Reg. 2201/2003; deslocação ou retenção ilícitas da criança
-- O TJ 9/10/2014 (C‑376/14 PPU, C/M) decidiu o seguinte (versão portuguesa ainda não disponível):
"1. Articles 2(11) and 11 of 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, must be interpreted as meaning that where the
removal of a child has taken place in accordance with a judgment
which was provisionally enforceable and which was thereafter
overturned by a judgment which fixed the residence of the child
at the home of the parent living in the Member State of
origin, the court of the Member State to which the child was removed,
seised of an application for the return of the child, must
determine, by undertaking an assessment of all the circumstances
of fact specific to the individual case, whether the child
was still habitually resident in the Member State of origin immediately
before the alleged wrongful retention. As part of that
assessment, it is important that account be taken of the fact that
the judgment authorising the removal could be provisionally
enforced and that an appeal had been brought against it.
2. Regulation No 2201/2003 must
be interpreted as meaning that, in circumstances where the removal of a
child has taken place
in accordance with a court judgment which was provisionally
enforceable and which was thereafter overturned by a court judgment
fixing the child’s residence at the home of the parent
living in the Member State of origin, the failure to return the child
to that Member State following the latter judgment is
wrongful and Article 11 of the Regulation is applicable if it is held
that the child was still habitually resident in that Member
State immediately before the retention. If it is held, conversely,
that the child was at that time no longer habitually
resident in the Member State of origin, a decision dismissing the
application
for return based on that provision is without prejudice to
the application of the rules established in Chapter III of the
Regulation relating to the recognition and enforcement of
judgments given in a Member State."
