View of the Advocate General — ECLI:EU:C:2014:2275
Date: 2014-09-14
Language of the case: English
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Preliminary reference - urgent procedure
Origin: Ireland

Summary — Judgment of the Court (Third Chamber), 9 October 2014 1. Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility — Regulation No 2201/2003 — Application for return of a child — Removal of a child taking place in accordance with a judgment which was provisionally enforceable and which was thereafter overturned by a judgment which fixed the residence of the child in the Member State of origin — Obligation on the court seised of an application for the return of a child to determine where the child was habitually resident immediately before the alleged wrongful retention (Council Regulation No 2201/2003, Arts 2(11) and 11) 2. Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility — Regulation No 2201/2003 — Concept of ‘habitual residence’ of a child — Assessment criteria — Removal of a child taking place in accordance with a judgment which was provisionally enforceable and which was thereafter overturned by a judgment which fixed the residence of the child in the Member State of origin — Assessment by the court in the Member State to which the child has been removed, seised of an application for return, of all the specific circumstances of fact (Council Regulation No 2201/2003, Arts 2(11), 8, 10 and 11) 3. Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility — Regulation No 2201/2003 — Removal of a child taking place in accordance with a judgment which was provisionally enforceable and which was thereafter overturned by a judgment which fixed the residence of the child in the Member State of origin — Child still habitually resident in that Member State immediately before the retention — Wrongful retention — Child no longer habitually resident in the Member State of origin immediately before the retention — Decision dismissing an application for return to be without prejudice to the application of the rules relating to the recognition and enforcement of judgments given in another Member State (Council Regulation No 2201/2003, Art. 11) 1. Articles 2(11) and 11 of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility must be interpreted as meaning that where the removal of a child has taken place in accordance with a judgment which was provisionally enforceable and which was thereafter overturned by a judgment which fixed the residence of the child at the home of the parent living in the Member State of origin, the court of the Member State to which the child was removed, seised of an application for the return of the child, must determine, by undertaking an assessment of all the circumstances specific to the individual case, whether the child was still habitually resident in the Member State of origin immediately before the alleged wrongful retention. As part of that assessment, it is important that account be taken of the fact that the judgment authorising the removal could be provisionally enforced and that an appeal had been brought against it. According to the definition of wrongful removal or retention given in Article 2(11) of Regulation No 2201/2003, in wording very similar to that of Article 3 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, a removal or retention, before being considered wrongful within the meaning of the Regulation, must have taken place in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect, under the law of the Member State where the child was habitually resident immediately before the removal or retention. It follows from that definition that the identification of a wrongful removal or retention within the meaning of Article 2(11) of the Regulation presupposes that the child was habitually resident in the Member State of origin immediately before the removal or retention and that there is a breach of rights of custody attributed under the law of that Member State. Article 11(1) of the Regulation, for its part, provides that paragraphs 2 to 8 of that article are to apply where the holder of rights of custody applies to the competent authorities of a Member State to deliver a judgment on the basis of the 1980 Hague Convention in order to obtain the return of a child that has been wrongfully removed to or retained in ‘a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention’. It follows that this is not the case if the child was not habitually resident in the Member State of origin immediately before the removal or retention. It is evident, therefore, from both Article 2(11) and Article 11(1) of the Regulation, that the latter article can be applied for the purposes of granting an application for return only if the child was, immediately before the alleged wrongful retention, habitually resident in the Member State of origin. (see paras 46-49, 57, operative part 1) 2. As regards the concept of ‘habitual residence’, for the purposes of Articles 8 and 10 of Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, the meaning and scope of that concept must be determined in the light of, in particular, the objective stated in recital 12 in the preamble to the Regulation, which states that the grounds of jurisdiction established in the Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. Further, a child’s habitual residence must be established by the national court, taking account of all the circumstances of fact specific to each individual case. In that regard, in addition to the physical presence of the child in a Member State, other factors must also make it clear that that presence is not in any way temporary or intermittent and that the child’s residence corresponds to the place which reflects some degree of integration in a social and family environment. To that end, account must be taken of, inter alia, the duration, regularity, conditions and reasons for the stay in the territory of a Member State and for the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State. The intention of the parents or one of them to settle permanently with the child in another Member State, manifested by certain tangible steps such as the purchase or lease of a residence in that Member State, may constitute an indicator of the transfer of the child’s habitual residence. Further, the duration of a stay can serve only as an indicator, as part of the assessment of all the circumstances of fact specific to each individual case. The concept of the child’s ‘habitual residence’ in Article 2(11) and in Article 11 of Regulation No 2201/2003 cannot differ in content from the concept of ‘habitual residence’ in Articles 8 and 10 of the Regulation. Accordingly, it is the task of the court of the Member State to which the child has been removed, when seised of an application for return on the basis of the 1980 Hague Convention on the Civil Aspects of International Child Abduction and Article 11 of Regulation No 2201/2003, to determine whether the child was habitually resident in the Member State of origin immediately before the alleged wrongful removal or retention, taking into account all the circumstances of fact specific to the individual case, using the assessment criteria mentioned above. When examining in particular the reasons for the child’s stay in the Member State to which the child was removed and the intention of the parent who took the child there, it is important to take into account the fact that the court judgment authorising the removal could be provisionally enforced and that an appeal had been brought against it. Those factors are not conducive to a finding that the child’s habitual residence was transferred. Having regard to the necessity of ensuring the protection of the best interests of the child, those factors are, as part of the assessment of all the specific circumstances, to be weighed against other matters of fact which might demonstrate a degree of integration of the child in a social and family environment since the removal, in particular, the time which elapsed between that removal and the judgment which set aside the judgment of first instance and fixed the residence of the child at the home of the parent living in the Member State of origin. However, the time which has passed since that judgment should not in any circumstances be taken into consideration. (see paras 50-56) 3. Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility must be interpreted as meaning that, in circumstances where the removal of a child has taken place in accordance with a court judgment which was provisionally enforceable and which was thereafter overturned by a court judgment fixing the child’s residence at the home of the parent living in the Member State of origin, the failure to return the child to that Member State following the latter judgment is wrongful and Article 11 of the Regulation is applicable if it is held that the child was still habitually resident in that Member State immediately before the retention. If it is held, conversely, that the child was at that time no longer habitually resident in the Member State of origin, a decision dismissing the application for return based on that provision is without prejudice to the application of the rules established in Chapter III of the Regulation relating to the recognition and enforcement of judgments given in another Member State. In that regard, the possibility that a child’s habitual residence might have changed following a judgment at first instance, in the course of appeal proceedings, and that such a change might, in a particular case, be determined by the court seised of an application for return based on the 1980 Hague Convention on the Civil Aspects of International Child Abduction and Article 11 of the Regulation, cannot constitute a factor on which a parent who retains a child in breach of rights of custody can rely in order to prolong the factual situation created by his or her wrongful conduct and in order to oppose the enforcement of the judgment given in the Member State of origin on the exercise of parental responsibility which is enforceable in that Member State and which has been served. If it were considered that a finding of a change of the child’s habitual residence by the court seised of such an application would permit the prolongation of that factual situation and the obstruction of the enforcement of such a judgment, that would constitute a circumvention of the mechanism established by Section 2 of Chapter III of the Regulation and would render this mechanism devoid of purpose. Likewise, the bringing of an appeal against such a judgment given by the Member State of origin on the exercise of parental responsibility cannot have any effect on the enforcement of that judgment. (paras 67-69, operative part 2)