Which Court Has Jurisdiction to Authorize the Sale of Property Belonging to Children in International Cases?

Q: which court had jurisdiction? The courts of the State where the property was located (Bulgaria), or the courts of the children's habitual residence (Germany)?

the CJEU confirmed that, in principle, the German courts, as the courts of the children's habitual residence, had jurisdiction to authorize the sale.

Paula Gonçales
22 hours ago
4 min read

Updated: 19 hours ago

The sale of real estate owned by a person under the age of 18 is rarely straightforward. In cross-border disputes, two connecting factors typically dominate the legal analysis: the place where the child has their habitual residence and the place where the property is located (lex rei sitae). This question was addressed in the Anikovi judgment, delivered by the Court of Justice of the European Union (CJEU) on 6 March 2025 (Case C-395/23), which established important criteria for determining international jurisdiction.

The Anikovi case (CJEU, 6 March 2025, C-395/23)

In 2023, the Sofia District Court (Sofiyski Rayonen Sad) received an application seeking judicial authorization to sell shares in properties located in Bulgaria that had been inherited by two children following their father's death. The children, however, had been living with their mother in Germany for several years, where they had their habitual residence.

The question referred to the CJEU was straightforward: which court had jurisdiction? The courts of the State where the property was located (Bulgaria), or the courts of the children's habitual residence (Germany)?

In its judgment, the CJEU held that:

a) Protective measure – An application seeking authorization to sell a child's property constitutes a measure relating to parental responsibility. Accordingly, jurisdiction is governed by Regulation (EU) 2019/1111 (Brussels IIb), rather than Regulation (EU) No. 1215/2012 (Brussels I Recast).

b) General rule (Article 7) – Jurisdiction lies, as a general rule, with the courts of the Member State where the child has their habitual residence (Germany).

Section 2 – Parental ResponsibilityArticle 7 – General Jurisdiction1. The courts of a Member State shall have jurisdiction in matters of parental responsibility concerning a child who is habitually resident in that Member State at the time the court is seised.

c) Alternative jurisdiction (Article 10) – The Bulgarian courts could only exercise jurisdiction if there were a close connection with Bulgaria, the child's legal representative (the mother) had expressly accepted that jurisdiction, and the choice of forum served the best interests of the child.

Article 10 – Choice of Court1. The courts of a Member State shall have jurisdiction in matters of parental responsibility where:a) the child has a close connection with that Member State, particularly because:i. at least one holder of parental responsibility is habitually resident there;ii. the child was formerly habitually resident there; oriii. the child is a national of that Member State.

d) Pre-accession treaty – A 1975 bilateral treaty between Bulgaria and the Soviet Union conferred jurisdiction on Bulgarian courts. The CJEU acknowledged that such treaties may continue to apply under Article 351 of the Treaty on the Functioning of the European Union (TFEU). However, they prevail only where they are genuinely incompatible with EU law and only until the Member State eliminates the inconsistency.

Accordingly, the referring court should not rely on the possibility of asserting jurisdiction under Article 10(1)(a), (b)(ii), and (c) of the Brussels IIb Regulation instead of applying the general jurisdiction rule laid down in Article 7(1), merely to reconcile EU law with the Bulgarian-Russian Agreement. In the circumstances of the case, both instruments ultimately designated the same courts as having jurisdiction.

As a result, the CJEU confirmed that, in principle, the German courts, as the courts of the children's habitual residence, had jurisdiction to authorize the sale.

How is this issue addressed in Brazil? What difference does it make that Brazil is not yet a party to the 1996 Hague Convention?

In Brazil, the sale of any real estate belonging to a child requires prior judicial authorization pursuant to Article 1,691 of the Brazilian Civil Code. The application is processed under the rules of voluntary jurisdiction before either the Family Court or the Juvenile Court, depending on the local judicial organization where the child resides. This jurisdictional criterion is reaffirmed by Article 147 of the Statute of the Child and Adolescent (ECA), which prioritizes the court of the child's legal representative or the place where the child is located, as well as by Superior Court of Justice (STJ) Precedent No. 383, according to which jurisdiction over proceedings involving a child generally lies with the court of the domicile of the person holding custody.

Judicial authorization will only be granted where the child's legal representatives demonstrate a genuine necessity or a clear benefit to the child. The Public Prosecutor's Office must be heard, and, where appropriate, the court may appoint an expert to assess both the property's value and the intended use of the sale proceeds.

Because Brazil has not yet acceded to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, these judicial decisions do not benefit from automatic recognition abroad.

Consequently, where the property is located outside Brazil, or where the authorization must produce legal effects in another jurisdiction, it will generally be necessary to:

a) obtain recognition of the Brazilian judgment in accordance with the domestic law of the foreign State (or under any applicable bilateral treaty); or

b) conversely, where a foreign court has authorized the sale, obtain recognition of the relevant letter rogatory or foreign judicial decision before the Superior Court of Justice (STJ) so that it may produce legal effects in Brazil.

In other words, while the Brazilian domestic system provides a clear and centralized procedure based on the child's domicile, any cross-border effectiveness of such decisions continues to depend upon formal recognition procedures and international judicial cooperation, as Brazil does not yet benefit from the simplified recognition regime established by the 1996 Hague Convention.

Disclaimer: This article is provided for informational purposes only and does not constitute legal advice. If you require guidance regarding your specific circumstances, please consult a qualified legal professional.