Generally the courts of the child’s former habitual residence retain jurisdiction although the child is no longer physically present in this jurisdiction, if the child is wrongfully removed or retained, particularly after visiting a person having a right of access.
Per Article 10 Council Regulation (EC) No 2201/ 2003. “In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State .”
Wrongful removal or retention is defined in Article 2(11). The courts of the Member State where the child is actually present after the wrongful displacement do not acquire jurisdiction, unless the child is habitually resident in this State and one of the following two scenarios of acquiescence are given:
- either each , institution or other body having rights of custody must have acquiesced in the removal or retention (Article 10(a)), or
- the child has resided there for at least one year after anybody in charge of the child’s custody had actual or constructive knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the four conditions under Article 10(b) are met.