Case law Brussels II Regulation (2201/2003)
Article 59 - 63 of the Brussels II Regulation
ECJ 22 December 2010 ‘Barbara Mercredi v Richard Chaffe’ (Case
C-497/10 PPU) 
1. The concept of ‘habitual residence’, for the purposes of Articles 8 and 10 of the Brussels II Regulation (No 2201/2003) must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a Member State – other than that of her habitual residence – to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother’s move to that State and, second, with particular reference to the child’s age, the mother’s geographic and family origins and the family and social connections which the mother and child have with that Member State. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances of fact specific to each individual case. If the application of the abovementioned tests were, in the case in the main proceedings, to lead to the conclusion that the child’s habitual residence cannot be established, which court has jurisdiction would have to be determined on the basis of the criterion of the child’s presence, under Article 13 of the Regulation.
2. Judgments of a court of a Member State which refuse to order the prompt return of a child under the Hague Convention of 25 October 1980 on the civil aspects of international child abduction to the jurisdiction of a court of another Member State and which concern parental responsibility for that child have no effect on judgments which have to be delivered in that other Member State in proceedings relating to parental responsibility which were brought earlier and are still pending in that other Member State.
ECJ 27 November 2007 ‘Nordic States’ (Case
C-435/06)
1. Article 1(1) of the Brussels II Regulation (No 2201/2003) is to be interpreted to the effect that a single decision ordering a child to be taken into care and placed outside his original home in a foster family is covered by the term ‘civil matters’ for the purposes of that provision, where that decision was adopted in the context of public law rules relating to child protection. The term ‘civil matters’ within the meaning of that provision, must be interpreted autonomously. Only the uniform application of the Brussels II Regulation in the Member States, which requires that the scope of that Regulation be defined by Community law and not by national law, is capable of ensuring that the objectives pursued by that regulation, one of which is equal treatment for all children concerned, are attained. According to the fifth recital of the Brussels II Regulation, that objective can only be safeguarded if all decisions on parental responsibility fall within the scope of that regulation. Parental responsibility is given a broad definition in Article 2(7) of the Regulation, inasmuch as it includes all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. It is irrelevant in that respect whether parental responsibility is affected by a protective measure taken by the State or by a decision which is taken on the initiative of the person or persons with rights of custody (see paras 46-50, 53, operative part 1).
2. The Brussels II Regulation (No 2201/2003) is to be interpreted as meaning that harmonised national legislation on the recognition and enforcement of administrative decisions on the taking into care and placement of persons, adopted in the context of Nordic Cooperation, may not be applied to a decision to take a child into care that falls within the scope of that regulation. Cooperation between the Nordic States on the recognition and enforcement of administrative decisions on the taking into care and placement of persons does not appear amongst the exceptions listed exhaustively in the Brussels II Regulation. Nor is that conclusion invalidated by Joint Declaration No 28 on Nordic Cooperation, annexed to the Treaty concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded. According to that declaration, those States which are members of Nordic Cooperation and members of the Union have undertaken to continue that cooperation in compliance with Community law. Accordingly, that cooperation must respect the principles of the Community legal order. In that regard, a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation (see paras 57, 61, 63-66, operative part 2).