Frostating lagmannsrett (Frostating Court of Appeal)
Knut Røstum, Jon Kapelrud, Ivar Sølberg
4 December 2013
Habitual Residence - Art. 3
1 child allegedly wrongfully removed at age 4 – National of Poland – Married parents – Father national of Poland – Mother national of Poland – Parents exercised joint rights of custody – Child lived in Norway until June 2012 and then Poland until December 2012 – Application for return filed with the Central Authority of Norway in December 2012 –Return refused – Main issue: Article 3 – habitual residence – the child was habitually resident in Norway and so the return to Norway from Poland did not constitute an unlawful removal.
The case concerned a child with Polish parents. The child was born in Poland in 2008, and the parents married in 2010. They had joint custody. In 2008, the whole family moved to Norway, where they purchased a plot of land and moved into a flat while they built a new house on the plot. The father, who had also previously lived in Norway in connection with his work, established his own firm in Norway in 2009. The family was also registered in the national population register, child benefit was received and the child was allocated a daycare place (although the place was not used until after the dispute arose). The family stayed in Norway from 2008 to 2012, but the family made several trips to Poland during this period, the length of which is disputed. In June 2012, the relationship between the parties broke down, and the mother took the child to Poland. In December 2012, once the father had found the mother and child in Poland, the father took the child back to Norway. The mother claimed that this act constituted an unlawful child abduction and applied for return to Poland in December 2012. The case was heard by Nordmøre District Court in February 2013, and the court concluded that the child should be returned to Poland. The father appealed to Frostating Court of Appeal.
The appeal was granted by unanimous ruling, and return was refused. The child was habitually resident in Norway at the time he was taken back by the father, and accordingly no unlawful child abduction had occurred. An appeal to the Supreme Court was dismissed and the case was not heard because the Supreme Court unanimously deemed it clear that the appeal could not succeed.
Author: Bjarte Wivestad Engesland, Higher Executive Officer, Royal Norwegian Ministry of Justice and Public Security
Since the mother had applied for return to Poland in 2012, the central question in the case was whether the child was habitually resident in Poland immediately prior to being taken to Norway by the father.
The court commented that the word “bosted” (meaning “place of recidence”) in section 11 of the Norwegian Child Abduction Act equates to habitual residence” in Article 3 of the Hague Convention. The court also found that the term habitual residence is not defined in the Child Abduction Act, but that it had been held “that the term has an objective aspect and a subjective aspect. The objective aspect is that the person is in fact staying in Norway [while] [t]he subjective aspect is that the person in question intends to initiate a permanent stay in Norway.”
In this case the court found that the family had planned to become resident in Norway when they moved in 2008, taking into account evidence such as the fact that the father had established a firm there, that the parties had begun work building a house, that child benefit had been paid for the child and that the parents had jointly applied for a daycare place.
The court found that the subsequent trips to Poland, the length of which were disputed by the parties, did not alter the family’s habitual residence and were sufficiently long to change the habitual residence of the child. The court therefore concluded that the child was habitually resident in Norway at the time the mother took him to Poland in June 2012.
Therefore, the fact that the father took the child to Norway in December 2012 in an act of self-enforcement did not constitute an unlawful child abduction. There were thus no grounds for return, and the father’s appeal was granted.