Resolution of 2 June 2022, Case No 24 Cdo 2715/2021 –⁠⁠⁠⁠⁠⁠ Wrongful removal and retention

Resolution of the Supreme Court of 2 June 2022, Case No 24 Cdo 2715/2021

(Jurisdiction under the Brussels II bis Regulation; Hague Abduction Convention; wrongful removal and retention)

The present case concerned questions of jurisdiction between Member States in matters of parental responsibility relating to the wrongful retention of children over the age of 16.

In the summer of 2020, the 17-year-old A. voluntarily decided to stay with her father in the Czech Republic rather than return to her mother in France. That was in contravention of the custodial order imposed by a French court in 2011. At first instance, A.'s father requested to be substituted as her custodial parent. A. was a dual citizen of France and the Czech Republic and enrolled herself in a bilingual grammar school in Prague. She also registered herself with the French embassy as a French citizen living permanently in the Czech Republic. Nevertheless, the first instance court ruled that A.'s habitual residence was in France. Consequently, the court found it lacked jurisdiction under Article 8 of the Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (hereinafter "Brussels II bis Regulation"). The father's subsequent appeal to the Municipal Court in Prague was successful. The Municipal Court put greater emphasis on A.'s age, who was held old enough to make decisions about her life, as well as on the steps she has taken after moving to the Czech Republic. It ruled that her "habitual residence" pursuant to Article 8 of the Brussels II bis Regulation was in the Czech Republic and consequently, that Czech courts had jurisdiction to try this case. The mother field an extraordinary appeal to the Supreme Court.

Brussels II bis Regulation offers two potential sources of jurisdiction: in Article 8, on which the lower courts relied, and in Article 10, which specifically concerns cases of wrongful removal and retention of children. While Article 8(1) confers broad jurisdiction derived from the child's current habitual residence, Article 8(2) subjects it to the ensuing three articles, including Article 10. When Article 10 applies, it is the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention that retain their jurisdiction until the child has acquired a habitual residence in another Member State. Since A.'s staying with her father was in breach of lawfully acquired custody with legal effect under French law, it constituted wrongful retention, and prima facie triggered Article 10. Since neither of the exceptions in Article 10(a) or 10(b) were met, the applicant mother argued that French courts should retain sole jurisdiction over the case. Crucially, the applicant argued that Article 10 operates independently of the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter the "Hague Abduction Convention"). The Hague Abduction Convention, which also deals with wrongful removal and retention, only applies to children under the age of 16 and A. was 17 at the time of the proceedings. The applicant noted that under Article 60(e) of the Brussels II bis Regulation, the Regulation takes precedence over the Hague Abduction Convention.

The jurisdictional issue before the Supreme Court of the Czech Republic therefore turned on the relationship between the Brussels II bis Regulation and the Hague Abduction Convention. Since there is no judicial remedy under national law against the decisions of the Supreme Court of the Czech Republic, it first considered whether it must submit the issue over Articles 10 and 11 of the Brussels II bis Regulation to the jurisdiction of the Court of Justice of the European Union (hereinafter "CJEU"), directed by Article 267 of the Treaty on the Functioning of the European Union. The Supreme Court took note of the three exceptions to the duty imposed by Article 267 found in the judgment of the Court of Justice of the European Union of 6 October 1982, Srl CILFIT, C-283/81. It was found that the issue at hand was neither irrelevant nor was it possible to deduce an answer by reference to existing CJEU jurisprudence (acte éclairé). It did find that the case was so obvious as to leave no scope for any reasonable doubt as to the manner in which the question was resolved (acte clair), releasing the need to submit the case to the CJEU.

The Supreme Court held that while Article 60 of the Brussels II bis Regulation does assert primacy of that Regulation over the Hague Abduction Convention, paragraph 17 of the Preamble to Brussels II bis Regulation confirms that the Hague Abduction Convention will continue to apply in cases of wrongful removal or retention of a child. The Hague Abduction Convention is not superseded by the Brussels II bis Regulation – as the applicant argued – but supplemented and modified for cases specifically within the EU framework. The Supreme Court found that Article 10 of the Brussels II bis Regulation did not create an independent cause of action for returning wrongfully removed or retained children. Its legal effect is derived from the Hague Abduction Convention, which itself does not apply to children over the age of 16. The Supreme Court took an approving note of the Austrian Supreme Court which reached the same conclusion as to the relation between the Regulation and the Hague Abduction Convention (Resolution of 18 September 2009, 6 Ob 181/09z). Therefore, jurisdiction in matters of parental responsibility in relation to a child over the age of 16 who was wrongfully removed of retained by one of the parents on the territory of a Member State is determined pursuant to Article 8(1) of the Brussels II bis Regulation. 

The Supreme Court then turned to the facts of the extraordinary appeal itself. Having found that Article 10 of the Brussels II bis Regulation applies only to children under the age of 16, jurisdiction was decided based on Article 8's criterion of habitual residence at the time the court is seised. The Supreme Court took a wider view of what constitutes habitual residence in line with CJEU jurisprudence. Habitual residence for the purposes of Article 8(1) of the Brussels II bis Regulation is concerned with where the centre of a child's life is. That takes into account factors that indicate the child's residence is not of a temporary or incidental nature. Like the Municipal Court in Prague, the Supreme Court took note of A.'s capacity to make decisions about her life, her family ties to the Czech Republic and the fact that she was enrolled in school to hold that her habitual residence was in Prague. Czech courts therefore had jurisdiction to try her case. The extraordinary appeal was dismissed, and the Municipal Court's decision confirmed.