Necessary Consent:

Article 2(9) of the Regulation defines “wrongful retention” as:
„The retention of a child is wrongful where it is in breach of custody rights attributed by a court decision, by operation of law, or by an agreement in force.”
By analogy, relocation without the consent of the other parent or holders of parental responsibility is deemed wrongful unless authorized by a court order.

Jurisdiction of the Courts:

„The courts of the Member State of the child’s habitual residence have exclusive jurisdiction over matters concerning parental responsibility, including relocation.”

„In cases of wrongful removal or retention, the courts of the Member State of the child’s habitual residence prior to the relocation retain jurisdiction until a new habitual residence is established.”

Procedure for Lawful Relocation:

To proceed with relocation, the parent must:

1. Obtain explicit consent from the other parent or all holders of parental responsibility.
2. In the absence of consent, seek a court order from the Member State where the child has habitual residence.

ECHR Jurisprudence on Child Relocation:

The European Court of Human Rights (ECHR) has established principles for child relocation under Article 8 of the European Convention on Human Rights (Right to Respect for Private and Family Life).

Key Principles Established by the ECHR:

• Best interests of the child prevail in all decisions.
  • Neulinger and Shuruk v. Switzerland (2010) emphasizes:
    “The best interests of the child include the right to stability and the maintenance of relationships with both parents.”

• Proportionality Assessment:
  • K.J. v. Poland (2016) states that relocation must consider:
    • Benefits to the child.
    • Impact on the relationship with the parent remaining in the home country.
    • Compliance with legal procedures.

Child’s Right to Be Heard:

• M. and M. v. Croatia (2015) clarifies:
  „The child must have a genuine opportunity to express their views unless this would cause harm.”

Practical Steps for Relocation:

1. Filing a Relocation Request:
   • Submit to the competent court in the child’s habitual residence.
   • Demonstrate that relocation serves the child’s best interests and that the relocating parent has the resources to ensure the child’s welfare.
2. Hearing the Child:
   • Under the Regulation:
     “The child has the right to be heard if capable of forming their own views.”
3. Analysis of Best Interests:
   The court evaluates whether relocation:
   • Enhances the child’s education, health, or family environment.
   • Maintains meaningful ties with the non-relocating parent.
4. Post-Relocation Contact Arrangements:
   • The Regulation provides measures to ensure continued contact, including visitation and virtual communication.

Strategic Arguments for Relocation:

• Proof of Improved Conditions:
  Examples include access to better education, financial stability, or career opportunities for the relocating parent.
• Maintaining Connections with the Other Parent:
  Propose a concrete visitation and communication plan, including mediation if necessary.
• Minimizing Risks for the Child:
  Ensure relocation does not create instability or undue emotional stress for the child.

Dispute Resolution Procedures:

If relocation is contested:

• Litispendence Rules : The court first seized has priority.
• Child’s Opinion: The court must consider the child’s perspective if they are capable of expressing their views .
• Wrongful Removal:
  Unauthorized relocation qualifies as wrongful retention, and the courts of the original Member State retain jurisdictio .

Role of the 1980 Hague Convention:

The Regulation complements the Hague Convention of 1980 in relationships between Member States:

• In wrongful removal cases, measures for the prompt return of the child are applied (Arts. 29–31).
• Courts assess protective measures available in the state of origin to ensure the child’s safety upon return (Art. 13(1)(b) of the Hague Convention).

Recommendations for Resolving Disputes:

• Encourage mediation and other alternative dispute resolution methods (Art. 43), ensuring they do not unduly delay judicial proceedings.

Protect the Child’s Rights in International Relocation!

For guidance through complex procedures and ensuring the child’s best interests are upheld under European law, contact a family law expert at IB LEGAL FAMILY.