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This case concerned a child of dual French-Polish nationality. The family, Polish mother and French father, habitually resided in France. Both parents had joint custody over the child. On 2 May 2017, the mother left France with the child, then aged 2 and a half, to go to Poland. The father had agreed to a short stay in Poland, but the mother decided not to return to France as agreed. On 22 May 2018, the father brought the child back to France without the mother’s consent. On 2 June 2018, the mother brought the child to Poland again, without the father’s consent.

On 19 October 2018, the father started proceedings in Poland under the 1980 Convention to obtain the return of the child. On 13 February 2019, the father brought the child to France again, without the mother’s consent. On 15 February 2019, the Court of Krakow in Poland issued a travel ban for the child, prohibiting further travel without the approval of both parents. On 15 March 2019, the same court closed the return proceedings, as the child was no longer in Poland.

On 21 March 2019, the mother brought proceedings against the father under the 1980 Convention to obtain the return of the child to Poland. On 23 May 2019, the Family District Court (juge au affaires familiales du tribunal de grande instance) of Grenoble refused to order the return of the child to Poland. This decision was upheld by  the Court of Appeal (cour d’appel) of Grenoble on 23 October 2019, considering that the removal of the child by the father on 13 February 2019 was not wrongful. The mother appealed this decision before the Supreme Court (Cour de cassation).

Appeal dismissed. The Supreme Court upheld the Court of Appeal’s ruling and confirmed that the father’s removal of the child from Poland to France on 13 February 2019 was not wrongful.

Habitual Residence - Art. 3

The mother claimed that the child had settled in Poland, having lived there from 2 May 2017 to 13 February 2019, resulting in a change of habitual residence. She alleged that the father had filed a request for return before the Polish Central Authority more than a year after the departure of the child from France.

The Supreme Court started by mentioning the case law from the Court of Justice of the European Union (CJEU), including Mercredi C-497/10 PPU of 22 December 2010, regarding the definition of habitual residence of the child and recalled that the courts of the State of habitual residence retain their jurisdiction over the child in cases of wrongful removal or retention, in light with Art. 10 of Council Regulation (EC) No 2201/2003 of 27 November 2003 and CJEU case law.

The Supreme Court held that the mother could not rely on the inaction of the father to promptly file a return decision with the Polish Central Authority, nor could she rely on the claims that the child had since settled in Poland, given that such a settlement was the result of her own unilateral actions, which were deemed wrongful as they were in violation of the father’s rights of custody. The Court noted that, before the child was brought to Poland at 2.5 years old, the child was integrated in France, the parents having both lived and worked there for 10 years. The Court found that the father had only agreed to the child going to Poland temporarily and underlined that the father had initiated return proceedings in October 2018, less than 1 year after the mother expressed her intentions to permanently stay in Poland at the beginning of 2018.