OL v PQ.
Date: 2017-06-08
33


In accordance with settled case-law, it is not the Court’s task to deliver advisory opinions on general or hypothetical questions (see judgment of 16 July 1992, Meilicke, C‑83/91, EU:C:1992:332, EU:C:1992:332, paragraph 25, and order of 11 January 2017, Boudjellal, C‑508/16, not published, EU:C:2017:6, paragraph 32).
34


Nonetheless, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. With this in mind, the Court may, where necessary, have to reformulate the questions referred to it (see, inter alia, judgment of 13 October 2016, M. and S., C‑303/15, EU:C:2016:771, paragraph 16 and the case-law cited).
40


Accordingly, the Court has repeatedly held that the concept is an autonomous one of EU law, which has to be interpreted in the light of the context of the provisions referring to that concept and the objectives of Regulation No 2201/2003, in particular that which is apparent from recital 12 thereof, according to which the grounds of jurisdiction which it establishes are shaped in the light of the best interests of the child, in particular on the criterion of proximity (see judgments of 2 April 2009, A, C‑523/07, EU:C:2009:225, paragraphs 34 and 35, and of 22 December 2010, Mercredi, C‑497/10 PPU, EU:C:2010:829, paragraphs 44 to 46).
41


Further, in accordance with the Court’s case-law, the meaning of the concept of ‘habitual residence’ in Regulation No 2201/2003 must be uniform. Accordingly, the interpretation given of that concept in the context of Articles 8 and 10 of that regulation, relating to the international jurisdiction of courts in matters of parental responsibility, can be transposed to Article 11(1) of that regulation (see, to that effect, judgment of 9 October 2014, C, C‑376/14 PPU, EU:C:2014:2268, paragraph 54).
42


According to that case-law, the ‘habitual residence’ of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment. That place must be established by the national courts, taking account of all the circumstances of fact specific to each individual case (judgments of 2 April 2009, A, C‑523/07, EU:C:2009:225, paragraphs 42 and 44, and of 22 December 2010, Mercredi, C‑497/10 PPU, EU:C:2010:829, paragraph 47).
43


To that end, in addition to the physical presence of a 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 such integration in a social and family environment (judgment of 2 April 2009, A, C‑523/07, EU:C:2009:225, paragraph 38).
44


Such factors include the duration, regularity, conditions and reasons for the child’s stay on the territory of a Member State and the child’s nationality (see, to that effect, judgment of 2 April 2009, A, C‑523/07, EU:C:2009:225, paragraph 39). In addition, the relevant factors vary according to the age of the child concerned (judgment of 22 December 2010, Mercredi, C‑497/10 PPU, EU:C:2010:829, paragraph 53).
45


Where the child in question is an infant, the Court has stated that the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of, and that an infant necessarily shares the social and family environment of that person or those persons. Consequently, where, as in the main proceedings, an infant is in fact taken care of by her mother, in a Member State other than that where the father habitually resides, the factors to be taken into consideration include, first, the duration, regularity, conditions and reasons for the mother’s stay in the territory of the former Member State and, second, the mother’s geographic and family origins and the family and social connections which the mother and child have with that Member State (see judgment of 22 December 2010, Mercredi, C‑497/10 PPU, EU:C:2010:829, paragraphs 54 to 56).
46


As regards the intention of the parents to settle permanently with the child in a Member State, the Court has recognised that that can also be taken into account, where that intention is manifested by certain tangible steps such as the purchase or lease of a residence in the host Member State (see, to that effect, judgment of 2 April 2009, A, C‑523/07, EU:C:2009:225, paragraph 40).
47


[As rectified by order of 12 June 2017] Thus, according to the Court’s case-law, the intention of the parents cannot as a general rule by itself be crucial to the determination of the habitual residence of a child, within the meaning of Regulation No 2201/2003, but constitutes an ‘indicator’ capable of complementing a body of other consistent evidence.
48


Admittedly, the weight to be given to that factor, for the purposes of determining where a child is habitually resident, depends on the circumstances specific to each individual case (see, to that effect, judgment of 22 December 2010, Mercredi, C‑497/10 PPU, EU:C:2010:829, paragraphs 50 and 51).
51


In that regard, first, it must be stated that the concept of ‘habitual residence’, within the meaning of Regulation No 2201/2003, reflects essentially a question of fact. Consequently, to take the position that the initial intention of the parents that a child should reside in one given place should take precedence over the fact that the child has continuously resided since birth in another State would be difficult to reconcile with that concept.
63


Admittedly, it is also an objective of the return procedure envisaged by the 1980 Hague Convention and Regulation No 2201/2003 that one of the parents cannot strengthen his or her position on the issue of custody with respect to the child by evading, by a wrongful act, the jurisdiction of the courts that are as a matter of principle designated, according to the rules laid down in particular by that regulation, to give a ruling on parental responsibility with respect to that child (see, to that effect, judgments of 23 December 2009, Detiček, C‑403/09 PPU, EU:C:2009:810, paragraph 49, and of 9 October 2014, C, C‑376/14 PPU, EU:C:2014:2268, paragraph 67).
65


Moreover, it must be made clear that a decision on the return or the non-return of the child does not settle the issue of rights of custody with respect to that child. Accordingly, a failure to succeed in a return procedure in the main proceedings is without prejudice to the father’s option of asserting his rights with respect to the child by means of proceedings on the substance of parental responsibility, brought before the courts with the relevant jurisdiction under the provisions of Regulation No 2201/2003, in the course of which a thorough examination of all the circumstances, including the conduct of the parents, may be carried out (see, by analogy, judgment of 5 October 2010, McB., C‑400/10 PPU, EU:C:2010:582, paragraph 58).
67


Moreover, it is more consistent with the criterion of proximity, prioritised by the EU legislature within Regulation No 2201/2003 precisely in order to ensure that the best interests of the child are taken into account, that any decisions concerning the child are taken by courts of the Member State in which the child has lived continuously since her birth (see, to that effect, judgments of 23 December 2009, Detiček, C‑403/09 PPU, EU:C:2009:810, paragraph 36, and of 15 July 2010, Purrucker, C‑256/09, EU:C:2010:437, paragraph 91).