EUPillar C-403/09 PPU Jasna Detiček v Maurizio Sgueglia (Third Chamber) [2009] ECR I-12193

Summary

A Slovenian mother, an Italian father and their child were resident in Italy. Following the separation of the parents, the father was granted provisional custody by an Italian court but the child was ordered to be placed in care. On the same day, the mother took the child to Slovenia. The Italian custody order was declared enforceable in Slovenia and the father brought enforcement proceedings with the aim of securing the return of the child to Italy. In the meantime, the mother applied in Slovenia for a provisional and protective measure giving her custody of the child pursuant to Art 20 of the Regulation. This was granted in the form of provisional custody of the child, on the grounds that the child was settled, that she wished to remain with the mother and that a return to Italy with enforced placement in a children’s home would be contrary to her welfare. The father appealed. The Court of Appeal referred two questions to the CJEU. It dealt with the two questions together, as essentially asking whether Article 20 must be interpreted as allowing a court of a Member State to take a provisional measure in matters of parental responsibility granting custody of a child who is in the territory of that Member State to one parent, where a court of another Member State, which has jurisdiction under Brussels IIa as to the substance of the dispute relating to custody of the child, has already delivered a judgment provisionally giving custody of the child to the other parent, and that judgment has been declared enforceable in the territory of the former Member State. The CJEU reiterated the three conditions for the application of Art 20, i.e. that the measures in question must be urgent, relate to persons or assets in the Member State seised, and be provisional in nature. The concept of urgency relates to the situation of the child and the impossibility in practice of bringing the parental responsibility application before the court with jurisdiction as to the substance. To acknowledge that a situation of urgency for the purposes of Art 20 could arise from a change in circumstances resulting from a child's integration into a new environment, then any delay in the enforcement procedure in the requested Member State would contribute to creating the circumstances that would allow the court of the requested State to block the enforcement of the judgment that had been declared enforceable. Such an interpretation would go against the principle of mutual recognition. In addition, as the circumstances in the present case resulted from an abduction, the Regulation's aim of deterring wrongful removals and retentions would also be undermined. The Court also referred to the geographical element of Art 20 (i.e. the requirement that the provisional measures must relate to persons or assets in the Member State seised). A provisional measure ordering a change of custody of a child is a measure taken not only in respect of the child, but also in respect of the left-behind parent (in this case the father who was not present in Slovenia). Finally, the Court highlighted Art 24(3) of the Charter of Fundamental Rights of the European Union, on a child's right to maintain on a regular basis a personal relationship and direct contact with both parents, and held that Article 20 could not be interpreted in a manner which disregarded that right. The Court concluded that Art 20(1) did not allow, in the circumstances such as these, a court of an EU Member State to take a provisional measure in matters of parental responsibility, granting custody of a child who was in the territory of that Member State to one parent, where a court of another Member State, which had jurisdiction under the Regulation as to the substance of the dispute relating to the custody of the child, had already delivered a judgment provisionally giving custody of the child to the other parent, and that judgment had been declared enforceable in the territory of the former Member State.