SS v MCP.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:231
• Docket Number: C-603/20
• Date: 24 March 2021
• Celex Number: 62020CJ0603
• Court: Court of Justice (European Union)

JUDGMENT OF THE COURT (Fifth Chamber)

24 March 2021 ( *1 )

(Reference for a preliminary ruling – Urgent preliminary ruling procedure – Area of freedom, security and justice – Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Article 10 – Jurisdiction in matters of parental responsibility – Abduction of a child – Jurisdiction of the courts of a Member State – Territorial scope – Removal of a child to a third State – Habitual residence acquired in that third State)

In Case C‑603/20 PPU,

REQUEST for a preliminary ruling under Article 267 TFEU from the High Court of Justice (England & Wales), Family Division (United Kingdom), made by decision of 6 November 2020, received at the Court on 16 November 2020, in the proceedings

SS

v

MCP,

THE COURT (Fifth Chamber),

composed of E. Regan (Rapporteur), President of the Chamber, K. Lenaerts, President of the Court, acting as a Judge of the Fifth Chamber, M. Ilešič, C. Lycourgos and I. Jarukaitis, Judges,

Advocate General: A. Rantos,

Registrar: A. Calot Escobar,

having regard to the request of 6 November 2020 by the referring court, received at the Court on 16 November 2020, that the reference for a preliminary ruling be dealt with under the urgent procedure, in accordance with Article 107 of the Court’s Rules of Procedure,

having regard to the decision of 2 December 2020 of the Fifth Chamber granting that request,

having regard to the written procedure and further to the hearing on 4 February 2021,

after considering the observations submitted on behalf of:

– SS, by A. Tayo, Barrister, instructed by J. Dsouza, Solicitor,

– MCP, by A. Metzer QC and C. Proudman, Barrister, instructed by H. Choudhery, Solicitor,

– the European Commission, by M. Wilderspin, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 23 February 2021,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 10 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 (OJ 2000 L 338, p. 1), as amended by Council Regulation (EC) No 2116/2004 of 2 December 2004 (OJ 2004 L 367, p. 1) (‘Regulation No 2201/2003’).

2 The request has been made in proceedings between SS, the father of a young child, P, and MCP, the mother of that child, concerning an action brought by the father seeking an order for the return of the child to the United Kingdom and a ruling on access rights.

Legal context

International law

The 1980 Hague Convention

3 The Convention on the Civil Aspects of International Child Abduction, signed on 25 October 1980 in the framework of the Hague Conference on Private International Law (‘the 1980 Hague Convention’), entered into force on 1 December 1983. All the Member States of the European Union are contracting parties to that convention.

4 The 1980 Hague Convention contains various provisions intended to ensure the prompt return of a child who is wrongfully removed or retained.

5 Article 16 of the 1980 Hague Convention provides that, after receiving notice of a wrongful removal or retention of a child, within the meaning of Article 3 of that convention, the judicial or administrative authorities of the contracting State to which the child has been removed or in which it has been retained are not to decide on the merits of rights of custody until it has been determined that the child is not to be returned under that convention or unless an application under that convention is not lodged within a reasonable time following receipt of the notice.

The 1996 Hague Convention

6 The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at the Hague on 19 October 1996 (‘the 1996 Hague Convention’), has been ratified or acceded to by all the Member States of the European Union.

7 That convention lays down rules intended to improve the protection of children in international situations and to avoid conflicts between the legal systems of the signatory States in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children.

8 As regards child abductions, Article 7(1)(a) and (b) of that convention provide: ‘1 In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and: (a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or (b) the child has resided in that other State for a period of at least one year after the person, institution or any other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.’

9 Article 52(2) and (3) of the 1996 Hague Convention read as follows: ‘2. This Convention does not affect the possibility for one or more Contracting States to conclude agreements which contain, in respect of children habitually resident in any of the States Parties to such agreements, provisions on matters governed by this Convention. 3. Agreements to be concluded by one or more Contracting States on matters within the scope of this Convention do not affect, in the relationship of such States with other Contracting States, the application of the provisions of this Convention.’

European Union law

10 Recitals 12 and 33 of Regulation No 2201/2003 state: ‘(12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility. … (33) This Regulation recognises the fundamental rights and observes the principles of the Charter of Fundamental Rights of the European Union. 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’.

11 Article 1(1) and (2) of that regulation, that article being headed ‘Scope’, are worded as follows: ‘1. This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to: … (b) the attribution, exercise, delegation, restriction or termination of parental responsibility. 2. The matters referred to in paragraph 1(b) may, in particular, deal with: (a) rights of custody and rights of access; …’

12 Article 2 of that Regulation, headed ‘Definitions’, provides: ‘For the purposes of this Regulation: … 7. the term “parental responsibility” shall mean all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term shall include rights of custody and rights of access; … 11. the term “wrongful removal or retention” shall mean a child’s removal or retention where: (a) it is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention; and (b) provided that, at the time of removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Custody shall be considered to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child's place of residence without the consent of another holder of parental responsibility.’

13 Within Chapter II of that regulation, entitled ‘Jurisdiction’, in Section 2 thereof entitled ‘Parental responsibility’, Article 8(1), that article being headed ‘General jurisdiction’, provides: ‘1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised. 2. Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12.’

14 Article 10 of Regulation No 2201/2003, headed ‘Jurisdiction in cases of child abduction’ provides: ‘In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and: (a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or (b) the child has resided in that other Member State for a period of...