PIL instrument(s)

Case number and/or case name

ITF20140723 Tribunal of Vercelli, decree (BIIa)

Details of the court

Italy, First Instance

Articles referred to by the court

Date of the judgement

22 July 2014

Appeal history

CJEU's case law cited by the court

Summary

The Rumanian court first seized of the action for divorce of the spouses could not legitimately take provisional measures in matters of parental responsibility over the couple’s child (where those measures are, as a consequence, not applicable), neither under Art. 8 of Regulation (EC) No 2201/2003 of 27 November 2003, for the child is habitually resident in Italy, nor pursuant to Art. 20 , lacking the presence of the child which is required for exercising the exorbitant jurisdiction provided for by Art. 20(1). Nor, at last, could Art. 12 of the regulation apply to the case at issue, because both the mother contested the jurisdiction of the Rumenian court in parental responsibility matters and the possibile prorogation is not in the child’s superior interest. On the contrary, Italian courts have jurisdiction to determine ex novo, also in the light of the reports made by the social services, how the father’s right of access should be exercised, without recognizing any effects to the provisional measures taken by the Rumanian court seized of divorce proceedings, as, in compliance with Regulation (EC) No 2201/2003 – whose Recital No 12 states that “the grounds of jurisdiction in matters of parental responsibility established in the present regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity” –, it is in the best interest of the child that the decision over the exercise of the right of access by the parent not entitled to custody (i.e. the father, in the case at issue) is taken by the court of the place where the child has his habitual residence, as such court is the better placed to gather (mostly with the assistance of the social services) all the elements necessary to assess the child’s needs and monitor the evolution of his personality and the relationship with the parents and to (promptly) modify the decision, if needed. Pursuant to Arts. 54 and 55 of Regulation (EC) No 2201/2003, this decree is to be communicated to the Italian Central Authority in order to improve the application of the regulation.