A (Opinion) French Text [2021] EUECJ C-262/21PPU_O (14 July 2021)

A (Opinion) French Text [2021] EUECJ C-262/21PPU_O (14 July 2021)

A situation in which a child and mother are transferred to another Member State pursuant to a transfer decision under Regulation (EU) No 604/2013, following an international protection request made by one parent without the other's consent, does not constitute an 'unlawful removal or retention' under Article 2(11) of Regulation (EC) No 2201/2003 unless it is established that the parent requesting protection committed a wrongful act to circumvent jurisdictional rules. The mere execution of a transfer decision under Dublin III, absent evidence of abuse or fraud, does not violate the other parent's custody rights under Brussels IIa.

Citation
[2021] EUECJ C-262/21PPU_O
Parties
Applicant: A; Respondent: B
Jurisdiction
European Union
Judgment Date
14 July 2021
Procedural Posture
Preliminary Reference (opinion of Advocate General) / Opinion Before the Court of Justice of the European Union
Outcome
Opinion: The situation described does not constitute an unlawful removal or retention under Brussels IIa, unless abuse of process is established; it is for the referring court to assess the facts.
Legal Topics
Parental Responsibility, International Child Abduction, Asylum and Immigration, Jurisdiction, Recognition and Enforcement of Judgments
European Union Law Private International Law Family Law Parental Responsibility International Child Abduction Asylum and Immigration Jurisdiction Recognition and Enforcement of Judgments

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Parties

A

Applicant

B

Respondent

Procedural Posture

Preliminary Reference (opinion of Advocate General) / Opinion Before the Court of Justice of the European Union

Legal Issues

  1. 1 Whether a transfer decision under Regulation (EU) No 604/2013 (Dublin III) constitutes an 'unlawful removal or retention' under Article 2(11) of Regulation (EC) No 2201/2003 (Brussels IIa) when a parent seeks international protection for a child without the other parent's consent.
  2. 2 Whether such a situation falls within the material scope of Brussels IIa.
  3. 3 Whether the existence of a transfer decision precludes the finding of an unlawful removal or retention.

Ratio Decidendi

A situation in which a child and mother are transferred to another Member State pursuant to a transfer decision under Regulation (EU) No 604/2013, following an international protection request made by one parent without the other's consent, does not constitute an 'unlawful removal or retention' under Article 2(11) of Regulation (EC) No 2201/2003 unless it is established that the parent requesting protection committed a wrongful act to circumvent jurisdictional rules. The mere execution of a transfer decision under Dublin III, absent evidence of abuse or fraud, does not violate the other parent's custody rights under Brussels IIa.

Court Disposition

Opinion: The situation described does not constitute an unlawful removal or retention under Brussels IIa, unless abuse of process is established; it is for the referring court to assess the facts.