Hoge Raad; 2022-03-25; Raad voor de Kinderbescherming ; 21/02435
Decision by national courts in the field of European Union law — ECLI:NL:HR:2022:440
Date: 2022-03-25
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82022NL0325(51)_ENG_SUMJURE
JURE summary
JURE summary
Hoge Raad (hereinafter ‘the Supreme Court’) – 25 March 2022 – ECLI:NL:HR:2022:440
Request for termination of parental custody over a minor - Definition of habitual residence
Article 8(1) of the new Brussels II Regulation (1).
A father and a mother, who passed away in September 2008, were the parents of a minor, who was born in the United States in 2006. The father married a stepmother in 2008. On their request, the Rechtbank Amsterdam (hereinafter ‘the Court of First Instance’) awarded joint custody of the minor to the father and the stepmother with effect from 25 May 2011.
On 13 March 2019, with the consent of the stepmother, the minor went to live with her paternal uncle and aunt (hereinafter ‘the foster parents’) in the Netherlands. The minor had been living in the Netherlands continuously since 14 March 2019.
At the request of the Raad voor de kinderbescherming (hereinafter ‘the Child Protection Board’), the Rechtbank Gelderland (hereinafter ‘the Juvenile Court’) placed the minor under the supervision of GI (2) with effect from 5 July 2019 until 5 July 2020. It also granted permission for the minor to be placed in a foster home from 5 July 2019 to 5 January 2020.
The Gerechtshof Arnhem-Leeuwarden (hereinafter ‘the Court of Appeal’) annulled the order of the Juvenile Court and declared a lack of jurisdiction to hear the initial request of the Child Protection Board.
The Supreme Court ruled to the contrary:
3.4. It is established that, at the time of the filing of the initial application by the Child Protection Board, the minor had been living continuously with her foster parents (uncle and aunt) in the Netherlands for almost a year and was attending school there. Furthermore, the Court of Appeal noted (in point 5.9) – and this was not challenged in cassation before the Supreme Court – that the minor also had Dutch nationality, spoke the Dutch language, had previously spent periods of time in the Netherlands (with her family), and had also temporarily attended a primary school in the Netherlands. Finally, the minutes of the oral hearing before the Court of Appeal state that, in a conversation with the presiding judge of the court, the minor expressed that she felt at home and peace with her foster parents and that she wished to continue living in the Netherlands. This set of facts leaves no other conclusion than that there is a certain degree of integration of the minor in a social and family environment in the Netherlands and, therefore, the minor's habitual residence within the meaning of Article 8(1) of the new Brussels II Regulation was in the Netherlands at the time of the filing of the initial application by the Child Protection Board. The Supreme Court determines that the Dutch court has jurisdiction to hear the Board’s application to terminate the parental custody of the father and stepmother over the minor.
(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.
(2) Gecertificeerde Instelling (the organisation that has been granted permission to conduct child protection measures).