ECJ (Judgment) Urgent preliminary ruling procedure – Area of freedom, security and justice – Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Hague Convention of 25 October 1980 on the civil aspects of international child abduction – Concept of ‘habitual residence’ of a child following the divorce of its parents – Lawful removal of the child to another Member State – Wrongful retention
The French F had applied to the Irish Court for the return of children who had been taken to Ireland by M. There was an initial decision of the French court permitting relocation to Ireland, which had been appealed promptly. M had moved notwithstanding the pending appeal, a stay having been refused to F, and subsequently the French decision had been reversed by the appeal court. The Irish court was minded to find that the child had become at some stage habitually resident in Ireland, but referred several questions to the CJEU.
Held: (1) The initial removal to Ireland had not been wrongful, because of the then extant first instance decision permitting the move, (2) that the subsequent retention there after the French appellate decision might justify an order for return but (3) this would depend on whether by then the child was habitually resident in Ireland.
If habitual residence had by then been established in Ireland, there could be no order for return: ‘Article 11(1) of the Regulation [Brussels II Revised] . . provides that paragraphs 2-8 of that article are to apply where the holder of rights of custody applies to the competent authorities of a member state to deliver a judgment on the basis of the 1980 Hague Convention in order to obtain the return of a child that has been wrongfully removed or retained ‘in a member state other than the member state where the child was habitually resident immediately before the wrongful removal or retention’. It follows that this is not the case if the child was not habitually resident in the member state of origin immediately before the removal or retention.’
Maciej Szpunar AG
C-376/14, [2014] EUECJ C-376/14, [2014] EUECJ C-376/14 – V, [2015] 1 FAM 116, [2015] 1 FCR 496, [2015] CEC 686, ECLI:EU:C:2014:2268, [2015] 1 FLR 1, [2014] WLR(D) 415, [2014] Fam Law 1674, [2015] All ER (EC) 426, [2015] 2 WLR 59, [2015] ILPr 25
Bailii, Bailii, WLRD
Council Regulation (EC) No 2201/2003
European
Cited by:
Cited – AR v RN (Scotland) SC 22-May-2015
The court was asked whether it should order the return to France of two little girls who have been living with their mother in Scotland since July 2013. The issue arose under article 3 of the 1980 Hague Convention on the Civil Aspects of . .
Cited – Re C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 01 November 2021; Ref: scu.537472