ECJ Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Matrimonial matters and parental responsibility – Child whose parents are not married – Concept of ‘habitual residence’ of an infant – Concept of ‘rights of custody’.
A two month old baby born in England to unmarried parents and removed by her French mother to the French island of La Reunion. The English court made orders for her return four days later. But proceedings in France under the Hague Child Abduction Convention failed because the father did not have rights of custody. Was the child habitually resident in England and Wales when the orders were first made?
Held: The court applied the principle in A. the child’s age is liable to be of particular importance. Normally it is the social and family environment of the child which is fundamental in determining habitual residence. But where the child concerned is an infant: ‘. . An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. Consequently, where . . . the infant is in fact looked after by her mother, it is necessary to assess the mother’s integration in her social and family environment. In that regard, the tests stated in the court’s case law, such as the reasons for the move by the child’s mother to another member state, the languages known to the mother or again her geographic and family origins may become relevant.’
. . And: ‘The concept of ‘habitual residence’ . . must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a member state – other than that of her habitual residence – to which she has been removed, the factors which must be taken into consideration include, 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 have with that member state.’
A. Tizzano, P
C-497/10, [2010] EUECJ C-497/10, [2010] EUECJ C-497/10F, ECLI:EU:C:2010:829, [2011] ILPr 23, [2011] Fam Law 351, [2012] Fam 22, [2011] 1 FLR 1293, [2011] 3 WLR 1229
Bailii, Bailii
Regulation (EC) No 2201/2003
European
Cited by:
At ECJ – Mercredi v Chaffe CA 17-Mar-2011
. .
Cited – DL v EL CA 16-Jul-2013
M had returned to the UK with her child on the strength of a US court order. F appealed successfully and now sought an order from the UK court for the return of the child.
Held: F’s appeal against refusal of an order failed. Acting under the . .
Cited – Re KL (A Child) SC 4-Dec-2013
How should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction which is later over-turned on appeal? K was a . .
Cited – DL v EL (Hague Abduction Convention: effect of reversal of return order on appeal) FD 17-Jan-2013
F sought the return of his son K to the US. K had been brought here by M after a court order in the US,but the father subsequently appealed sucessfully, obtaining an order for K’s return. M said that the UK court had originally and correctly found K . .
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 – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Cited – Re B (A Child) SC 3-Feb-2016
Habitual Residence of Child not lost
(Orse In re B (A Child) (Reunite International Child Abduction Centre intervening)) The Court considered the notion of habitual residence. The British girl with same sex parents had been taken to Pakistan, and her mother here sought her return. The . .
Lists of cited by and citing cases may be incomplete.
Children
Leading Case
Updated: 02 November 2021; Ref: scu.427715