Referring court and Member State
Finland, Second Instance, Korkein hallinto-oikeus
Summary
The proceedings concerned three children who had lived with their mother and step-father. The family lived in Finland where, following violence at the hands of the step-father, two of the children were taken into care by a local authority. The children were, however, later returned to the care of their mother and step-father and the family then moved to Sweden where they stayed for three and half years. Over the summer, they travelled to Finland on vacation, living a peripatetic lifestyle in campsites. The children did not attend school. The family applied for social housing in Finland. The mother and the step-father then travelled to Sweden leaving the children in the care of the step-father’s sister. The Finnish authorities decided to take the children into care, on the grounds that they had been abandoned. This decision was confirmed by the court which noted that the children’s previous living conditions seriously endangered their welfare. The mother appealed to the Supreme Administrative Court, arguing that the Finnish authorities lacked competence in the case as the children were permanently resident in Sweden, whose courts therefore had jurisdiction. The Supreme Administrative Court stayed the proceedings and sought a preliminary ruling on the applicability of Brussels IIa to public law proceedings; the operation of Art 20 (i.e. protective measures); and the interpretation of habitual residence. The CJEU held, confirming its judgment in Case C-435/06 C, that an order that a child be immediately taken into care and placed outside his original home, which was adopted in the context of public law rules relating to child protection, was covered by the term ‘civil matters’ in Art 1(1) of the Regulation. The concept of habitual residence in Art 8(1) must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. It is for the national court to establish the habitual residence of the child, taking into account all the circumstances specific to each individual case. The following factors in particular have to be taken into consideration: the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State. Regarding the interpretation of Art 20, the Court held that a protective measure (including taking a child into care) may be taken by a national court if the measure is urgent and provisional and is taken in respect of persons in the Member State concerned. There is no obligation for the national court that has taken the provisional measure to transfer the case to the court of another Member State which has jurisdiction but, as far as required by the child’s best interests, it should inform that court. Finally, where the court of a Member State has no jurisdiction over the substance of the matter and does not consider any provisional measures under Art 20 to be necessary, it must declare so on its own motion and inform the court of another Member State which has jurisdiction. The court with no jurisdiction is not required to transfer the case to another court.