Judgment;Summary — ECLI:EU:C:2022:371
Date: 2022-05-12
Language of the case: Polish
Court formation: Fourth Chamber
Subject matter: Justice and home affairs;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Poland

Translation  C-644/20 – 1 
Case C-644/20 
Request for a preliminary ruling 
Date lodged: 
26 November 2020 
Referring court: 
Sąd Okręgowy w Poznaniu (Regional Court in Poznań, Poland) 
Date of the decision to refer: 
10 November 2020 
Appellant and defendant at first instance: 
W. J. 
Respondents and applicants at first instance: 
L. J. and J. J. represented by their legal representative A. P. 
  
[Or. 1] […] 
ORDER 
On 10 November 2020 
the Regional Court in Poznań, 15th Civil Appeals Division 
[…] 
[…] [composition of the court] 
having examined on 10 November 2020 in Poznań 
in closed session 
the case brought by the minors L. J. and J. J. represented by their statutory legal 
representative A. P. 
against W. J. 
concerning maintenance 
EN 
REQUEST FOR A PRELIMINARY RULING OF 10. 11. 2020 – CASE C-644/20 
 
2  
following an appeal lodged by the defendant at first instance 
against the judgment of the Sąd Rejonowy w Pile (Piła District Court, Poland) 
of 11 April 2019 
[…] 
makes the following order: 
1. the following question is referred to the Court of Justice of the European 
Union for a preliminary ruling: 
‘Must Article 3(1) and (2) of the Hague Protocol of 23 November 2007 on the 
Law Applicable to Maintenance Obligations, approved on behalf of the European 
Community by Council Decision 2009/941/EC of 30 November 2009 (OJ 2009 
L 331, p. 17), be interpreted as meaning that a creditor who is a child may acquire 
a new habitual residence in the State in which he or she was wrongfully retained if 
a court orders the return of the creditor to the State in which he or she habitually 
resided immediately prior to the wrongful retention?’; 
2) the proceedings are stayed. 
[…] [composition of the court] 
[Or. 2] Grounds for the order 
I. Subject matter of the proceedings 
1 On 7 November 2018, in the District Court in Piła, the minor applicants L. J. and 
J. J., staying in K. in Poland and represented by their mother A. P., brought an 
action against their father W. J., staying in H. in the UK, for maintenance in the 
amount of PLN 1 200 per month. In his written submission of 11 February 2019, 
the defendant filed a defence in which he entered the dispute and did not raise a 
plea of lack of national jurisdiction. 
2 In its judgment of 11 April 2019, the Piła District Court […] [details relating to 
the case number] ordered the defendant to pay to each of the applicants 
maintenance of PLN 1 000 (a total of PLN 2 000 per month) as of 7 November 
2018, dismissed the remainder of the claim and ruled on the costs of the 
proceedings. In the judgment, the provisions of the Polish ustawa z 25 lutego 1964 
r. – Kodeks rodzinny i opiekuńczy (Law of 25 February 1964 – Family and 
Guardianship Code) (Dz. U. of 2020, item 1359) were applied to the maintenance 
obligation between the parties. 
3 The defendant appealed against that judgment, claiming that the court had made 
an error of fact in not taking into account that the applicants’ mother had been 
obliged by a court to return the children to their father by 26 June 2019, which 
W. J. 
 
3 
indicates that the imposition of the maintenance obligation on the defendant was 
unjustified. In the present case, the defendant’s appeal is being examined by the 
Regional Court in Poznań. 
II. Facts of the case 
4 The first applicant was born on 10 June 2015 and the second applicant was born 
on 29 May 2017. The applicants were born in the UK and have Polish and British 
nationality. The applicants were born of a non-marital relationship between A. P. 
and W. J., Polish citizens. The applicants’ parents met in 2012 in the UK where 
they were staying and working. 
5 On 25 October 2017, the first applicant arrived with her mother in Poland where 
she was to stay until 7 October 2017. The reason for her arrival was the expiry of 
her mother’s ID card. During that stay, the applicants’ mother informed the 
defendant that she intended to stay longer in Poland, to which the defendant 
agreed. On 7 October 2017, A. P. returned to the UK, which she left again on 
8 October 2017, [Or. 3] taking the second applicant with her. A few days later, 
the defendant was informed that A. P. intended to stay permanently in Poland 
together with the applicants. The defendant did not agree to this. 
6 The defendant, under the Convention on the Civil Aspects of International Child 
Abduction, done in The Hague on 25 October 1980 (Dz. U. of 1998, No 108, item 
528, ‘the 1980 Hague Convention’), lodged an application with the British central 
authority for the applicants’ return to the UK. On 3 January 2018, the application 
was forwarded to the District Court in P., which in its order of 26 February 2018 
[…] [details relating to the case number] […] refused to order the applicants’ 
return. As a result of the defendant’s appeal, the Regional Court in P. in its order 
of 24 May 2019 […] [details relating to the case number] […] amended the order 
under appeal and ordered the mother to return the minor applicants to the 
defendant by 26 June 2019. The basis of that order was a finding that the 
applicants had been wrongfully retained in Poland and that their habitual 
residence had been in the UK immediately prior to that retention, and at the same 
time there was no grave risk that the applicants’ return would expose them to 
physical or psychological harm or otherwise place them in an intolerable situation 
within the meaning of Article 13(1)(b) of the 1980 Hague Convention. 
7 The order of the Regional Court in P. of 24 May 2019 is final. The enforcement of 
that order will entail the applicants’ return to the UK, since the defendant’s 
habitual residence is still in that country. 
8 As at 11 April 2019, the applicants lived in K. together with their mother in a 
residence belonging to her parents. In addition to the parents, the mother’s brother 
and a minor daughter of the mother’s deceased sister lived in that residence. The 
first applicant was attending nursery at the time, while the second applicant was in 
his mother’s care. Due to immunodeficiency, he was under the constant care of 
medical facilities in both the UK and Poland, where he was periodically 
REQUEST FOR A PRELIMINARY RULING OF 10. 11. 2020 – CASE C-644/20 
 
4  
hospitalised. In Poland, the mother received welfare benefits for taking care of the 
applicants. 
9 The applicants were not returned by their mother by the prescribed deadline of 
26 June 2019. The defendant filed an application for enforcement of the order to 
return the applicants. In its order of 28 October 2019 […] [details relating to the 
case number] […], the District Court in P. ordered the court-appointed guardian to 
forcibly remove the applicants from their mother. That order was not implemented 
because the mother went into hiding [Or. 4] together with the applicants. 
Therefore, a police search for the applicants was ordered. The search has not been 
successful to date. 
III. EU law 
10 Article 15 of Council Regulation (EC) No 4/2009 of 18 December 2008 on 
jurisdiction, applicable law, recognition and enforcement of decisions and 
cooperation in matters relating to maintenance obligations (OJ 2009 L 7, p. 1, 
‘Regulation No 4/2009’) provides that the law applicable to maintenance 
obligations is to be determined in accordance with the Hague Protocol of 
23 November 2007 on the Law Applicable to Maintenance Obligations (‘the 
Hague Protocol’) in the Member States bound by that instrument. 
11 The Hague Protocol was approved on behalf of the European Community by 
Council Decision 2009/941/EC of 30 November 2009 (OJ 2009 L 331, p. 17). 
Pursuant to Article 1, the Hague Protocol determines the law applicable to 
maintenance obligations arising from a family relationship, parentage, marriage or 
affinity, including a maintenance obligation in respect of a child regardless of the 
marital status of the parents. Article 2 of the Hague Protocol provides that its 
provisions apply even if the applicable law is that of a non-Contracting State. 
According to Article 3(1) of the Hague Protocol, maintenance obligations are 
governed by the law of the State of habitual residence of the creditor, save where 
the Protocol provides otherwise. However, Article 3(2) of the Protocol provides 
that in the case of a change in the habitual residence of the creditor, the law of the 
State of the new habitual residence is to apply as from the moment when the 
change occurs. 
IV. Polish law 
12 Pursuant to Article 63 of the ustawa z 4 lutego 2011 r. – Prawo prywatne 
międzynarodowe (Law of 4 February 2011 – Private International Law) (Journal 
of Laws [Dz. U.] of 2015, item 1792), the law applicable to maintenance 
obligations is determined by Regulation No 4/2009. 
W. J. 
 
5 
V. Need for the interpretation of EU law 
13 Article 3(1) of the Hague Protocol links the law applicable to the maintenance 
obligation to the creditor’s habitual residence. Pursuant to Article 3(2) of the 
Hague [Or. 5] Protocol, the law applicable to the maintenance obligation may 
change. Under this provision, the applicable law is the law of the State of the 
creditor’s current habitual residence as from the moment when the change occurs. 
14 The concept of ‘habitual residence’ is universal and is also used in other acts of 
European and international law. This concept provides one of the connecting 
factors for jurisdiction in matters relating to maintenance obligations (Article 3 of 
Regulation No 4/2009) and in matters of parental responsibility (Article 8 of 
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, ‘Regulation No 2201/2003’). The provisions of the 1980 Hague 
Convention and of Regulation No 2201/2003 also define, by means of the concept 
of ‘habitual residence’, the legal situation of a child who has been wrongfully 
removed or retained. These considerations militate in favour of a uniform 
interpretation of this concept in all acts of European and international law. 
15 In the case at issue, the maintenance creditors are minors. The concept of the 
habitual residence of minors has been repeatedly clarified by the Court of Justice 
of the European Union. The case-law in this respect indicates that habitual 
residence corresponds to the place which reflects some degree of integration by 
the child in a social and family environment, as evidenced in particular by the 
duration, regularity, conditions and reasons for the stay on the territory of a 
Member State and 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 (judgments of 2 April 2009, 
C-523/17 and of 22 December 2010, C-497/10). The child’s habitual residence 
should therefore refer to the place which, in practice, is the centre of that child’s 
life (judgment of 28 June 2018, C-512/17). 
16 In the light of the case-law referred to, the concept of habitual residence reflects 
essentially a question of fact (judgments of 8 June 2017, C111/17, paragraph 51, 
and of 10 April 2018, C-85/18, paragraph 49). Consequently, a change of habitual 
residence which, in the light of Article 3(2) of the Hague Protocol, justifies the 
application of the law of the State of that residence as applicable to the 
maintenance obligation, may be caused by a change [Or. 6] in the facts in a 
manner which indicates that the creditor’s residence in the new State has achieved 
a degree of stability characteristic of habitual residence. In this context, the 
question arises as to whether such a stable life situation may also be achieved if a 
creditor who is a child has been wrongfully retained in the new State and, at the 
same time, the parent who retained him or her refuses to submit to a court ruling 
ordering the return of the child to the State in which he or she was habitually 
resident immediately prior to the wrongful retention. 
REQUEST FOR A PRELIMINARY RULING OF 10. 11. 2020 – CASE C-644/20 
 
6  
17 This doubt can be resolved bearing in mind that the determination of habitual 
residence is a purely factual question. Under this approach, the fact that a child 
has been wrongfully retained should not affect the possibility of that child having 
his or her new habitual residence in the State of retention, since this depends 
solely on the assessment as to whether centre of that child’s life has actually been 
transferred to that State. It cannot therefore be ruled out that also following a 
wrongful abduction, the State to which the abduction took place may become the 
child’s habitual residence (judgment of the Court of Justice of the European Union 
of 1 July 2010, C-211/10, paragraphs 41 and 44). A similar position can also be 
found in the case-law of some national courts (compare, for instance, the 
judgment of the Austrian Oberster Gerichtshof (Supreme Court) of 27 June 2013, 
1Ob 91/13h, and the judgment of the Polish Sąd Najwyższy (Supreme Court) of 
31 August 2017, V CSK 303/17). This possibility also follows from Article 10 of 
Regulation No 2201/2003, which expressly states that another Member State may 
become the habitual residence of the child in case of wrongful removal or 
retention. 
18 However, the case-law of the Court of Justice of the European Union may also 
point to a different solution to this problem. In the light of that case-law, court 
rulings which determine the State in which the child should reside are also 
relevant in establishing the child’s habitual residence. It was therefore assumed 
that in the examination of the habitual residence in the State of retention, the time 
which has passed since the judgment that fixed the child’s residence in the State of 
origin should not in any circumstances be taken into consideration (judgment of 
9 October 2014, C-376/14, paragraph 56). One can similarly understand the 
position that, where a child who was habitually resident in a Member State has 
been wrongfully removed by one of the parents to another Member State, the 
courts of that other Member State [Or. 7] do not have jurisdiction to rule on an 
application relating to the determination of a maintenance allowance with respect 
to that child, in the absence of any indication that the other parent consented to his 
or her removal or did not bring an application for the return of that child (Order of 
10 April 2018, C-85/18, paragraph 57). Article 3(b) of Regulation No 4/2009 
provides that jurisdiction in such cases shall also lie with the courts of the place 
where the creditor is habitually resident. 
19 Regulation No 4/2009 and the Hague Protocol govern jurisdiction and applicable 
law only in matters relating to maintenance obligations. Unlike Regulation 
No 2201/2003, these two instruments do not contain separate provisions 
governing the relationship between habitual residence and court jurisdiction in 
cases where the creditor is a child and has been wrongfully retained in another 
Member State. This may justify the conclusion that under Article 3(2) of the 
Hague Protocol, the wrongfulness of retention has no bearing on a child acquiring 
a habitual residence in the State of retention, and as a result the law of that State as 
the law of the new habitual residence may become applicable to the maintenance 
obligation from the moment the change occurs. Indeed, in determining the law 
applicable to maintenance obligations, no direct or indirect basis has been 
provided for disregarding the effects of a change in facts relating to the child’s 
W. J. 
 
7 
habitual residence in the case where that change is due to wrongful retention. This 
matter can only be assessed differently where habitual residence is the connecting 
factor for the court’s jurisdiction in a maintenance case, since under Article 9(d) 
of Regulation No 4/2009, jurisdiction in such a case also lies with the court which 
has jurisdiction to entertain proceedings concerning parental responsibility if the 
matter relating to maintenance is ancillary to those proceedings. This opens the 
way for the application in the alternative in this respect of Article 10 of Regulation 
No 2201/2003, which ensures that the jurisdiction of the courts of the State where 
the child was habitually resident immediately prior to the wrongful removal or 
retention is maintained (to this effect, order of the Court of Justice of the 
European Union of 10 April 2018, C-85/18, paragraph 55). However, it is not 
possible to use a similar analogy if the determination of habitual residence is not 
intended to determine the jurisdiction of the court provided for in Article 3 of 
Regulation No 4/2009, but merely serves, under Article 3 [Or. 8] of the Hague 
Protocol, to determine the law applicable to a maintenance obligation. 
20 Nevertheless, the interpretation of the concept of habitual residence must also take 
into account the purposes for which the 1980 Hague Convention was adopted. As 
stated in the preamble, its objective is to protect children internationally from the 
harmful effects of their wrongful removal or retention and to establish procedures 
to ensure their prompt return to the State of their habitual residence. This is 
confirmed by Article 1(a) of the 1980 Hague Convention, which states that its 
object is to ensure the prompt return of children wrongfully removed to or 
retained in any Contracting State. The solutions adopted in this respect aim to 
ensure and maintain the child’s integration into the family and social environment 
in which he or she was immediately prior to the wrongful abduction or retention. 
This objective is also protected under European law as indicated in recital 17 of 
Regulation No 2201/2003, which states that in cases of wrongful removal or 
retention of a child, the return of the child should be obtained without delay. 
21 Bearing in mind the objective of the 1980 Hague Convention, it may be assumed 
that the facts arising from wrongful retention and the subsequent failure to submit 
to a court ruling ordering the return of a child should not result in the acquisition 
of a new habitual residence in the State of retention and thus to a change under 
Article 3(2) of the Hague Protocol of the law applicable to the maintenance 
obligation. Such a change would defeat the purpose of the 1980 Hague 
Convention, which is to respond promptly to wrongful interference in a child’s 
life, the aim of this response being to prevent the breaking of ties with the child’s 
previous habitual residence and the establishment of relations in the State of 
retention. On the other hand, a change in the applicable law on the basis that a 
new habitual residence has been acquired in the State of retention where a ruling 
ordering the return of the child has not been enforced would be tantamount to 
confirming the child’s integration into the environment of that State and into its 
legal space, which in turn would result in the wrongful failure to return the child 
to his State of origin being indirectly sanctioned. In order to prevent such 
consequences, it may be presumed that the fact that the court has ordered the 
return of the child is a fact which demonstrates that the child’s residence in the 
REQUEST FOR A PRELIMINARY RULING OF 10. 11. 2020 – CASE C-644/20 
 
8  
State of retention is only temporary in nature and, consequently, by reason of this 
temporary [Or. 9] nature, cannot be considered habitual residence. This would 
justify the conclusion that if a court orders the return of a child to the State where 
he or she was habitually resident immediately prior to the wrongful retention, the 
child’s residence in the State of retention does not result, under Article 3(2) of the 
Hague Protocol, in a change in the law applicable to the maintenance obligation. 
VI. Interpretation required for a ruling 
22 In the case at issue, Polish courts have jurisdiction pursuant to Article 5 of 
Regulation No 4/2009, since the defendant entered the dispute by filing a defence 
in which he did not raise a plea of lack of jurisdiction. 
23 In order to resolve the case, the law applicable to the maintenance obligation 
between the parties must be determined. In its judgment of 11 April 2019, the 
District Court in Piła applied Polish law in this respect. This law can only be 
applied if the applicants, despite their wrongful retention and the ruling ordering 
their return to the UK, acquired a habitual residence in Poland on account of their 
integration into the local social and family environment after their arrival in 2017, 
which justifies determining the applicable law under Article 3(2) of the Hague 
Protocol. 
24 However, in the case at issue it is not possible to determine whether Polish law 
applies on the basis of the specific connecting factors provided for in Article 4 of 
the Hague Protocol, since this would require the assumption that the applicants’ 
habitual residence is still in the UK. In this situation, there are no grounds for 
establishing that the applicants could not obtain a maintenance allowance from the 
defendant under the law of that State. Therefore, at the present stage of the 
proceedings it is not possible to apply Polish law under Article 4(2) of the Hague 
Protocol as the law of the forum, or under Article 4(4) of the Hague Protocol as 
the law of the State of common nationality of the parties. Nor is Article 4(3) of the 
Hague Protocol (where the creditor has seised the competent authority of the State 
where the debtor has his habitual residence) applicable to the case at issue, since 
the defendant’s habitual residence is in the UK, which also rules out the 
possibility of using Polish law as the law of the forum. 
[Or. 10] 
25 Nor is the application of Polish law is justified by the parties’ choice. Although 
this possibility is provided for in Article 7 of the Hague Protocol, there are no 
grounds for establishing that the parties have chosen Polish law as applicable in 
the manner set forth in Article 7(2) of the Hague Protocol before initiating the 
proceedings. Therefore, the Regional Court has taken steps of its own motion to 
determine whether the parties, solely for the purposes of these proceedings, wish 
to designate Polish law as applicable to the maintenance obligation between them. 
This would allow the adoption of Polish law as applicable under Article 7(1) of 
the Hague Protocol, since proceedings between the parties are conducted before a 
W. J. 
 
9 
Polish court. The applicants’ submission of 25 August 2020 was accompanied by 
their mother’s statement that for the purposes of these proceedings Polish law was 
selected as applicable to the dispute. In turn, the relevant request to the defendant, 
which was made twice, remained unanswered. In this situation it must be 
concluded that the defendant has not expressly chosen the applicable law of the 
State in which the proceedings concerning the maintenance obligation imposed on 
him are pending. On the other hand, the partial acceptance of claim submitted by 
the defendant in his defence cannot be classified as constituting a choice of law, as 
Article 7(1) of the Hague Protocol requires an express designation of applicable 
law, and therefore this law cannot be designated implicitly by way of accepting 
the claim. In addition, in his appeal, the defendant effectively revoked his 
acceptance of claim. 
26 On the other hand, were it to be accepted that in the event of wrongful retention 
and where a court orders the child’s return to the State of origin, the child cannot 
acquire a new habitual residence in the State of retention, the law applicable to the 
maintenance obligation in question would, under Article 3(1) of the Hague 
Protocol, be UK law as the law of the State in which the applicants’ habitual 
residence may continue. In that case it would be necessary, as provided for in 
Polish procedural law, to amend the judgment appealed against by the defendant 
due to the application in that judgment of Polish law as applicable to the 
maintenance obligation between the parties. 
[…]