The Regulation establishes a general jurisdiction rule based on the habitual residence of the child to ensure a real link between the child and the Member State exercising jurisdiction.
Per Article 8 Council Regulation (EC) No. 2201/2003- “The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.”
The seising of the court is determined by Article 16 for all purposes arising under Brussels IIA Regulation. A change of the child’s habitual residence taking place after the court is seised will not affect jurisdiction (perpetuatio fori).
The basic ground of the child’s habitual residence is qualified in certain cases of a change in the child’s residence (wrongful removal or retention as in Article 10 BR II) or pursuant to an agreement between the holders of parental responsibility (Article 12 BR II) and a flexibility mechanism is also provided for by means of the possibility to transfer the legal proceeding to a court better placed to hear the case (Article 15 BR II). The Regulation determines merely the Member State whose courts have jurisdiction, but not the court which is competent within that Member State. This question is left to domestic procedural law. If the child’s habitual residence cannot be established, then the member state in which the child is present has jurisdiction. The aim is to attribute jurisdiction in all cases in a way that serves the best interests of the child.
In urgent cases, a court may take provisional protective measures even if another member state has jurisdiction on the substantive issue.