Opinion of the Advocate General — ECLI:EU:C:2018:749
Date: 2018-09-20
Language of the case: English
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Preliminary reference - urgent procedure
Origin: United Kingdom

Summary — Judgment of the Court (First Chamber), 17 October 2018 1. Questions referred for a preliminary ruling — Urgent preliminary ruling procedure — Conditions — Very young child — Risk of irreparable harm to the child’s development — Risk of detriment to the child’s integration in any future new family and social environment (Rules of Procedure of the Court of Justice, Art. 107) 2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Question seeking an interpretation of the jurisdiction rule in Article 8 of Regulation No 2201/2003 — Question raised concerning a dispute involving relations between the courts of a Member State and those of a third country — Included (Art. 267 TFEU; Council Regulation No 2201/2003, Art. 8(1)) 3. Judicial cooperation in civil matters — Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in matters of parental responsibility — Regulation No 2201/2003 — Concept of habitual residence of the child — Child who has never been physically present in the Member State — No habitual residence in that Member State — Birth which took place in a third country following the father’s coercion of the mother — Detention of the mother and child in a third country against the will of the mother — Breach of the fundamental rights of the mother and child — Irrelevant (Council Regulation No 2201/2003, Art. 8(1); 1. See the text of the decision. (see paras 26, 27) 2. See the text of the decision. (see paras 31-42) 3. Article 8(1) 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, must be interpreted to the effect that a child must have been physically present in a Member State in order to be regarded as habitually resident in that Member State, for the purposes of that provision. Circumstances such as those in the main proceedings, assuming that they are proven, that is to say, first, the fact that the father’s coercion of the mother had the effect of her giving birth to their child in a third country where she has resided with that child ever since, and, secondly, the breach of the mother’s or the child’s rights, do not have any bearing in that regard. In that regard, it is apparent from recital 12 of Regulation No 2201/2003 that that regulation was drawn up with the objective of meeting the best interests of the child, and to that end it favours the criterion of proximity. The EU legislature considered that the court geographically close to the child’s habitual residence is the court best placed to assess the measures to be adopted in the interests of the child. Article 8 of Regulation No 2201/2003 gives expression to that objective by establishing a general jurisdiction in relation to parental responsibility in favour of the courts of the Member State in which the child is habitually resident (judgment of 15 February 2017, W and V, C‑499/15, EU:C:2017:118, paragraph 52). The importance placed by the EU legislature on geographical proximity in order to determine the court which has jurisdiction in matters of parental responsibility is also apparent from Article 13(1) of Regulation No 2201/2003 which bases the jurisdiction of a court of a Member State solely on the fact that the child is present, precisely when the child’s residence could not be qualified as ‘habitual’, for the purposes of Article 8(1) of that regulation, in any Member State and that that jurisdiction may not be determined on the basis of Article 12 of that regulation. Thus, the Court has held that the recognition of a child’s habitual residence in a given Member State requires at least that the child has been physically present in that Member State (judgment of 15 February 2017, W and V, C‑499/15, EU:C:2017:118, paragraph 61). It follows from the considerations set out in paragraphs 45 to 52 above that physical presence in the Member State in which the child is allegedly integrated is a condition which necessarily must be satisfied before assessing the stability of that presence and that ‘habitual residence’, for the purposes of Regulation No 2201/2003, may not be established in a Member State which the child has never been to. That interpretation is supported by the position occupied by Article 8(1) of Regulation No 2201/2003 within the jurisdiction rules laid down by that regulation in matters of parental responsibility. (see paras 48, 49, 51-54, 70, operative part)