Países Bajos - Reino en Europa
Tribunal de Apelaciones
Países Bajos - Reino en Europa
3 April 2019
Residencia habitual - art. 3
Apelación concedida, restitución ordenada
Two children wrongfully removed at age 1 – nationals of the Netherlands – married parents – father national of the Netherlands – mother national of the Netherlands – joint custody – children lived in Spain until 15 September 2018 - application for return filed with the court of the Hague on 16 November 2018 - return ordered – main issue: habitual residence, at any given time, a child can only have one place of habitual residence
The mother and father met in 2016 in Spain. At that time the father was renting an apartment in Spain and had de-registered from the Municipal Personal Records Database in the Netherlands in 2014. The father lead an international (business) life. For a while, the mother took care of the father’s two daughters from his previous relationship for a while in the father’s apartment in Spain when the father was being detained. The mother’s parents lived in Spain and the mother visited regularly over the years. In February 2017, the mother de-registered from the Municipal Personal Records Database in the Netherlands, where she stated ‘Spain’ as her residence abroad. She informed the Dutch Tax authorities and the authorities of her previous Dutch municipality of her address in Spain, and received mail from these authorities at that address. In that same period, the mother terminated her business in the Netherlands and de-registered from the Dutch Chamber of Commerce. The mother and the father registered in a Spanish municipality and with the Spanish Alien Police, shortly before the mother gave birth in July 2018. The couple also rented an apartment in the Netherlands. Whilst pregnant, the mother visited hospitals in both Spain and the Netherlands. By joint decision of the parents, the minors were born in Spain, and the mother lived virtually uninterruptedly in the apartment in Spain from May 2018 until she left for the Netherlands with the minors in September 2018.
Habitual residence. Court of Appeal seeks consistency with case law from other member states and abandons its own case law to find that a child cannot have two places of habitual residence at the same time. Decision of the District Court (first instance) overturned.
Although the District Court of The Hague interpreted the concept of habitual residence correctly, the Court of Appeal, unlike the District Court, is of the opinion that a minor cannot have two habitual residences at the same time. It has been argued in international jurisprudence that for the application of the Convention a minor can have more than one habitual residence. However, the majority of the case law in the Member States on the Convention seems to suggests otherwise. The Court of Appeal has decided to follow this case law of the other Member States and thus abandons its earlier case law (see Court of Appeal of The Hague, 27 July 2016, ECLI:NL:GHDHA:2016:2502). Based on the file documents and the hearing, the Court of Appeal concludes that the minors’ habitual residence can be determined in this case. The situation in which the habitual residence cannot be established does not occur here. The Court of Appeal is of the opinion that, immediately prior to their removal to the Netherlands in September 2018, the habitual residence of the minors and their mother was in Spain.
Author: Judith van Ravenstein