Type: Judgment

Authority: European Authorities: Euopean Union' Court of Justice

Date: 12/23/2009

Subject: The Court affirmed that A court of a Member State in which a child is present cannot provisionally grant custody of the child to one parent if a court of another Member State, which has jurisdiction as to the substance of the case, has already given custody to the other parent. To accept that there was a situation of urgency in such a case would run counter to the principle of mutual recognition of judgments given in the Member States and to the legislature’s aim of deterring the wrongful removal or retention of children between Member States.

Parties: Jasna Detiček

Classification:

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Notices: Effectiveness of the Charter
The Court notes that one of the fundamental rights of the child is the right, set out in the Charter of Fundamental Rights of the European Union, to maintain a personal relationship and direct contact, on a regular basis, with both parents, and respect for that right is undeniably in the best interests of any child. The Court observes that the wrongful removal of a child, following a decision taken unilaterally by one parent, will more often than not deprive the child of the possibility of maintaining a personal relationship and direct contact on a regular basis with the other parent. The Court considers that a measure which prevents the maintenance on a regular basis of a personal relationship and direct contact with both parents can be justified only by another interest of the child that is so important that it takes priority over the interest underlying that fundamental right. However, a balanced and reasonable assessment of all the interests involved, which must be based on objective considerations relating to the actual person of the child and his or her social environment, must in principle be carried out in proceedings before the court which has jurisdiction as to the substance of the case.