Referring court and Member State
Sweden, First Instance, Varbergs tingsrätt
Summary
The case involved two children born in 2000 and 2009 to Lithuanian parents. In 2003, the parents divorced and the court ordered that the first child should reside with the mother, although custody was shared by both parents. In 2005 the family relocated to Sweden where the second child was born. In 2013, the mother took the children and asserted that the father had committed offences against her and the children. Although the investigation into these allegations was later dropped, the father was prohibited from having contact with the children. In 2014 the mother took the children to Lithuania. The father initiated proceedings for sole custody of both children before a Swedish court. Thereafter, he brought proceedings in Lithuania seeking the return of the children to Sweden but his application was refused and that decision was upheld on appeal. At a hearing before the Swedish court, which the mother did not attend, the father was granted an interim order for sole custody of the younger child. Subsequently, the Lithuanian district court ordered that the younger child should reside with the mother and that the father should pay maintenance. The Swedish court considered that its jurisdiction was based upon Art 8(1) since at the time of the institution of the proceedings both children had been habitually resident in Sweden. The father submitted that the Lithuanian order should not be recognised on the grounds of public policy. The referring Swedish court asked the CJEU whether Art 23(a), notwithstanding Art 24, allowed it to refuse to recognise a judgment of a court of another MS which had ruled on the custody of that child. The CJEU recalled that Recital 21 required that the grounds for non-recognition be kept to a minimum. Accordingly, Art 23 had to be interpreted strictly. The CJEU therefore held that Article 23(a) should be interpreted as meaning that, in the absence of a manifest breach, having regard to the best interests of the child, of a rule of law regarded as essential in the legal order of a MS or of a right recognised as being fundamental within that legal order, that provision did not allow a court of that MS which considered that it had jurisdiction to rule on the custody of a child to refuse to recognise a judgment of a court of another MS which has ruled on the custody of that child. In other words, the public policy of the MS where recognition is sought cannot be raised as an obstacle to the recognition or enforcement of a judgment given in another MS solely on the ground that the MS of origin failed to comply with the rules on jurisdiction contained in Brussels IIa. This is because Art 24 of Brussels IIa prohibits the review of the jurisdiction of the court of origin, even if that court relied erroneously on Art 15 (not specifically treated as a non-reviewable ground under Art 24 but deemed by the CJEU to be so), the transfer ground, as the basis of jurisdiction. The CJEU went further in telling the national court that it could not use Art 23(a), despite saying that “it is not for the Court to define the content of the public policy of a Member State”, in this case because “even if a difficulty concerning the wrongful retention [query was this not a wrongful removal case?] of a child were to arise in the case in the main proceedings, that difficulty would have to be resolved not by a refusal of recognition on the basis of Article 23(a) of Regulation No 2201/2003 of a judgment such as that of the [Lithuanian Court] … but, if necessary, by recourse to the procedure laid down in Article 11 of that regulation.” The logic of this finding is that if the left-behind parent wants custody of their child they have to seek a return order under Art 11(8) Brussels IIa even if they just want a joint custody order where the child spends most of the time with the abducting parent in the country where the child was abducted to.