Emergency jurisdiction – Provisional measures under Article 20
Article 20(1) – In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter.
- Article 20 enables a court to take provisional, protective measures where a child in the territory is at risk but there is no jurisdictional ground available under the Regulation for the court to take action.
- The use of Article 20(1) is tightly controlled; it cannot be permitted to undermine the normal use of the jurisdictional grounds under the Regulation.
- It accounts for the situation where a child is present on the territory and is at risk but the court would not otherwise have jurisdiction e.g. because the child is habitually resident in another Member State.
In Case C-523/07 A [2009] E.C.R. I-02805 the children and the parents were of Swedish nationality but had moved to Finland where they were travelling from place to place, with no fixed abode or schooling for the children. The Finnish authorities took the children into temporary care.
- Could the Finnish court act to take the children into care if they were still habitually resident in Sweden? (i.e. Swedish court would have jurisdiction under Article 8).
- Was the action taken by the Finnish court ‘provisional’ and ‘protective’ in nature?
Case C-523/07 A [2009] E.C.R. I-02805 European Court of Justice, para 47:
- It follows from the very wording of Article 20(1) that the adoption of measures in matters of parental responsibility by courts of Member States which do not have jurisdiction as to the substance of the matter is subject to three cumulative conditions, namely: the measures concerned must be urgent; they must be taken in respect of persons or assets in the Member State where the court seised of the dispute is situated, and they must be provisional.’
- The child must be in a situation that will endanger their welfare justifying taking immediate action to protect the child. The form of the protective measure adopted is decided by national family law, but it must be provisional, in the sense that the measure must not permanently resolve the future of the child.
o If the children were habitually resident in Finland, the Finnish court could take substantive measures to protect the children in Finland.
o If the children were habitually resident in Sweden, the Finnish court could take provisional protective measures to protect the children until the Swedish court was seised. Taking the children into temporary care would be a ‘provisional, protective measure’.
o If the children were habitually resident in Sweden, the Finnish court could take provisional protective measures to protect the children until the Swedish court was seised. Taking the children into temporary care would be a ‘provisional, protective measure’.