(Court of Justice of the European Union, 19 November 2015)
[The judgment and accompanying headnote has now published in Family Law Reports  1 FLR 337]
Jurisdiction – BIIR – Habitual residence – Recognition of foreign order
The Court of Justice of the European Union gave a preliminary ruling on the issue of the jurisdiction of the Lithuanian court in respect of children who were now living in Sweden.
The Lithuanian mother and father had two children born in 2000 and 2009. When they divorced in 2003 the court ordered that the child should live with the mother but both parents shared rights of custody.
In 2005 the family moved to Sweden where the second child was born. Both children spoke Swedish and went to school there. In 2009 the father discovered that the mother and children had disappeared. After an investigation into alleged offences committed by the father against the mother, the father was prohibited from having contact with the children although the investigation was dropped.
In 2014 the mother took the children to Lithuania and the father brought proceedings seeking the return of the children and sole custody. The application for a return order was dismissed and that decision was upheld on appeal. In 2015 the Lithuanian district court ordered the children to reside with the mother and for the father to pay maintenance. The Swedish court considered that its jurisdiction was based upon Art 8(1) of BIIR since at the time of the proceedings both children had been habitually resident in Sweden and, therefore, the father submitted that the Lithuanian order should not be recognised.
The father conceded that pursuant to Art 24 there was a general prohibition of reviewing the jurisdiction of the court with the Member State of origin but he argued that the provision did not refer to Art 15 on which the district court had based it jurisdiction. That Article stated that a judgment on parental responsibility should not be recognised if it was manifestly contrary to the public policy of the Member State in which recognition was sought taking into account the best interests of the child.]
The Swedish court stayed the proceedings and made a reference for preliminary ruling to the Court of Justice of the European Union asking whether Art 23(a) of the Regulation should be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, that provision allowed a court of a Member State which considered that it had jurisdiction to rule on the custody of a child to refuse to recognise a judgment of a court of another Member State which had ruled on the custody of that child.
The court ruled that Article 23(a) of the Regulation should be interpreted as meaning that, in the absence of a manifest breach, having regard to the best interests of the child, of a rule of law regarded as essential in the legal order of a Member State or of a right recognised as being fundamental within that legal order, that provision did not allow a court of that Member State which considered that it had jurisdiction to rule on the custody of a child to refuse to recognise a judgment of a court of another Member State which had ruled on the custody of that child.
JUDGMENT OF THE COURT (Fourth Chamber)
19 November 2015 (*)
(Reference for a preliminary ruling — Urgent preliminary ruling procedure — Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility — Regulation (EC) No 2201/2003 — Article 23(a) — Grounds of non-recognition of judgments in matters of parental responsibility — Public policy)
In Case C 455/15 PPU,
REQUEST for a preliminary ruling under Article 267 TFEU from the Varbergs tingsrätt (District Court, Varberg, Sweden), made by decision of 25 August 2015, received at the Court on 28 August 2015, in the proceedings
THE COURT (Fourth Chamber),composed of L. Bay Larsen, President of the Third Chamber, acting as President of the Fourth Chamber, J. Malenovský, M. Safjan, A. Prechal (Rapporteur) and K. Jürimäe, Judges,Advocate General: M. Wathelet,Registrar: I. Illéssy, Administrator,
having regard to the written procedure and further to the hearing on 27 October 2015,
after considering the observations submitted on behalf of:
– P, by A. Heurlin, advokat, and M. Hellner,
– Q, by K. Gerbauskas and H. Mackevičius, advokatai,
– the Swedish Government, by A. Falk, U. Persson, C. Meyer-Seitz and L. Swedenborg, acting as Agents,
– the Spanish Government, by M. Sampol Pucurull, acting as Agent,
– the Lithuanian Government, by D. Kriaučiūnas and J. Nasutavičienė, acting as Agents,
– the European Commission, by M. Wilderspin, acting as Agent, and S. Samuelsson and M. Johansson, advokater,
after hearing the Advocate General,gives the following