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Nombre del caso
Mercredi v. Chaffe (C-497/10 PPU)
Referencia INCADAT
HC/E/FR 1044
Tribunal
Tribunal de Justicia de la Unión Europea (TJUE)
Estados involucrados
Reino Unido - Inglaterra y Gales
Francia
Fallo
22 December 2010
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Residencia habitual - art. 3 | Derechos de custodia - art. 3 | Reglamento Bruselas II bis Reglamento (CE) No 2201/2003 del Consejo
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Arts. 2(9), 8, 10, 13, 16, 19 del Reglamento Bruselas II bis Reglamento (CE) nº 2201/2003 del Consejo
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INCADAT comentario
Objetivos y ámbito de aplicación del Convenio
Residencia habitual
Interrelación con instrumentos internacionales y regionales y Derecho interno
Reglamento Bruselas II bis
SUMARIO
Sumario disponible en
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Facts
On Friday 9 October, having learnt of the child's departure, the father made an application by telephone to the duty High Court judge, who immediately made a location order. On 12 October the father filed applications, inter alia, for parental responsibility, shared residence and access.
That day the High Court made an order requiring the mother to return the child to England; the mother did not have notice of the application and therefore was neither present nor represented. The English judicial authorities considered themselves to be seised for the purposes of Article 16 of the Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003) on 12 October at the latest.
On 28 October the mother brought proceedings in Réunion for sole parental responsibility. On 18 December the father brought return proceedings in Réunion for the return of the child under the 1980 Hague Convention. On 15 March 2010 that application was dismissed on the basis that he did not have rights of custody.
The father's English proceedings came to trial in April 2010. On 15 April the High Court held that: it had become seised when the father telephoned the duty judge; from that time, it had rights of custody in respect of the child; the father also acquired such rights, orders having been made in his favour; and the child was still habitually resident in England at the time the court and the father acquired custodial rights.
On 23 June 2010 the mother was awarded sole parental responsibility in the Réunion proceedings. On 12 July 2010 the mother filed an appeal against the decisions of the High Court. On 8 October 2010 the Court of Appeal made an order requesting a preliminary ruling from the CJEU on the following questions:
"(1) Please clarify the appropriate test for determining the habitual residence of a child for the purpose of:
- Article 8 of … Regulation [No] 2201/2003;
- Article 10 of … Regulation [No] 2201/2003.
(2) Is a court an "institution or other body" to which rights of custody can be attributed for the purposes of the provisions of … Regulation [No] 2201/2003?
(3) Does Article 10 have a continuing application after the courts of the requested Member State have rejected an application for the return of the child under [the 1980 Hague Convention] on the basis that Articles 3 and 5 are not made out?
In particular, how should a conflict between a determination of the requested State that the requirements of Articles 3 and 5 of [the 1980 Hague Convention] are not met and a determination of the requesting State that the requirements of Articles 3 and 5 are met, be resolved? "
Ruling
Grounds
Habitual Residence - Art. 3
The Court noted that it was being requested to interpret the concept of habitual residence for the purposes of Articles 8 and 10 of the Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003). It acknowledged that there was no definition of the term in the Council Regulation and that the adjective "habitual" indicated that the residence must have "a certain permanence or regularity".
In the absence of any reference to Member State law, an independent and uniform European Union wide interpretation was required. This was to be determined in the light of the Regulation's provisions and the objective pursued by it, especially the reference in recital 12 that the instrument's jurisdictional bases were to be shaped in the light of the best interests of the child and in particular on the criterion of proximity.
Recalling Case C 523/07 Proceedings Brought by A [2009] ECR I 2805 [INCADAT Reference: HC/E/ 1000], the Court noted that habitual residence corresponded to the place which reflects some degree of integration by the child in a social and family environment. In making this determination reference must be made to the conditions and reasons for the child's stay, as well as to his nationality.
Moreover, in addition to physical presence other factors must make it clear that the child's presence is not in any way temporary or intermittent, and in this the intention of the person with parental responsibility to settle permanently with the child in another Member State may constitute an indicator of the transfer of habitual residence.
The Court held that to distinguish habitual residence from temporary presence, the former must have a certain duration which reflects an adequate degree of permanence, although there is no minimum duration. Before a habitual residence can be transferred, the person concerned must intend to establish his permanent or habitual centre of interests there. Consequently the duration of a stay can only be an indicator in the assessment of the permanence of the residence.
A child's social and family environment is fundamental in determining his place of habitual residence, whilst his age is also likely to be of particular importance. And so an infant will necessarily share the social and family environment of the circle of people on whom he is dependent. The environment of a young child is essentially a family environment determined by reference to the person(s) with whom the child lives.
In answering the first question the Court held that where the situation concerned was that of an infant who had been staying with her mother only a few days in a new Member State, to which she has been removed, the factors which were to be taken into consideration included, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother's move to that State and, second, with particular reference to the child's age, the mother's geographic and family origins and the family and social connections which the mother and child had with that Member State.
It was for the national court to establish the habitual residence of the child, taking account of all the circumstances of fact specific to each individual case.
Rights of Custody - Art. 3
The Court held that the Court of Appeal had not explained why it required an interpretation as to whether a court could be considered to be an "institution or other body" holding rights of custody. It further noted that as Article 10 was not applicable to the facts of the case, there was no need to address this issue.
Advocate General Cruz Villalón in his "view" proposed that a court of a Member State may be an "institution or other body" within the meaning of those provisions, to which rights of custody may be granted for the purposes of the provisions of that regulation, in so far as the legislation of that Member State provides for the grant of those rights of custody by operation of law.
Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)
The Court held it was clear that pursuant to Article 19 of the 1980 Hague Child Abduction Convention, the Réunion court order dismissing the father's return application had no effect on the merits of the rights of custody in respect of the child. Therefore were the English courts, applying the European interpretation of habitual residence, to find that they had jurisdiction under Article 8 of Council Regulation (EC) No 2201/2003 then any subsequent order would be unaffected by the earlier Réunion court order.
The Court further noted that the English courts had been seised in respect of parental responsibility before the French courts, therefore, under the lis pendens rule in Article 19 of Council Regulation (EC) No 2201/2003, the court in Réunion had no power to rule on the action brought by the mother.
Author of the summary: Peter McEleavy
INCADAT comment
Case C 523/07, A. [2099] E.C.R. I-2805 [INCADAT Reference: HC/E/ 1000] must be seen in light of this new ruling.
Habitual Residence
The interpretation of the central concept of habitual residence (Preamble, Art. 3, Art. 4) has proved increasingly problematic in recent years with divergent interpretations emerging in different jurisdictions. There is a lack of uniformity as to whether in determining habitual residence the emphasis should be exclusively on the child, with regard paid to the intentions of the child's care givers, or primarily on the intentions of the care givers. At least partly as a result, habitual residence may appear a very flexible connecting factor in some Contracting States yet much more rigid and reflective of long term residence in others.
Any assessment of the interpretation of habitual residence is further complicated by the fact that cases focusing on the concept may concern very different factual situations. For example habitual residence may arise for consideration following a permanent relocation, or a more tentative move, albeit one which is open-ended or potentially open-ended, or indeed the move may be for a clearly defined period of time.
General Trends:
United States Federal Appellate case law may be taken as an example of the full range of interpretations which exist with regard to habitual residence.
Child Centred Focus
The United States Court of Appeals for the 6th Circuit has advocated strongly for a child centred approach in the determination of habitual residence:
Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993) (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142]
Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) [INCADAT Reference: HC/E/US 935].
See also:
Villalta v. Massie, No. 4:99cv312-RH (N.D. Fla. Oct. 27, 1999) [INCADAT Reference: HC/E/USf 221].
Combined Child's Connection / Parental Intention Focus
The United States Courts of Appeals for the 3rd and 8th Circuits, have espoused a child centred approach but with reference equally paid to the parents' present shared intentions.
The key judgment is that of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) [INCADAT Reference: HC/E/USf 83].
See also:
Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/USf 530];
Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006) [INCADAT Reference: HC/E/USf 879].
In the latter case a distinction was drawn between the situation of very young children, where particular weight was placed on parental intention(see for example: Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT Reference: HC/E/USf 808]) and that of older children where the impact of parental intention was more limited.
Parental Intention Focus
The judgment of the Federal Court of Appeals for the 9th Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT Reference: HC/E/USf 301] has been highly influential in providing that there should ordinarily be a settled intention to abandon an existing habitual residence before a child can acquire a new one.
This interpretation has been endorsed and built upon in other Federal appellate decisions so that where there was not a shared intention on the part of the parents as to the purpose of the move this led to an existing habitual residence being retained, even though the child had been away from that jurisdiction for an extended period of time. See for example:
Holder v. Holder, 392 F.3d 1009 (9th Cir 2004) [INCADAT Reference: HC/E/USf 777]: United States habitual residence retained after 8 months of an intended 4 year stay in Germany;
Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 780]: United States habitual residence retained during 32 month stay in Mexico;
Tsarbopoulos v. Tsarbopoulos, 176 F. Supp.2d 1045 (E.D. Wash. 2001) [INCADAT Reference: HC/E/USf 482]: United States habitual residence retained during 27 month stay in Greece.
The Mozes approach has also been approved of by the Federal Court of Appeals for the 2nd and 7th Circuits:
Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005) [INCADAT Reference: HC/E/USf 776];
Koch v. Koch, 450 F.3d 703 (2006 7th Cir.) [INCADAT Reference: HC/E/USf 878].
It should be noted that within the Mozes approach the 9th Circuit did acknowledge that given enough time and positive experience, a child's life could become so firmly embedded in the new country as to make it habitually resident there notwithstanding lingering parental intentions to the contrary.
Other Jurisdictions
There are variations of approach in other jurisdictions:
Austria
The Supreme Court of Austria has ruled that a period of residence of more than six months in a State will ordinarily be characterized as habitual residence, and even if it takes place against the will of the custodian of the child (since it concerns a factual determination of the centre of life).
8Ob121/03g, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 548].
Canada
In the Province of Quebec, a child centred focus is adopted:
In Droit de la famille 3713, No 500-09-010031-003 [INCADAT Reference: HC/E/CA 651], the Cour d'appel de Montréal held that the determination of the habitual residence of a child was a purely factual issue to be decided in the light of the circumstances of the case with regard to the reality of the child's life, rather than that of his parents. The actual period of residence must have endured for a continuous and not insignificant period of time; the child must have a real and active link to the place, but there is no minimum period of residence which is specified.
Germany
A child centred, factual approach is also evident in German case law:
2 UF 115/02, Oberlandesgericht Karlsruhe [INCADAT Reference: HC/E/DE 944].
This has led to the Federal Constitutional Court accepting that a habitual residence may be acquired notwithstanding the child having been wrongfully removed to the new State of residence:
Bundesverfassungsgericht, 2 BvR 1206/98, 29. Oktober 1998 [INCADAT Reference: HC/E/DE 233].
The Constitutional Court upheld the finding of the Higher Regional Court that the children had acquired a habitual residence in France, notwithstanding the nature of their removal there. This was because habitual residence was a factual concept and during their nine months there, the children had become integrated into the local environment.
Israel
Alternative approaches have been adopted when determining the habitual residence of children. On occasion, strong emphasis has been placed on parental intentions. See:
Family Appeal 1026/05 Ploni v. Almonit [INCADAT Reference: HC/E/Il 865];
Family Application 042721/06 G.K. v Y.K. [INCADAT Reference: HC/E/Il 939].
However, reference has been made to a more child centred approach in other cases. See:
decision of the Supreme Court in C.A. 7206/03, Gabai v. Gabai, P.D. 51(2)241;
FamA 130/08 H v H [INCADAT Reference: HC/E/Il 922].
New Zealand
In contrast to the Mozes approach the requirement of a settled intention to abandon an existing habitual residence was specifically rejected by a majority of the New Zealand Court of Appeal. See
S.K. v. K.P. [2005] 3 NZLR 590 [INCADAT Reference: HC/E/NZ 816].
Switzerland
A child centred, factual approach is evident in Swiss case law:
5P.367/2005/ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT Reference: HC/E/CH 841].
United Kingdom
The standard approach is to consider the settled intention of the child's carers in conjunction with the factual reality of the child's life.
Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT Reference: HC/E/UKe 2]. For academic commentary on the different models of interpretation given to habitual residence. See:
R. Schuz, "Habitual Residence of Children under the Hague Child Abduction Convention: Theory and Practice", Child and Family Law Quarterly Vol 13, No. 1, 2001, p. 1;
R. Schuz, "Policy Considerations in Determining Habitual Residence of a Child and the Relevance of Context", Journal of Transnational Law and Policy Vol. 11, 2001, p. 101.
Brussels II a Regulation
The application of the 1980 Hague Convention within the Member States of the European Union (Denmark excepted) has been amended following the entry into force 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, see:
Affaire C-195/08 PPU Rinau v. Rinau, [2008] ECR I 5271 [2008] 2 FLR 1495 [Référence INCADAT : HC/E/ 987];
Affaire C 403/09 PPU Detiček v. Sgueglia, [Référence INCADAT : HC/E/ 1327].
The Hague Convention remains the primary tool to combat child abductions within the European Union but its operation has been fine tuned.
An autonomous EU definition of ‘rights of custody' has been adopted: Article 2(9) of the Brussels II a Regulation, which is essentially the same as that found in Article 5 a) of the Hague Child Abduction Convention. There is equally an EU formula for determining the wrongfulness of a removal or retention: Article 2(11) of the Regulation. The latter embodies the key elements of Article 3 of the Convention, but adds an explanation as to the joint exercise of custody rights, an explanation which accords with international case law.
See: Case C-400/10 PPU J Mc.B. v. L.E, [INCADAT cite: HC/E/ 1104].
Of greater significance is Article 11 of the Brussels II a Regulation.
Article 11(2) of the Brussels II a Regulation requires that when applying Articles 12 and 13 of the 1980 Hague Convention that the child is given the opportunity to be heard during the proceedings, unless this appears inappropriate having regard to his age or degree of maturity.
This obligation has led to a realignment in judicial practice in England, see:
Re D. (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 A.C. 619 [INCADAT cite: HC/E/UKe 880] where Baroness Hale noted that the reform would lead to children being heard more frequently in Hague cases than had hitherto happened.
Re M. (A Child) (Abduction: Child's Objections to Return) [2007] EWCA Civ 260, [2007] 2 FLR 72, [INCADAT cite: HC/E/UKe 901]
The Court of Appeal endorsed the suggestion by Baroness Hale that the requirement under the Brussels II a Regulation to ascertain the views of children of sufficient age of maturity was not restricted to intra-European Community cases of child abduction, but was a principle of universal application.
Article 11(3) of the Brussels II a Regulation requires Convention proceedings to be dealt with within 6 weeks.
Klentzeris v. Klentzeris [2007] EWCA Civ 533, [2007] 2 FLR 996, [INCADAT cite: HC/E/UKe 931]
Thorpe LJ held that this extended to appeal hearings and as such recommended that applications for permission to appeal should be made directly to the trial judge and that the normal 21 day period for lodging a notice of appeal should be restricted.
Article 11(4) of the Brussels II a Regulation provides that the return of a child cannot be refused under Article 13(1) b) of the Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his return.
Cases in which reliance has been placed on Article 11(4) of the Brussels II a Regulation to make a return order include:
France
CA Bordeaux, 19 janvier 2007, No 06/002739 [INCADAT cite: HC/E/FR 947];
CA Paris 15 février 2007 [INCADAT cite: HC/E/FR 979].
The relevant protection was found not to exist, leading to a non-return order being made, in:
CA Aix-en-Provence, 30 novembre 2006, N° RG 06/03661 [INCADAT cite: HC/E/FR 717].
The most notable element of Article 11 is the new mechanism which is now applied where a non-return order is made on the basis of Article 13. This allows the authorities in the State of the child's habitual residence to rule on whether the child should be sent back notwithstanding the non-return order. If a subsequent return order is made under Article 11(7) of the Regulation, and is certified by the issuing judge, then it will be automatically enforceable in the State of refuge and all other EU-Member States.
Article 11(7) Brussels II a Regulation - Return Order Granted:
Re A. (Custody Decision after Maltese Non-return Order: Brussels II Revised) [2006] EWHC 3397 (Fam.), [2007] 1 FLR 1923 [INCADAT cite: HC/E/UKe 883]
Article 11(7) Brussels II a Regulation - Return Order Refused:
Re A. H.A. v. M.B. (Brussels II Revised: Article 11(7) Application) [2007] EWHC 2016 (Fam), [2008] 1 FLR 289, [INCADAT cite: HC/E/UKe 930].
The CJEU has ruled that a subsequent return order does not have to be a final order for custody:
Case C-211/10 PPU Povse v. Alpago, [INCADAT cite: HC/E/ 1328].
In this case it was further held that the enforcement of a return order cannot be refused as a result of a change of circumstances. Such a change must be raised before the competent court in the Member State of origin.
Furthermore abducting parents may not seek to subvert the deterrent effect of Council Regulation 2201/2003 in seeking to obtain provisional measures to prevent the enforcement of a custody order aimed at securing the return of an abducted child:
Case C 403/09 PPU Detiček v. Sgueglia, [INCADAT cite: HC/E/ 1327].
For academic commentary on the new EU regime see:
P. McEleavy ‘The New Child Abduction Regime in the European Community: Symbiotic Relationship or Forced Partnership?' [2005] Journal of Private International Law 5 - 34.