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CJEU - C-428/15 / Opinion

Child and Family Agency v. J. D.

Policy area:
Justice, freedom and security
Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Type:
Opinion
Decision date:
16/06/2016

Key facts of the case:

Reference for a preliminary ruling — Judicial cooperation in civil matters — Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility — Regulation (EC) No 2201/2003 — Article 15 — Transfer of the case to another court — Scope — Conditions for application — Court better placed — Best interests of the child

Results (sanctions) and key consequences of the case:

  1. In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Supreme Court (Ireland) as follows:

(1) Article 15 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 may be applied in respect of child protection proceedings classified as being public law proceedings under national law even though no administrative or court proceedings are yet pending in the Member State to which the court having jurisdiction as to the substance of the matter intends to transfer the case. However, that provision does not apply if the jurisdiction of the court to which it is intended to transfer the case is made conditional on the proceedings being brought by an applicant who is not a party to the proceedings before the court which would normally have jurisdiction.

(2) Article 15(1) of Regulation No 2201/2003 requires that the court having jurisdiction as to the substance of the matter establish that the court to which it intends to transfer the case is better placed than it to deliver a judgment relating to parental responsibility which better serves the best interests of the child.

To that end, the court must ensure that the judgment relating to parental responsibility will be given by the court which has the closest connections with the factors of the particular case. The examination must be carried out from the point of view of the child in order to protect his interests and the court having jurisdiction as to the substance of the matter must not carry out a comparative analysis of the substantive law that will be applied by the courts of the other Member State. However, an analysis of the applicable procedural provisions or of the practices normally followed by the courts of that other Member State may be useful. Factors such as the language of the proceedings, the availability of relevant evidence, the possibility of calling appropriate witnesses and the probability that those witnesses will appear in court, the availability of medical and social reports and the possibility of updating those reports, where appropriate, as well as the period within which the judgment will be delivered may be taken into consideration.

The location of those factors or some of them in the territory of a Member State other than that of the court which would normally have jurisdiction must not detract from the importance of the environment in which the child develops and the possible impact on his physical and moral well-being of any move connected with a transfer of the case to a court in another Member State.