(Oct. 19, 2011) The Swedish Supreme Court, on July 5, 2011, decided that there is no basis for Swedish jurisdiction over a custody battle when the child's “habitual residence” is outside Sweden and the European Union. (Högsta Domstolens Beslut [Supreme Court Decision] Ö 5155-10 [hereinafter Decision Ö 5155-10], Supreme Court website (last visited Oct. 3, 2011).) The Supreme Court thereby reinforced the principle that the Brussels II jurisdiction provisions govern not only when the child is living in an EU Member State, but also when he or she is living outside the EU. (Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility, Repealing Regulation (EC) No 1347/2000, EURLEX.)
In the case at hand, the lawful move by the custodial parent to Indonesia resulted in Indonesia becoming the “habitual residence” of the child. Because Indonesia is the habitual residence of the child, it also is the sole venue for the dispute, despite all parties being Swedish citizens. The Supreme Court relied heavily on the parent's “intention” at the time of the move in determining whether or not the move was temporary or permanent. (Decision Ö 5155-10, supra, ¶ 9.)
However, Swedish courts retain jurisdiction under the Föräldrabalk [FB][Code Relating to Parents, Guardians, and Children] 21:1 (Swed.) over enforcement proceedings of a current custody agreement if the agreement was decided by a Swedish court. (Högsta Domstolens Beslut [Supreme Court Decision] Ö5153-10, Supreme Court website (last visited Oct. 17, 2011).) Thus, in the case at hand, the Swedish courts may enforce the custody agreement, which was determined by a Swedish court, but they have no jurisdiction to change the terms of that agreement. (Id.)
Prepared by Elin Hofverberg, Law Library Intern, under the guidance of Edith Palmer, Chief, Foreign, Comparative and International Law (FCIL) II. Ms. Hofverberg has a Jur. kand. (Master of Laws) from Uppsala University. She recently earned an LL.M. in International and Comparative Law from The George Washington University Law School.