The court held EU member states do not retain an indefinite right to adjudicate custody cases if a child is taken outside the bloc illegally.
LUXEMBOURG (CN) — A father living in the United Kingdom cannot pursue custody of his daughter living in India because European Union custody law doesn’t extend to third-party states, the EU’s high court ruled Wednesday.
The European Court of Justice determined that the so-called Brussels II agreement, the EU regulation on parental rights and responsibilities, was not intended to address custody disputes outside of member states. The court said parents need to rely on other international treaties to adjudicate these situations.
“It is apparent from the legislative history of [Brussels II] that the EU legislature wanted to establish strict rules with respect to child abductions within the European Union, but that it did not intend those rules to apply to child abductions to a third state,” the Fifth Chamber’s ruling states.
The High Court of Justice for England and Wales referred the matter to the Luxembourg-based Court of Justice last November, making the case one of the last U.K.-based matters the EU court will consider. The U.K. formally left the political and economic union on Dec. 31, 2020. For disputes that occurred while the U.K. was still subject to EU law, the Court of Justice will retain jurisdiction.
The 3½-year-old girl at the center of the case, identified in court documents only as P, has British citizenship but has been living in India with her maternal grandmother since 2019. According to her mother, identified as MCP, the pair fled to India to escape abuse by P’s father, referred to as SS. Both parents are Indian nationals living in the U.K.
MCP has since returned to the United Kingdom for work. In 2019 she asked the Family Court at Chelmsford for an order “to change jurisdiction of the child.” P’s father, who is now married and raising another child, brought the underlying custody action before the High Court of Justice for England and Wales in August 2020.
Under Brussels II, the member state where the child “habitually resides” has jurisdiction in custody-dispute cases. But, according to the British court, “the child was habitually resident in India and was fully integrated into an Indian social and family environment, her concrete factual connections with the United Kingdom being non-existent, apart from citizenship.”
The Court of Justice held Wednesday that the U.K. should not have jurisdiction over the custody dispute under EU law.
“If the jurisdiction of the courts of the member state of origin were to be retained unconditionally and indefinitely, …that retention of jurisdiction would prevent the court regarded as best placed to assess the measures to be adopted in the best interests of the child from being able to hear applications,” the five-judge panel wrote.
Instead, the court pointed to other legal avenues for addressing the situation, including the 1996 Hague Convention. While the United Kingdom is a party to treaty, which protects the rights of children and covers international parental child abduction, India is not.
“The court of the member state concerned will have to establish its jurisdiction on the basis of any bilateral or multilateral international conventions that may be applicable, or, in the absence of such an international convention, on the basis of the rules of its national law,” the ruling states.
Wednesday’s decision contradicts an advisory opinion from the court’s Advocate General Athanasios Rantos last month. He held that if a child is taken outside the EU illegally, member states retain an indefinite right to adjudicate custody cases, regardless of where the child is living. Magistrate opinions are nonbinding, though final decisions often follow their legal reasoning.
The case now returns to the British court to make a final ruling in the case.