EU Court rules on cross-border custody of children

By Leo Gasteen

The European Court of Justice (ECJ) ruled that a court of a Member State in which a child resides cannot provisionally grant custody of the child to one parent if a court of another Member State, which has jurisdiction as to the substance of the case, has already given custody to the other parent.

The judgement comes after the Višje sodišce v Mariboru (Court of Appeal, Maribor, Slovenia) asked the ECJ whether a court of the Member State in whose territory the child is present can take a provisional measure giving custody of a child to one parent, where a court of another Member State has already delivered a judgment provisionally granting custody of the child to the other parent, and that judgment has been declared enforceable in the former Member State.

On one hand the ECJ acknowledged that the courts of a Member State in which the child is present are entitled to take the provisional or protective measures available under the law of that State only on condition that three cumulative conditions are satisfied.

1. The measures concerned must be urgent,
2. They must be taken in respect of persons or assets in the Member State  where those courts are situated,
3. They must be provisional. 

On the other hand, however, the ECJ acknowledged that there is a situation of urgency in a case (such as the present one) that would run counter to the principle of mutual recognition of judgments given in the Member States, a principle which is itself based on the principle of mutual trust between Member States.

If a change of circumstances resulting from a gradual process, such as the child’s integration into a new environment, were enough to entitle a court not having jurisdiction, any delay in the enforcement procedure in the requested Member State would contribute to creating the conditions that would allow the former court to block the enforcement of the judgment that had been declared enforceable. The ECJ decided such an interpretation would undermine the very principles on which the regulation is based.

The source of the request lies within complex family law case of Jasna Deticek v Maurizio Sgueglia. Ms Deticek, of Slovene nationality, and Mr Sgueglia, of Italian nationality, a married couple in the course of divorce proceedings, lived in Italy for 25 years. On 25 July 2007 the competent court in Tivoli (Italy)  provisionally granted sole custody of Antonella to Mr Sgueglia and ordered her to be placed provisionally in a children’s home in Rome. On the same day Ms Deticek left Italy with her daughter to travel to Slovenia, where they are still living today.

By a judgment of the Slovenian court, the order of the Tribunale di Tivoli was declared enforceable in the territory of the Republic of Slovenia. On the basis of that judgment, the enforcement procedure for the child’s return to her father, with placement in the children’s home, was started.

Subsequently, relying on a change in circumstances and on the interests of the child, the Slovenian court, on application by Ms Deticek, granted her provisional custody of Antonella. The court found that Antonella had settled into her social environment in Slovenia. Return to Italy and enforced placement in a children’s home would be contrary to her welfare, as it would cause her irreversible physical and psychological trauma. In addition, during the judicial proceedings in Slovenia, Antonella had expressed the wish to remain with her mother.

The Višje sodišce v Mariboru (Court of Appeal, Maribor), to which Mr Sgueglia then appealed, asked the ECJ whether a court of the Member State in whose territory the child is present can take a provisional measure giving custody of a child to one parent, where a court of another Member State has already delivered a judgment provisionally granting custody of the child to the other parent, and that judgment has been declared enforceable in the former Member State.

The ECJ concluded that the law of the Union does not allow a court of a Member State to take a provisional measure in matters of parental responsibility granting custody of a child who is in the territory of that Member State to one parent, where a court of another Member State, which has jurisdiction as to the substance of the dispute relating to custody of the child, has already delivered a judgment provisionally giving custody of the child to the other parent, and that judgment has been declared enforceable in the former Member State.

European Court of Justice – Justice and Application – Full text