Now, we turn our eyes to the European continent and a judgment of the European Court of Justice ("ECJ"). For the Yanks reading this post, I will save you the treatise I would have to right about the ECJ and instead refer you to the one already written--Craig and DeBurca's EU Law.
The case of C-403/09 PPU deals with EC Regulation 2201/2003, which is the jurisdictional statute for matrimonial matters between EU Member States. For American lawyers, think of it as the UCCJEA for the EU (then again, don't--any comparison to US law in the EU context generally misleads and confuses). At issue, primarily, was the question:
Does a court of the Republic of Slovenia (a Member State of the European [Union]) have jurisdiction under Article 20 of [Regulation No 2201/2003] to take protective measures in a situation in which a court of another Member State, having by virtue of that regulation jurisdiction as to the substance, has already taken a protective measure declared enforceable in the Republic of Slovenia?
To answer this question, the ECJ examined the Regulation, the Hague Convention, and the national laws of Slovenia. The short answer, was "no." A summary of the long answer follows.
Let's start with the law--because that is what the ECJ did. The preamble of 2201/2003 identifies that one purpose of the Regulation is to protect the best interests of the child by determining jurisdiction primarily through proximity--that is, habitual residence. Though courts can act provisionally or protectively, the Regulation only allows so "in urgent cases." Courts should recognize and enforce other courts' judgments based on mutual trust and also respect the Charter of Fundamental Rights of the European Union in these matters. Those are the important points from the Regulation's preamble for this case.
Onto the Articles. Article 2, among many other points, basically traces the language of the Hague Abduction Convention definition of "wrongful removal," stating a removal is wrongful when it is "in breach of rights of custody":
provided that, at the time of removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
Further, the Reguation clears up the ne exeat issue by stating that:
Custody shall be considered to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child’s place of residence without the consent of another holder of parental responsibility.
Article 8(1) states that jurisdiction exists in the child's habitual residence.
Article 20 deals with provisional and protective orders. Essentially, it states that the orders of one State will be recognized in another and any party can apply to not have the an order recognized.
Then, The ECJ quoted from the Hague Abduction Convention, namely Articles 12 and 13 to describe the exceptions to returns--namely, the issue of "settlement" after the one-year time limit for filing a petition and the Article 13 exceptions for un-exercised custody rights and "grave risk of harm."
Then, the ECJ dug into the Slovenian laws. Article 272(1) allows for provisional measures, but the applicant "must credibly demonstrate … that the measure is necessary in order to prevent the use of force or the causing of damage difficult to indemnify." Article 267 basically states that provisional measures can come at any time before, during, and after the case "so long as enforcement has not been effected." 278(2) says the court should stay or stop such provisional measures when they become unnecessary. Finally, Section 103(5) says the court should grant custody to one or none of the parents if the parents cannot agree on custody.
Then the ECJ laid out the facts. The parties had been married and lived in Italy for 25 years. Daughter was born in 1997. In 2007, an Italian court granted Father custody but placed Daughter in a children's home in Italy. However, on the day of that order, Mother took daughter to Slovenia.
About four months later, a Slovenian court ordered the Italian court decision enforceable in Slovenia. The Slovenian Supreme Court confirmed the decision. In 2009,enforcement proceedings began, but another Slovenian court stayed these proceedings. Then, Mother applied for a provisional and protective order from the Slovenian court.
The court granted her application. The court rationalized its decision based on 2201/2003 and the Hague Abduction Convention--for the best interests of the child and change of circumstances. The court found that the child had become accustomed to Slovenia and she expressed the wish to stay with her mother. The father challenged this decision on appeal and the Slovene court of appeals and referred to the ECJ.
The ECJ began its analysis by pointing to two settled principles of Community law interpretation in ECJ case-law. First, when interpreting Community law, courts must look to:
not only its wording and context but also the objectives pursued by the rules of which it forms part (see, to that effect, inter alia, Case C‑301/98 KVS International  ECR I‑3583, paragraph 21; Case C‑300/05 ZVK  ECR I‑11169, paragraph 15; and Case C‑301/08 Bogiatzki, married name Ventouras  ECR I‑0000, paragraph 39).
Member States must not only interpret their national law in a manner consistent with Community law but also make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with the fundamental rights protected by the Community legal order or with the other general principles of Community law (see, to that effect, Case C‑101/01 Lindqvist  ECR I‑12971, paragraph 87, and Case C‑305/05 Ordre des barreaux francophones et germanophone and Others  ECR I‑5305, paragraph 28).
The court noted that 2201/2003's purpose was to establish jurisdiction for the best interests of the child and the Regulation presumes that proximity serves this purpose. However, Article 20 provides an exception for provisional matters when the measures are (1) urgent, (2) related to a person in the Member State, and (3) provisional.
The Court first examined (1) urgency and found that this factor had not been met. As a policy matter, the ruling ran counter to the need for mutual trust between Member States. Because the Italian court decision had been final and recognized in Slovenia, allowing a Slovene court to make a provisional order counter to the Italian court's order would effectively ignore the Italian court's jurisdiction.
Further, if a parent could rely on a change of circumstances brought about by a wrongful removal, this would only incentivize wrongful removals.
As for the second factor, (2) person in a Member State, the Court held that because the father was in Italy, the Slovene court neither had the ability to make a provisional order.
Finally, the ECJ found that the Slovene order ran contrary to the Charter of Fundamental Rights of the European Union. Namely, the order violated "the right, set out in Article 24(3) of the Charter, to maintain on a regular basis a personal relationship and direct contact with both parents, respect for that right undeniably merging into the best interests of any child." And the Court found no evidence that suggested a way around Article 24(3) because nothing suggested that this order otherwise served the best interests of the child. Thus, the Court did not allow the provisional order.