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
ECLI (European case law identifier)
ECLI:EU:C:2016:458
  • CJEU - C-428/15 / Opinion

    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.

  • Paragraphs referring to EU Charter
    1. That analysis is further strengthened by recital 33 of Regulation No 2201/2003. According to that recital, the regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. To that end, ‘in particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union’. However, pursuant to Article 24(2), ‘in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration’.
    1. That trust is such that it has even enabled the introduction of a specific scheme in order to facilitate enforcement of judgments on rights of access that are considered to be essential in order to protect the fundamental right of the child, laid down in Article 24(3) of the Charter of Fundamental Rights of the European Union, to maintain a relationship and direct contact with both parents.
    2. The Court has held that ‘that scheme is based on the principle of mutual trust between Member States in the fact that their respective national legal systems are capable of providing an equivalent and effective protection of fundamental rights, recognised at EU level, in particular, in the Charter of Fundamental Rights of the European Union (judgment in Aguirre Zarraga, C‑491/10 PPU, EU:C:2010:828, paragraph 70), and precludes any review of the judgment given by the court of the State of origin’. (36)