Summary
No infringement of Arts. 10 and 11 of Regulation (EC) No 2201/2003 of 27 Novemebr 2003 occurred in relation to the fact that the Italian court seised by the father for the decision on parental responsibility over his daughter – habitually resident in Italy before her mother took her in Poland without his consent, completely preventing him from seeing her – took no decision on the return on the child, as the competence over return issues in cases of child abduction involving EU member States lies, pursuant to Arts. 9, 10 and 11 of the 1980 Hague Convention on the civil aspects of international child abduction, with the central authority of the State where the child is, after the wrongful removal. The rules set by Regulation (EC) No 2201/2003 do not derogate from that system but rather introduces further provisions which, for the benefit of the child, allow the courts of the member State where the child was habitually resident immediately before the wrongful removal or retention to retain (within a definite period) their jurisdiction in parental responsiblity matters until the child has acquired a new habitual residence in another member State. In mantaining two different set of rules for determining jurisdiction the EU aimed at ensuring that the decision on the return is taken by the court of the place where the child is located, on the basis of the criterion of proximity and the possibility to hear him/her, at the same time preventing a wrongful act – the illicit removal of the child – from affecting the jurisdiction in parental responsibility matters of the court of the habitual residence of the child before the abduction.
In the case at issue, the Polish courts were competent and gave a negative decision on the return of the child, while Italian courts retained their jurisdiction in parental responsibility matters over her, giving a decision which do not entail her return in Italy. Hence, since Poland has become the new residence of the child, Polish courts shall have jurisdiction to hear future claims in matters of parental responsibility over her.
As to the return of the child in Italy, it is correct, pursuant to Art. 13 of the 1980 Hague convention, not to order her return if she has become acquainted with the new environment and the father has proven inadequate.