of the fatherhood” from the Slovakian man with the mother (on 22 February 2016). Therefore there were two birth certificates in two countries issued with different data, but later on the Slovak certificate has been corrected and the name of the Slovak man has been deleted from the Slovak birth certificate.
At the request of the Claimant, the High Court of Justice, Family Division ("the High Court of Justice") in UK decided on 8 October 2015 that the child's habitual residence is in England and Wales, and that the child left this residence on 17 June 2015 without the knowledge or the consent of her father (in case no. FD15P00428, decision ZC15P00974). The mother of the Claimant’s child did not accept the decision of the Hight Court of Justice, therefore the Claimant lodged a claim at the Prievidza District Court ('the District Court') on 10 November 2015, in which he demanded recognition of the decision of The High Court of Justice and an order for its enforcement pursuant to Regulation No. 2201/2003 to return the child to its habitual residence. Only on the basis of the existence of the (purposefully amended) Slovak birth Certificate of the child the Slovak Regional Court in Trenčín issued a resolution that in this case the best interests of the child is in clear conflict with the public order because the child would de jure have two fathers. According to the Constitutional court, by this resolution actually the Regional court completely denied the Claimant's rights towards the child, despite the fact that its decision already followed a decision of the first Slovak court addressed by the Claimant in 2015 - the District Court in Prievidza, which recognized the parental rights of the Claimant. The Supreme Court of the Slovak Republic (the "Supreme Court") dismissed the appeal of the Claimant as inadmissible for errors of filing in the appeal. Since he did not succeed with the claim in all judicial instances in Slovakia (District Court in Prievidza, Regional Court in Trenčín and the Supreme Court of the Slovak Republic), he eventually turned to the Constitutional Court of the Slovak Republic (hereinafter only as the “Constitutional Court”).
Key legal question raised by the Court:
Why the refusal of the Slovak lower courts to recognize the decision of the British High Court of Justice in the section on "parental responsibility" of the applicant is in the best interests of the child?
Outcome of the case:
The Constitutional court answered that the reference of the Regional court to the provision on infringement of a public order as a reason for non-recognition of a foreign decision does not meet the requirements arising from the case law of the Court of Justice relevant for Article 23 letter (a) of Regulation No. 2201/2003, according to which a reference to a public order provision is permissible only if, in the best interests of the child, recognition of a decision given by another Member State would unacceptably infringe the law of the State in which recognition is sought, whereas it would jeopardize some of its fundamental principles. However, the Regional Court did not state in the reasoning of the contested resolution any legal norm which would be considered essential for the legal order of the Slovak Republic and which would be violated by the recognition of the decision of the High Court of Justice. Nor did it mention a fundamental right which could be infringed as a result of the recognition of the High Court of Justice's decision. From that point of view, the justification for not recognizing the decision of the High Court of Justice by reference to a breach of public policy seems quite formal.
The implications of the judgement to the facts of the case were following: According to the decision of the Constitutional Court the contested resolution of the Regional Court interfers with the Complainant's rights, and this intervention is of a constitutional relevance. The decision of a Regional Court completely denied the complainant's rights, is arbitrary and therefore in conflict with Art. 46 par. 1 of the Constitution and Art. 6 par. 1 of the Convention. Given the high degree of constitutional unacceptability of the contested decision of the Regional court, there was a direct causal connection between the violation of the complainant's fundamental right to judicial protection under Art. 46 par. 1 of the Constitution and the right to a fair trial pursuant to Art. 6 par. 1 of the Convention and unauthorized interference with his fundamental right to protection of private and family life. The Constitutional Court overturned the decisions of the general courts and remanded the case for further proceedings. In these proceedings, the courts are bound by the legal opinion of the Constitutional Court.
31. The contested resolution of the Regional Court lacks an explanation as to why the refusal to recognize the High Court of Justice's decision in the section on the applicant's "parental responsibility" is in the best interests of the child, within the meaning of Art. 23 letter (a) of Regulation 2201/2003. The protection of the best interests of the child is also provided for in Art. 24 of the Charter of Fundamental Rights of the European Union, the protection of which the regional court should have guaranteed in this case, since the application of Regulation 2201/2003 implements Union law at Member State level, as provided for in Art. 51 par. 1 of the Charter of Fundamental Rights of the European Union in connection with the determination of its scope.
31. V napadnutom uznesení krajského súdu absentuje vysvetlenie, prečo je odmietnutie uznania rozhodnutia High Court of Justice v časti o „rodičovskej zodpovednosti“ sťažovateľa v najlepšom záujme dieťaťa, v zmysle čl. 23 písm. a) nariadenia 2201/2003. Ochranu najlepšieho záujmu dieťaťa predpokladá aj čl. 24 Charty základných práv Európskej únie, ktorého ochranu mal krajský súd v tomto prípade garantovať, keďže v dôsledku aplikácie nariadenia 2201/2003 dochádza k vykonávaniu práva Únie na úrovni členského štátu, tak ako to normuje čl. 51 ods. 1 Charty základných práv Európskej únie v súvislosti s určením rozsahu jej pôsobnosti.