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Key facts of the case:

This case concerns the interpretation of Article 20 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 made in the course of proceedings between Ms Detiček and Mr Sgueglia concerning custody of their daughter Antonella. As part of divorce proceedings, the Italian Court provisionally granted sole custody of Antonella to Mr Sgueglia and ordered her to be placed temporarily in an identified children’s home. Ms Detiček then returned to Slovenia with her daughter in contravention of that order. Action was then brought in the Slovenian courts for the return of Antonella to Italy. Then Slovenian Court sought a ruling on the interpretation of Article 20 of Regulation No 2201/2003. This states that “[i]n urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter.” The Slovenian Court asked whether this provision allowed a court of a Member State to take a provisional measure in matters of parental responsibility granting custody of a child who is in the territory of that Member State to one parent, where a court of another Member State, which has jurisdiction under that regulation as to the substance of the dispute relating to custody of the child, has already delivered a judgment provisionally giving custody of the child to the other parent, and that judgment has been declared enforceable in the territory of the former Member State.

Results (sanctions) and key consequences of the case:

The ECJ ruled that the Regulation provision did not allow, “in circumstances such as those of the main proceedings, a court of a Member State to take a provisional measure in matters of parental responsibility granting custody of a child who is in the territory of that Member State to one parent, where a court of another Member State, which has jurisdiction under that regulation as to the substance of the dispute relating to custody of the child, has already delivered a judgment provisionally giving custody of the child to the other parent, and that judgment has been declared enforceable in the territory of the former Member State.”

Interpretation of article(s) and implications for the resolution of the case:

In interpreting the Regulation the ECJ referred to Article 24 of the EU Charter of Fundamental Rights which concerns the rights of the child. In particular, it stated that Article 24(3) of the Charter contains the right “to maintain on a regular basis a personal relationship and direct contact with both parents, respect for that right undeniably merging into the best interests of any child. (para 54) Article 20 of Regulation No 2201/2003 cannot be interpreted in such a way that it disregards that fundamental right. (para 55) In this respect, it is clear that the wrongful removal of a child, following a decision taken unilaterally by one of the parents, more often than not deprives the child of the possibility of maintaining on a regular basis a personal relationship and direct contact with the other parent. (para 56) Article 20 of Regulation No 2201/2003 cannot therefore be interpreted in such a way that it can be used by the parent who has wrongfully removed the child as an instrument for prolonging the factual situation caused by his or her wrongful conduct or for legitimating the consequences of that conduct.” (para 57) This would be subject to considering “another interest of the child of such importance that it takes priority over the interest underlying that fundamental right” (para 59) It went on to say that “a balanced and reasonable assessment of all the interests involved, which must be based on objective considerations relating to the actual person of the child and his or her social environment, must in principle be performed in proceedings before the court with jurisdiction as to the substance in accordance with the provisions of Regulation No 2201/2003.” (para 60)