Tribunal de Justicia de la Unión Europea (5.10.2010) - Reglamento Bruselas II, derechos de custodia y padres no casados

JUDGMENT OF THE COURT (Third Chamber) 5 October 2010, in Case C-400/10 PPU (McB.): Judicial cooperation in civil matters – Matrimonial matters and matters of parental responsibility – The Hague Convention of 25 October 1980 on the civil aspects of international child abduction – Regulation (EC) No 2201/2003 – Children whose parents are not married – Father’s rights of custody – Interpretation of ‘rights of custody’ – General principles of law and Charter of Fundamental Rights of the European Union.

The Facts (paragraphs 17-24):
"The applicant in the main proceedings, Mr McB., who is of Irish nationality, and the defendant in those proceedings, Ms E., who is of British nationality, lived together as an unmarried couple for more than 10 years in England, Australia, Northern Ireland and, from November 2008, Ireland. They had three children together, namely J., born in England on 21 December 2000, E., born in Northern Ireland on 20 November 2002, and J.C., born in Northern Ireland on 22 July 2007.
After the couple’s relationship deteriorated in late 2008 and early 2009, the mother, alleging aggressive behaviour on the part of the father, fled on several occasions, with her children, to a women’s refuge. In April 2009 the couple were reconciled and they decided to marry on 10 October 2009. However, on 11 July 2009 the father discovered, on returning from a work-related journey to Northern Ireland, that the mother had again left the family home with her children and was living at the women’s refuge.
On 15 July 2009 the father’s lawyers prepared, on his instructions, an application to initiate proceedings before the Irish court with jurisdiction, namely the District Court, in order to obtain rights of custody in respect of his three children. However, on 25 July 2009 the mother took a flight to England, taking with her the abovementioned three children, and her other, older, child from a previous relationship. At that date, the abovementioned application had not been served on the mother, with the result that, in accordance with Irish procedural law, the action had not been validly brought and the Irish court had therefore not been seised.
On 2 November 2009 Mr McB. brought an action before the High Court of Justice of England and Wales (Family Division) (United Kingdom) seeking the return of the children to Ireland, in accordance with the provisions of the 1980 Hague Convention and Regulation No 2201/2003. By order of 20 November 2009 that court requested that the father, pursuant to Article 15 of that convention, obtain a decision or a determination from the Irish authorities declaring that the removal of the children was wrongful within the meaning of Article 3 of that convention.
On 22 December 2009 Mr McB. brought an action before the High Court (Ireland) seeking, first, a decision or a determination declaring that the removal of his three children on 25 July 2009 had been wrongful within the meaning of Article 3 of the 1980 Hague Convention and, secondly, rights of custody.
By a judgment of 28 April 2010 the High Court dismissed the first of those claims, on the ground that the father had no rights of custody in respect of the children at the time of their removal, and consequently the removal was not wrongful within the meaning of either the 1980 Hague Convention or Regulation No 2201/2003.
The father brought an appeal against that decision before the referring court. In its reference for a preliminary ruling, that court states that on 25 July 2009 the father had no rights of custody, within the meaning of the provisions of the 1980 Hague Convention, in respect of his children. However, the referring court considers that the definition of ‘rights of custody’, for the purposes of an application to obtain the return of children from one Member State to another on the basis of the 1980 Hague Convention, is now to be found in Article 2(9) of the above regulation.
The referring court considers that neither the provisions of Regulation No 2201/2003 nor Article 7 of the Charter mean that the natural father of a child must necessarily be recognised as having rights of custody in respect of that child, for the purposes of determining whether or not the removal of the child is wrongful, in the absence of a court judgment awarding such rights to him. However, the court accepts that the interpretation of those provisions of European Union law falls within the jurisdiction of the Court of Justice."

The ruling of the ECJ: "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, must be interpreted as not precluding a Member State from providing by its law that the acquisition of rights of custody by a child’s father, where he is not married to the child’s mother, is dependent on the father’s obtaining a judgment from a national court with jurisdiction awarding such rights to him, on the basis of which the removal of the child by its mother or the retention of that child may be considered wrongful, within the meaning of Article 2(11) of that regulation."