Joseba Andoni Aguirre Zarraga v. Simone Pelz, Case C-491/10 PPU, CJEU, 22 December 2010

Separation of a child from the parent with the risk of deteriorating relations between the latter or of damaging such relations and causing psychological damage. Superior protection of the minor.

 

Regulation (EC) n. 2201/2003 of the Council, of 27 November 2003, on the jurisdiction, recognition and enforcement of decisions in matrimonial matters and in matters of parental responsibility, which repeals Regulation (EC) no. 1347/2000.
 

1. It is possible to establish an emergency procedure, in situations of transfer of a minor, where the latter has been separated from the father for more than two years and, due to the distance and tense relationships between the parents of the minor, where there is a serious and concrete risk of total absence of contact between the minor and his father for the entire duration of the proceedings pending before the referring court. Therefore, the (EU) Court may decide to submit the reference for a preliminary ruling to the urgent procedure, since recourse to the ordinary procedure could damage the relationship between the parent and child.

2. In accordance with the provisions of art. 24 of the Charter of Fundamental Rights and by art. 42, of regulation no. 2201/2003, relating to jurisdiction, recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, the child's right to be heard does not require a hearing to be held before the court of the Member State of origin , but requires that legal procedures and conditions be made available (to that minor) to allow him to freely express his opinion and that the latter be collected by the judge.

3. If a decision is issued requiring the return of an unlawfully detained child without the child having been heard, the competent court of the executing Member State may not oppose the execution on the grounds that the court of the Member State of origin would have violated art. 42 of regulation no. 2201/2003, relating to jurisdiction, recognition and enforcement of decisions in matrimonial matters and in matters of parental responsibility.