A court of an EU 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.
 
This was the judgment of the European Court of Justice in the case of Jasna Detiček v Maurizio Sgueglia, the court said in a media statement on December 23 2009.
 
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, the court said.
 
The EU regulation on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility provides that a court of a member state may, in those matters and in urgent cases, take provisional or protective measures in respect of persons or assets in that state, even if a court of another member state has jurisdiction as to the substance of the case.
 
Detiček, of Slovene nationality, and Sgueglia, of Italian nationality, a married couple in the course of divorce proceedings, lived in Italy for 25 years.
 
On July 25 2007, the competent court in Tivoli, Italy, before which they had brought divorce proceedings which also related to custody of their daughter Antonella, born in 1997, provisionally granted sole custody of Antonella to Sgueglia and ordered her to be placed provisionally in a children’s home in Rome.
 
On the same day, Detiček left Italy with her daughter to travel to Slovenia, where they are still living today, the court said.
 
By a judgment of the Slovenian court, the order of the Tribunale di Tivoli was declared enforceable in the territory of the Republic of Slovenia.
 
On the basis of that judgment, the enforcement procedure for the child’s return to her father, with placement in the children’s home, was started.
 
Subsequently, relying on a change in circumstances and on the interests of the child, the Slovenian court, on application by Detiček, granted her provisional custody of Antonella.
 
The court found that Antonella had settled into her social environment in Slovenia. Return to Italy and enforced placement in a children’s home would be contrary to her welfare, as it would cause her irreversible physical and psychological trauma.
 
In addition, during the judicial proceedings in Slovenia, Antonella had expressed the wish to remain with her mother.
 
The Višje sodišče v Mariboru (Court of Appeal, Maribor), to which Sgueglia appealed, asked the Court of Justice whether a court of the member state in whose territory the child is present can take a provisional measure giving custody of a child to one parent, where a court of another member state has already delivered a judgment provisionally granting custody of the child to the other parent, and that judgment has been declared enforceable in the first member state.
 
The European Court of Justice said that the courts of a member state in which the child is present are entitled to take the provisional or protective measures available under the law of that State only on condition that three cumulative conditions are satisfied: the measures concerned must be urgent, they must be taken in respect of persons or assets in the member state where those courts are.