C v M.
Date: 2014-10-09
34. In that regard, it is clear, first, that the reference for a preliminary ruling concerns the interpretation of the Regulation, which was adopted in particular on the basis of Article 61(c) EC, now Article 67 TFEU, which is in Title V of Part Three of the FEU Treaty, relating to the area of freedom, security and justice, and consequently that reference falls within the scope of the urgent preliminary ruling procedure defined in Article 107 of the Rules of Procedure.
40. Such an action, whose object is the return, to the Member State of origin, of a child who has been wrongfully removed or retained in another Member State, does not concern the substance of parental responsibility and therefore has neither the same object nor the same cause of action as an action seeking a ruling on parental responsibility (see judgment in Purrucker , C‑296/10, EU:C:2010:665, paragraph 68). Further, according to Article 19 of the 1980 Hague Convention, a decision under that convention concerning return is not to be taken to be a determination on the merits of any custody issue. There can therefore be no lis pendens  between such actions.
50. As regards the concept of ‘habitual residence’, the Court has previously stated, in interpreting Article 8 of the Regulation in the judgment in A  (EU:C:2009:225) and Articles 8 and 10 of the Regulation in the judgment in Mercredi  (EU:C:2010:829), that the Regulation contains no definition of that concept and has held that 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 (judgments in A , EU:C:2009:225, paragraphs 31 and 35, and Mercredi,  EU:C:2010:829, paragraphs 44 and 46).
51. In those judgments the Court also held that 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 (judgments in A , EU:C:2009:225, paragraphs 37 and 44, and Mercredi , EU:C:2010:829, paragraphs 47 and 56). The Court held in that regard that, 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 (judgments in A , EU:C:2009:225, paragraphs 38 and 44, and Mercredi , EU:C:2010:829, paragraphs 47, 49 and 56).
52. The Court explained that, 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 (judgments in A , EU:C:2009:225, paragraphs 39 and 44, and Mercredi , EU:C:2010:829, paragraphs 48, 49 and 56). The Court also held that 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 (see the judgments in A , EU:C:2009:225, paragraphs 40 and 44, and Mercredi , EU:C:2010:829, paragraph 50).
53. Further, in paragraphs 51 to 56 of the judgment in Mercredi  (EU:C:2010:829), the Court held that 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, and set out the factors which are particularly to be taken into account when the child is young.
54. The concept of the child’s ‘habitual residence’ in Article 2(11) and in Article 11 of the Regulation cannot differ in content from that elucidated in the abovementioned judgments with regard to Articles 8 and 10 of the Regulation. Accordingly, it follows from the considerations set out in paragraphs 46 to 53 of this judgment that 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 and Article 11 of the Regulation, 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 provided in those judgments.
66. On the latter hypothesis, it must be borne in mind that, in accordance with recital 21 in the preamble to the Regulation, the Regulation is based on the conception that the recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and grounds for non-recognition should be kept to the minimum required (judgment in Rinau , C‑195/08 PPU, EU:C:2008:406, paragraph 50).
67. 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 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. The reason is that 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.