Jurisdiction of Courts in Parental Responsibility

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Parental Responsibility in the Context of International Law

Under EU law, parental responsibility includes all rights and duties relating to the person or the property of a child, granted by operation of law, by court decision, or by a legally binding agreement. This includes key aspects such as child custody and visitation rights.

Jurisdiction and the Child’s Habitual Residence

Parental responsibility matters frequently arise in divorce proceedings. However, if the child resides in a different country from where the divorce is filed, the question arises: which court has the authority to decide issues concerning the child?

According to EU law, jurisdiction is not automatically conferred on the court handling the divorce case. Instead, the child’s habitual residence becomes the decisive factor in determining jurisdiction.

CJEU Case Law: Clarifying Jurisdiction

This principle was confirmed by the Court of Justice of the European Union (CJEU) in its Order of 16 January 2018 (Case C-604/17). The Court interpreted Council Regulation (EC) No 2201/2003 (Brussels IIa), now replaced by Council Regulation (EU) 2019/1111 (Brussels IIb), which maintains similar rules on jurisdiction.

The CJEU ruled:

A court competent to hear a divorce case does not have jurisdiction over parental responsibility matters if the child has habitual residence in another EU Member State.

Instead, the competent court is that of the Member State where the child habitually resides at the time the case is brought.

Exceptions: Choice of Court by Agreement

Despite the general rule, EU regulations allow for exceptions. Of particular relevance is the possibility for the parents to agree on the competent court:

  • Before proceedings begin, parents may jointly choose a competent court.

  • During proceedings, jurisdiction may also be accepted explicitly or implicitly by both parties.

This flexibility can be especially important in family law, where ensuring the best interests of the child is the primary concern.

Summary: Key Rules on Jurisdiction in EU Family Law

  • The habitual residence of the child determines court jurisdiction.

  • Parental responsibility includes custody and visitation rights.

  • Parents can agree to confer jurisdiction on a different court.

  • The same court may handle maintenance claims, if they are secondary.