Cour de cassation 1ère Chambre civile; 2023-06-01; 1re Civ., 1 juin 2023, pourvoi n° 21-18.257
Decision by national courts in the field of European Union law — ECLI:FR:CCASS:2023:C100373
Date: 2023-06-01
Subject matter: Judicial cooperation in civil matters
Origin: France

82023FR0601(51)_ENG_SUMJURE
JURE summary
JURE summary
This case, examined by the Cour de Cassation (hereinafter ‘the Supreme Court’) concerned the problem of assessing the habitual residence of a child.
The defendant and the plaintiff married, had children, and broke up. The defendant moved to France, and the plaintiff moved to the United States of America with the children. The defendant filed an application for divorce in France, before a juge aux affaires familiales (hereinafter ‘the Court of First Instance’).
The case was brought before the cour d’appel de Dijon (hereinafter ‘the Court of Appeal’), which rejected an objection to jurisdiction raised by the plaintiff, on the grounds that the habitual residence of the children was in the United States when the Court of First Instance was seised, so that the French courts had jurisdiction pursuant to Article 14 of the new Brussels II Regulation (1), which provides that ‘[where] no court of a Member State has jurisdiction pursuant to Articles 8 to 13, jurisdiction shall be determined, in each Member State, by the laws of that State’.
The plaintiff appealed to the Supreme Court. She argued that the Court of Appeal found that the children now had their habitual residence in Spain, and the Court of Appeal should have examined if the Spanish courts did not have jurisdiction for that reason.
The Supreme Court held that Article 13(1) of the new Brussels II Regulation allows one to seise the courts of a Member State where the child is merely present, but added that this article only applies if it is impossible to establish in what State the child’s habitual residence is.
As the Court of Appeal found that the children’s habitual residence was in the United States when the Court of First Instance was seised, it did not have to make an assessment grounded on the above-mentioned Article 13(1).
The appeal was dismissed.
(1) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.