ECJ judgement of 22.12.2010 - Case C-497/10
Central standards: Articles 8 and 10 Brussels IIa Regulation
[Ordinary residence for legally incompetent persons (child)]
Guiding principle (processed):
For the purposes of Articles 8 and 10 of the Brussels IIa Regulation, the term „habitual residence“ must be interpreted as meaning the place where a certain degree of integration of the child into a social and family environment can be recognised. In the case of an infant who has been removed to a Member State other than that of his habitual residence and who has been there with his mother for only a few days, account must be taken, inter alia, of the duration, regularity and circumstances of the stay in the territory of that Member State and the reasons for that stay and the mother's move to that State and, secondly, in particular because of the child's age, the geographical and family origins of the mother and the family and social ties of the mother and the child in the Member State concerned. It is for the national court to determine the habitual residence of the child, taking into account all the factual circumstances of the individual case.
For the reasons:
To the first question
41 By its first question, the referring court asks, in essence, how the concept of „habitual residence“ must be interpreted for the purposes of Articles 8 and 10 of the Regulation in order to determine which court has jurisdiction to rule on questions relating to rights of custody, in particular where, as in the main proceedings, the case concerns an infant who is lawfully removed by his mother to a Member State other than that of his habitual residence and has been there for only a few days at the time the court of the Member State of origin is seised.
42 In that regard, it should be noted, first, that, under Article 8(1) of the Regulation, the jurisdiction of the court of a Member State to give judgements relating to parental responsibility for a child who lawfully moves to another State is to be determined on the basis of the criterion of the habitual residence of that child at the time the application is made, that is to say, at the time the court concerned is seised.
43 Under Article 16 of the Regulation, a court is to be deemed to be seised only if a document instituting the proceedings or an equivalent document has been lodged with it. According to the findings in paragraph 24 of the present judgment, the court concerned was seised by Mr Chaffe in the person of Mr Holman, the Duty High Court Judge, on 9 October 2009 by telephone only. Accordingly, the High Court of Justice of England and Wales was not deemed to have been seised until 12 October 2009, subject, as stated in paragraph 26 of the present judgment, to verification by the referring court that the applicant had not subsequently failed to take the steps he was required to take to effect service of the document on the defendant. At that time, Chloé, who arrived on Reunion Island on 8 October 2009, had been in that French department for four days.
44 The Regulation does not contain a definition of the term „habitual residence“. It can only be concluded from the use of the adjective „habitual“ that the residence must have a certain permanence or regularity.
45 According to settled case-law, it follows from the requirements of both the uniform application of European Union law and the principle of equality that the terms of a provision of European Union law which does not expressly refer to the law of the Member States for the purpose of determining its meaning and scope must, as a general rule, be given an autonomous and uniform interpretation throughout the European Union, having regard to the context of the provision and the objective pursued by the legislation in question (see inter alia, Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C-98/07 Nordania Finans and BG Factoring [2008] ECR I-1281, paragraph 17; and Case C-523/07 A [2009] ECR I-2805, paragraph 34).
46 Since the articles of the Regulation in which the concept of „habitual residence“ appears do not expressly refer to the law of the Member States in order to determine the meaning and scope of that concept, the context of the provisions of the Regulation and their objective must be taken into account, as is apparent, in particular, from recital 12 in the preamble thereto, according to which the rules of jurisdiction laid down by the Regulation have been framed in accordance with the best interests of the child and, in particular, the criterion of proximity.
47 In order to ensure that the best interests of the child are taken into account as far as possible, the Court has already held that the concept of „habitual residence“ within the meaning of Article 8(1) of the Regulation is to be understood as the place where a certain degree of integration of the child into a social and family environment can be recognised. That place must be determined by the national court, taking into account all the specific factual circumstances of each individual case (see A, paragraph 44).
48 The criteria in the light of which the national court must determine the place of habitual residence of a child include, in particular, the circumstances and reasons for the child's residence in the territory of a Member State and the child's nationality (see A, paragraph 44).
49 Moreover, as the Court stated in paragraph 38 of the judgment in A, in order to determine a child's habitual residence, it must be apparent from factors other than the child's physical presence in a Member State that that presence is not merely temporary or occasional.
50 In that context, the Court has emphasised that the intention of the parents to settle with the child in another Member State, manifested in certain external circumstances such as the purchase or rental of a dwelling in the host Member State, may constitute evidence of a transfer of habitual residence (see A, paragraph 40).
51 In this respect, in order to distinguish habitual residence from a mere temporary presence, it should be noted that habitual residence must generally be of a certain duration in order to be sufficiently stable. However, the regulation does not stipulate a minimum duration. The decisive factor for the transfer of habitual residence to the host state is, above all, the intention of the person concerned to establish the permanent or habitual centre of his interests there with the intention of giving it permanence. The duration of a residence can therefore only serve as an indication in the assessment of its permanence, which must be made in the light of all the particular factual circumstances of the individual case.
52 Moreover, in the main proceedings, the age of the child may be of particular importance.
53 The social and family environment of the child, which is essential for determining the place of habitual residence, consists of different factors depending on the age of the child. For example, different factors must be taken into account in the case of a child of compulsory school age than in the case of a minor who no longer attends school or in the case of an infant.
54 In general, the environment of a child of a young age is largely a family environment, defined by the carer or carers with whom the child lives, who actually look after and care for the child.
55 This applies all the more if the child in question is an infant. It inevitably shares the social and family environment of the group of people on whom it is dependent. Consequently, where, as in the main proceedings, the infant is actually cared for by its mother, its integration into her social and family environment must be assessed. The criteria laid down in the case-law of the Court of Justice, such as the reasons for the mother's move to another Member State, her language skills or her geographical and family origins, may play a role in that assessment.
56 In the light of the foregoing, the answer to the first question is that, for the purposes of Articles 8 and 10 of the Regulation, the concept of „habitual residence“ must be interpreted as meaning the place where a certain degree of integration of the child into a social and family environment can be recognised. In the case of an infant who has been removed to a Member State other than that of his habitual residence and who has been there with his mother for only a few days, account must be taken, inter alia, of the duration, regularity and circumstances of the stay in the territory of that Member State and the reasons for that stay and the mother's move to that State and, secondly, in particular because of the age of the child, the geographical and family origins of the mother and the family and social ties of the mother and the child in the Member State concerned. It is for the national court to determine the habitual residence of the child, taking into account all the factual circumstances of the individual case.
57 If the application of the above criteria in the main proceedings leads to the conclusion that the habitual residence of the child cannot be established, the court having jurisdiction must be determined on the basis of the criterion of the „presence of the child“ within the meaning of Article 13 of the Regulation.
The second question
58 By its second question, the referring court asks, in essence, whether the concept of authority or other body to which rights of custody may be attributed for the purposes of the provisions of the Regulation must be interpreted as including a „court“ within the meaning of Article 2(1) of the Regulation.
59 In that regard, it should be noted that the referring court has not indicated in the context of which provisions of the Regulation it seeks an interpretation of that concept, nor has it explained the reasons why it needs that interpretation in order to deliver its judgment. That concept is used in Articles 10 and 11 of the Regulation. These provisions concern jurisdiction in cases of child abduction and are therefore applicable in cases of wrongful removal or retention of a child, whereas Article 9 of the Regulation concerns the lawful removal of a child from one Member State to another.
60 As stated in paragraph 23 of the present judgment, it is common ground that the transfer of Chloé to the island of La Réunion was lawful.
61 It follows that Article 10 of the Regulation cannot apply. Therefore, the second question does not need to be answered.
The third question
62 By its third question, the referring court asks, as is apparent in particular from paragraphs 1.4 and 4.6 of the order for reference, whether the decisions of a court of a Member State refusing an application for the immediate return of a child to the jurisdiction of a court of another Member State under the 1980 Hague Convention and relating to parental responsibility for that child have an effect on the decisions to be taken in the other Member State in proceedings relating to parental responsibility which were previously brought and are still pending there.
The judgement of the Tribunal de grande instance de Saint-Denis of 15 March 2010
63 As stated in paragraph 28 of the present judgment, the application brought by Chloé's father before the Tribunal de grande instance de Saint-Denis was based on the provisions of the 1980 Hague Convention, Article 1 of which seeks to ensure the immediate return of children wrongfully removed to or retained in a Contracting State.
64 The Tribunal de grande instance de Saint-Denis rejected the application by Chloé's father for her return to the United Kingdom „since it was not established that Mr Richard Chaffe had rights of custody at the time of the removal of young Chloé Mercredi which were actually exercised or would have been exercised but for the removal“.
65 In that regard, it should be noted that, under Article 19 of the 1980 Hague Convention, the judgment of the Tribunal de grande instance of 15 March 2010 is not to be regarded as a judgment relating to rights of custody, regardless of the fact that that judgment has become final, as stated in paragraph 28 of the present judgment.
66 It follows that, if the referring court, applying the criteria set out in the answer to the first question, were to find that it has jurisdiction under Article 8 of the Regulation to rule on parental responsibility for Chloé, the judgment of the Tribunal de grande instance de Saint-Denis of 15 March 2010 would have no effect on the decision to be taken by the referring court.
The judgement of the Tribunal de grande instance de Saint-Denis of 23 June 2010
67 As regards the judgment of the Tribunal de grande instance de Saint-Denis of 23 June 2010, which, as is apparent from paragraph 29 of the present judgment, is not yet final, it should be noted, first, that the referring court may be faced with the fact that the Tribunal de grande instance based its judgment not on the 1980 Hague Convention but also on the Regulation.
68 In such a case of conflict between two courts of different Member States before which proceedings relating to parental responsibility for a child have been brought on the basis of the Regulation in respect of the same claim, Article 19(2) of the Regulation applies. According to this provision, the court second seised shall stay the proceedings until the jurisdiction of the court first seised has been established.
69 As the High Court of Justice (England & Wales) was seised by the child's father on 12 October 2009 in proceedings aimed, inter alia, at giving him parental responsibility, the Tribunal de grande instance de Saint-Denis, seised by the child's mother on 28 October 2009, was not allowed to rule on her application.
70 It follows from the foregoing that, in the event that the referring court, applying the criteria set out in the answer to the first question, were to find that it has jurisdiction under Article 8 of the Regulation to rule on matters relating to parental responsibility for Chloé, neither the judgment of the Tribunal de grande instance de Saint-Denis of 15 March 2010 nor its judgment of 23 June 2010 would have any effect on the decision to be taken by the referring court.
71 Consequently, the answer to the third question must be that the decisions of a court of a Member State refusing an application for the immediate return of a child to the jurisdiction of a court of another Member State under the 1980 Hague Convention and relating to parental responsibility for that child do not affect the decisions to be taken in the other Member State in proceedings relating to parental responsibility which have previously been brought and are still pending there.