Nejvyšší soud, usnesení ze dne 27/09/2011 30 Cdo 2244/2011 minor child M.V., mother Mgr. P.H. and father Ing. R.V.
Decision by national courts in the field of European Union law — ECLI:CZ:NS:2011:30.CDO.2244.2011.1
Date: 2011-09-27
Subject matter: Judicial cooperation in civil matters
Origin: Czechia

82011CZ0927(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
A Czech father applied to the Okresní soud of Cheb (CZ) for access rights regarding his son. The court, finding that the son had lived since 2008 with his Czech mother in Germany, declined jurisdiction under Article 8(1) Brussels II bis Regulation. On appeal, the Krajský soud of Plzeň (CZ) affirmed the lower court´s decision, reasoning that the son had been living in Germany for more than 2 years, where the boy plays football in a club and has his state health insurance, which was sufficient to consider his residence as stable, continuing that this conclusion could be controverted neither by his school attendance nor by residence of his father and grandparents in the Czech Republic, nor by the Czech nationality of the child. The father appealed again, claiming that the residence of the minor in Germany is mainly of a registration nature, and the son spends most of his time in the Czech republic where he attends school, has friends and relatives, and does not leave for Germany until early evening.
The Nejvyšší soud (CZ) states that the term habitual residence has to be interpreted in the sense that it corresponds with the place showing certain integration of the child within social and family environment.
The national court has to take into consideration all concrete factual circumstances in each case. Habitual residence is a factual, not legal, concept and represents a place where a person has the centre of
his/her life. The lower court did not evaluate the relationship of the child to the place of his school attendance, language knowledge, family and social links. It reverses the decisions of both lower courts, stating that it is the task of the court to determine the degree of family and social integration of the child in respective Member States with regard to all the circumstances of the case based on criteria as to the importance of individual indicatiors set out in decisions ECJ 2 April 2009 - C-523/07 and ECJ 22 December 2010 - C 497/10 - PPU.