Summary
With regard to custody rights after divorce – and in line with the doctrine of forum non conveniens which grants the seized court discretion to refer the case to another court – under Article 15 of Regulation (EC) No 2201/2003 the court of a Member State having jurisdiction as to the substance of the matter may refer the case to the court of another Member State if it considers that such court would be better placed to hear the case, if the child has a “particular connection” as in the case of a certain habitual residence, and this is in the best interests of the child. The place of the child’s habitual residence is to be construed as the place where the child is particularly integrated in the social and family environment in light of the duration, stability, conditions and reasons for the child’s presence in the territory of the Member State.
Pursuant to Article 15(1)(a), 15(1)(b), 15(3) of Regulation No 2201/2003, neither of the parties to the proceedings on the merits pending in front of a court of a Member State has legal standing to file an application directly before the court of a different Member State that it deems “better placed to hear the case” to request it assume jurisdiction. In fact it is only for the court of the Member State where the proceeding is pending, or for the court of another Member State with which the child has a particular connection, to file such an application.
Pending a proceeding brought before an English court by a father who requests exclusive custody rights of his daughter who is habitually resident in the United Kingdom and reports domestic violence perpetrated by the mother entitled to joint custody, if the court seized has proceeded with the case pending before it and it has examined the merits of the case, the mother lacks legal standing to apply for a transfer of proceeding directly to the Italian court, which she considers «better placed to hear the case» because in this State the daughter has now her new registered residence.