The applicants, A and B, are two third-country nationals who have resided in Finland since 2016 before moving to Sweden. In September 2019, a child was born from their union. The child was habitually resident in Sweden, and both parents had joint custody. The mother was issued residence permits in Finland and Sweden based on family ties, linked to the father's residence document as an employed person. By decision of the Swedish authorities, confirmed by an administrative court in January 2020, the child was taken into care due to domestic violence against the mother by the father, the real risk to the child's development and health, and the risk that the father would take the child to the parents' country of origin without the mother's consent. In August 2020, the mother applied for asylum in Sweden for herself and the child, citing domestic violence and threats of honour violence from the father's family if she returned to her country of origin. That same month, Finland informed Sweden that it was responsible for examining the asylum applications under Article 12(3) of the Dublin III Regulation, as the Finnish residence document expired after the Swedish one. The Swedish authorities rejected the mother's and child's asylum applications as inadmissible and ordered their transfer to Finland. On 24 November 2020, the mother voluntarily complied with the Swedish authorities' decision to transfer herself and the child to Finland under Article 29(1) of the Dublin III Regulation. In January 2021, the mother applied for asylum in Finland for herself and the child. In December 2020, the father brought an action before the Court of Appeal in Helsinki seeking an order for the prompt return of the child to Sweden. The court dismissed the application, concluding that the mother had not wrongfully removed the child from his country of residence, since they did not have a valid residence document in Sweden at that time. The father appealed to the Supreme Court seeking annulment of that decision. The court stayed the domestic proceedings and submitted five questions for preliminary ruling to the Court of Justice of the European Union (CJEU).

The CJEU examined the first and second questions together and concluded that considering the answer given there was no need to reply to the third, fourth and fifth questions.

The first and second questions sought to ascertain whether Article 2(11) of the Brussels II bis Regulation must be interpreted to mean that a situation in which one of the parents, without the other parent's consent, removes the child from his or her Member State of habitual residence to another Member State pursuant to a decision to transfer taken by the first Member State in application of the Dublin III Regulation, then remains in the second Member State after the decision to transfer has been annulled without the authorities of the first Member State deciding to take back the persons transferred or authorise their residence, can be considered wrongful removal or retention within the meaning of that provision.

The CJEU held that since the father of the child had brought his action before the Finnish Supreme Court with a view to obtaining the prompt return of the child to Sweden, the object of the application concerned parental responsibility and the Brussels II bis Regulation was applicable. Next, citing the considerations of the Advocate General Pikamae, ‘wrongful removal or retention' required that the removal of the child is in breach of rights of custody under the law of the Member State where the child was habitually resident, and, on the other hand, that the rights of custody were actually exercised for the removal or retention. The court ruled that to move with the child pursuant to a transfer decision under the Dublin III Regulation could not be considered wrongful conduct likely to constitute wrongful removal. The court highlighted that compliance with such a transfer was merely a legal consequence of a decision which could not be blamed on the parent in question. The court reached the same conclusion regarding retention in the Member State responsible for examining the asylum application. It noted that in such a situation, the child's retention appeared to be the mere consequence of the child's administrative status, as determined by enforceable decisions taken by the Member State where the child was habitually resident. Finally, the court remarked that understanding that the mother should refrain from complying with a transfer decision on the ground that her conduct could be considered wrongful under the Brussels II bis Regulation would undermine the principle of legal certainty and the attainment of the objectives pursued by the Dublin III Regulation.