Short answer
Council Regulation (EU) 2019/1111, commonly called Brussels IIb, supplies separate jurisdiction rules for divorce and parental responsibility. Divorce may be brought in any Member State satisfying one of Article 3's connecting factors, including the spouses' current or last shared habitual residence, the respondent's habitual residence, specified periods of the applicant's habitual residence, or common nationality. No one divorce ground automatically outranks the others.
Parental responsibility normally belongs to the courts of the Member State where the child is habitually resident when proceedings begin. That is a fact-based centre of the child's life, not a registration, nationality, parental label or mathematical day count. Physical presence is necessary, while integration in the child's family and social environment, the move's duration and reasons, schooling, language, relationships and the parents' implemented plans can all matter.
Wrongful removal does not normally transfer custody jurisdiction to the new state. The former habitual-residence courts retain it under Article 9 until strict conditions for transfer are met. A return application is dealt with under the 1980 Hague Child Abduction Convention, complemented between participating Member States by Brussels IIb's accelerated procedure, child-hearing rule and protective measures. A return decision restores the forum for custody; it does not decide which parent should ultimately have custody.
Divorce jurisdiction is not custody jurisdiction
Brussels IIb applies to divorce, legal separation, marriage annulment and civil matters of parental responsibility. It does not determine the law applicable to divorce, the financial consequences of marriage, maintenance, parentage or succession. Denmark does not participate in the Regulation.
Article 3 gives divorce jurisdiction to the courts of a Member State where:
- both spouses are habitually resident;
- they were last habitually resident, if one still lives there;
- the respondent is habitually resident;
- either spouse is habitually resident for a joint application;
- the applicant has been habitually resident for at least one year immediately before filing;
- the applicant has been habitually resident for at least six months and is a national of that state; or
- both spouses are nationals of that state.
These are alternative grounds. The first properly seised court normally proceeds while a later court stays a parallel divorce case. Forum strategy can therefore matter, but a party cannot manufacture habitual residence with a short tactical stay unsupported by the stable centre of life.
A divorce court does not automatically receive jurisdiction over the children. It must separately satisfy the parental-responsibility rules. Nor does a custody order decide divorce jurisdiction.
The child's habitual residence is the general rule
Article 7 provides:
“The courts of a Member State shall have jurisdiction ... over a child who is habitually resident in that Member State”. —
The time for assessment is when the court is seised. Habitual residence is an autonomous EU concept established from all circumstances particular to the child. It identifies the place with a sufficient degree of stability and proximity to the evidence about the child's welfare.
In A, C-523/07, the Court described the test as the place reflecting some degree of the child's integration in a social and family environment. Relevant factors include the duration, regularity, conditions and reasons for presence and the family's move; nationality; school attendance; language; and family and social relationships. Parental intention can matter when demonstrated by concrete steps, but is not conclusive.
For a baby, the family environment carries particular weight because social ties outside it are limited. The court examines the child's actual care arrangements and the primary carer's circumstances, origins and reasons for moving. For an older child, school, friends, activities, language and the child's own experience may be more probative.
Physical presence is indispensable. In OL, C-111/17 PPU, a newborn who had always remained in the birth state did not acquire habitual residence in the intended destination merely because the parents had previously planned to live there. In UD, C-393/18 PPU, a child born and continuously living outside the EU could not be habitually resident in a Member State without ever being physically present there, even though alleged coercion surrounding the mother's location remained relevant to other legal remedies.
No factor sets an automatic minimum period. A settled, implemented lawful move can establish a new residence relatively quickly; a temporary holiday or unstable stop may not. Evidence should cover travel and housing records, childcare and school, medical care, language, community life, parental communications, work and the intended duration of arrangements.
Limited alternatives and transfers
If habitual residence cannot be established and no valid choice applies, the courts where the child is present may act under Article 11. That rule also assists refugee or internationally displaced children. National residual rules apply only where no Member State court has jurisdiction under the Regulation.
Article 10 allows a bounded choice of court for parental responsibility. The child must have a substantial connection with the selected Member State; all relevant holders must freely agree or expressly accept jurisdiction with informed rights; and the choice must serve the child's best interests. A divorce clause between spouses alone is not enough.
Parental responsibility is wider than custody. In Anikovi, C-395/23, judicial authorisation to sell a child's shares in immovable property was a protective measure within Brussels IIb. The child's habitual-residence courts therefore had jurisdiction in principle under Article 7.
In exceptional circumstances, the competent court can transfer a case to a better-placed Member State with which the child has a particular connection, if that serves the child's best interests. The receiving court must accept within the Regulation's timetable. This is a judicial transfer, not unilateral forum shopping.
Urgent courts where the child or the child's property is present can adopt provisional protective measures even if another state has jurisdiction on the substance. They should communicate where protection requires it, and their measures cease when the merits court takes appropriate measures.
Wrongful removal normally preserves the old forum
A removal or retention is wrongful where it breaches rights of custody under the law of the child's habitual residence immediately before the event and those rights were exercised, or would have been exercised but for the removal. Custody includes the right to determine residence and can arise by law, judgment or legally effective agreement.
Article 9 keeps substantive parental-responsibility jurisdiction in the former habitual-residence state. It transfers only after the child acquires habitual residence in the new state and either every custody holder acquiesces, or the child has been settled there for at least a year after the left-behind holder knew or should have known the whereabouts and one of the listed procedural conditions is satisfied.
This protects against acquiring jurisdiction through an unlawful move. It also distinguishes two cases:
- return proceedings ask whether the child should promptly return to the state of habitual residence; and
- custody proceedings decide long-term parental responsibility and the child's residence.
Winning or losing the return application does not itself decide custody.
The Hague return procedure, complemented by Brussels IIb
For a child under 16 wrongfully removed or retained between Contracting States, the 1980 Hague Convention provides the return mechanism. Between participating EU Member States, Articles 22–29 of Brussels IIb supplement it.
Treaty relations with an acceding third state are not automatic. Decision (EU) 2026/1790 authorises Member States to accept Cabo Verde's accession and requires declarations by 15 July 2027. Until a declaration takes effect, practitioners should verify the HCCH status table for the two states concerned.
The Central Authorities cooperate to locate the child and facilitate the application. Courts must use expeditious procedures and, absent exceptional circumstances, first-instance and appeal stages each have a six-week decision objective once the relevant stage is ready.
Return is the Convention's starting point, subject to limited defences. They include lack of actual exercise or consent/acquiescence, grave risk of physical or psychological harm or an intolerable situation, objections of a sufficiently mature child, settlement after a delayed application, and the Convention's fundamental-rights exception. These are not invitations to conduct a full custody trial in the refuge state.
Where grave risk is alleged between Member States, Brussels IIb directs the court to consider adequate protective arrangements after return. It may order urgent measures, communicate with the former-residence authorities, and make the return order provisionally enforceable where the child's best interests require it.
A child capable of forming views must receive a “genuine and effective opportunity” to express them. —
The child's view receives weight according to age and maturity; it does not automatically dictate the result. Courts must also hear the person seeking return before refusing it.
Practical case preparation
Document each Article 3 link and build a child-centred chronology of location, care, school, health, language and relationships. In abduction cases, contact the Central Authority promptly, prove the custody right and actual exercise, preserve evidence of consent or retention, and propose concrete return protections. Any mediated agreement should be made enforceable where it must operate.
Conclusion
Brussels IIb deliberately separates marital status from decisions about children. Divorce follows one of several adult connecting factors; parental responsibility follows the child's actual habitual residence. Wrongful removal ordinarily freezes that jurisdiction in the former state while the Hague return process restores the proper forum. Courts determine habitual residence from the child's real life, and both procedure and evidence must remain focused on the child's best interests rather than parental labels or tactical addresses.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.