EUPillar C-656/13 L v M (Third Chamber)

Summary

Two children, born in the Czech Republic to unmarried parents, lived there until the mother started working in Austria. Thereafter the children lived with their mother in Austria and with their father in the Czech Republic. In 2012 the mother registered the children as permanent residents in Austria and informed the father that they would not return to the Czech Republic. The father then applied to a Czech district court for custody and maintenance in respect of the children. Following a period of contact, the father failed to return the children to the mother. This prompted the mother to make an application for custody and maintenance to both Czech and Austrian courts. The Czech district court issued a provisional measure on the basis of which the children were returned to their mother in Austria. This provisional measure was confirmed by the relevant Czech regional court. Later the Czech district court terminated the proceedings on the grounds that it lacked jurisdiction as the children were resident in Austria and therefore the Austrian courts had jurisdiction under Article 8(1) of Brussels IIa. This order was, however, set aside by a decision of the regional court which found that jurisdiction was established pursuant to Art 12(3) of Brussels IIa as the children had a substantial connection with the jurisdiction, both parents and the children’s guardian had accepted the international jurisdiction of the Czech courts and it was in the best interests of the children. The mother appealed arguing that she had not accepted the international jurisdiction of the Czech courts as she clearly stated at the first available opportunity to defend herself that she did not accept the international jurisdiction of the Czech courts. The Supreme Court of the Czech Republic referred the following questions to the CJEU: 1. Must Art 12(3) of the Brussels IIa Regulation be interpreted as establishing jurisdiction over proceedings concerning parental responsibility even where no other related proceedings (that is, ‘proceedings other than those referred to in paragraph 1’) are pending? 2. In the event of an affirmative answer to Question 1: must Art 12(3) be interpreted as meaning that “acceptance expressly or otherwise in an unequivocal manner” includes also the situation in which the party who has not initiated proceedings makes a separate application for the initiation of proceedings in the same case but immediately on doing the first act required of him objects that the court lacks jurisdiction in the proceedings previously started on the application by the other party? The first question was answered in the affirmative. Art 12(3) must be interpreted as allowing, for the purposes of proceedings in matters of parental responsibility, the jurisdiction of a court of a Member State which is not that of the child’s habitual residence to be established even where no other proceedings are pending before the court chosen. Any other interpretation would infringe the effectiveness of the provision. Indeed, to limit the possibility of utilising Art 12(3) to cases in which the proceedings in matters of parental responsibility were related to other proceedings would exclude the possibility of having recourse to prorogation under Art 12(3) in numerous cases, including situations where the prorogation of jurisdiction might be in the best interests of the child concerned. In answer to the second question, Art 12(3)(b) must be interpreted as meaning that it cannot be considered that the jurisdiction of the court seised by one party of proceedings in matters of parental responsibility had been ‘accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings’ within the meaning of that provision where the defendant in those first proceedings subsequently brings a second set of proceedings before the same court and, on taking the first step required of him in the first proceedings, pleads the lack of jurisdiction of that court.