Child was relocated during proceeding at Spanish court

by | Nov 27, 2022

District court of Gelderland, The Netherlands – 

November 17 2022, ECLI:NL:RBGEL:2022:6434  –

What happens if a child is relocated during the proceedings?

On 17 November 2022, the Gelderland District Court gave an interesting ruling on a young child who, during the proceedings in Spain, had already moved with the mother to the Netherlands. The court ruled that despite this move, the court in Spain had jurisdiction over the minor. There was no reason for the Dutch court not to recognise the judgment of the Spanish court.

Father starts procedure in Spain

When the child was born, the parents were already separated. After father started proceedings, mother had relocated to the Netherlands with the child. In the order of 29 June 2021, the court in Spain had:

  • awarded daily care to the mother,
  • ruled that the parents had joint custody, and
  • established a visitation arrangement including that the child would spend several weeks with the father during the holidays in Spain.

The appeal court in Spain had upheld this decision on 25 March 2022.

Mother starts procedure at the Dutch court

In July 2022, the mother asked the court in the Netherlands to rule that the court in Spain did not have jurisdiction at the time of the Spanish court decision. The mother referred to the European Court of Justice’s ruling of 14 July 2022, ref. C-572-21 (CC v VO).

CC v VO

The court in the Netherlands ruled that the court in Spain did have jurisdiction when it made it’s decision. The court pointed out that this ECJ ruling was about a child moving from Sweden (a member state to the Brussels II-bis Regulation) to Russia (not a member state, i.e. a third state).

The court found that the court had not lost jurisdiction and therefore the parents had joint custody. The court does establish a different access arrangement. The father, assisted by lawyer Mr Jack Schoenmakers, now has a visitation arrangement that builds up over a period of 12 months to the visitation arrangement as determined by the Spanish court.

To understand the ruling, the following is relevant.

The ECJ ruling CC v VO states:

Article 8(1) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, read in conjunction with Article 61(a) of that regulation, must be interpreted as meaning that a court of a Member State that is hearing a dispute relating to parental responsibility does not retain jurisdiction to rule on that dispute under Article 8(1) of that regulation where the habitual residence of the child in question has been lawfully transferred, during the proceedings, to the territory of a third State that is a party to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996.

Article 8(1) of the Brussels II-bis Regulation (No 2201/2003) states:

1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.

Article 61 of the Brussels II-bis Regulation states:

Relation with the Hague Convention of 19 October 1996 on Jurisdiction, Applicable law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children

As concerns the relation with the Hague Convention of 19 October 1996 on Jurisdiction, Applicable law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, this Regulation shall apply:

(a) where the child concerned has his or her habitual residence on the territory of a Member State;

Article 8(1) applies to member states

This means that when – during the procedure – a child was relocated to another country, which is not a member state to Brussels II-bis, article 8 does not apply, and the court in the country where the child had habitual residence at the start of the procedure has lost jurisdiction. But in this case the child was relocated from a member state (Spain) to another member state (The Netherlands).

Notice:
In the current Brussels II-ter Regulation, this provision is not in Article 8(1), but in Article 7(1).