The European Court of Justice has given an important judgment in a case (C v M, case C-376/14 of 9 October 2014) on whether a 6 year old girl should live with her mother in Ireland or her father in France. The case discusses questions of some interest in relation to international child custody disputes. These questions include the concepts of wrongful removal or wrongful retention of a child and the concept of habitual residence.
The facts can be stated simply. The father and mother were married in France in May 2008. Within six months the child was born, the marriage had broken down and the mother had raised divorce proceedings in France.
The divorce was granted in April 2012. The court said that the child’s habitual residence was to be with the mother and expressly permitted her to set up residence in Ireland. The decisions on the child were declared to be enforceable on a provisional basis. The father appealed to the appeal court of Bordeaux against that ruling on 23 April 2012.
The mother moved to Ireland with the child in July 2012. On 5 May 2013 the appeal court of Bordeaux ordered that the child should reside with the father.
The father then raised different proceedings to try to get the child returned to France, the one of relevance here being an action before the High Court of Ireland seeking an order (under Article 12 of the 1980 Hague Convention on Child Abduction; Articles 10 and 11 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility; and the corresponding Irish laws) for the return of the child to France and a declaration that the mother had wrongfully retained the child in Ireland. The Irish High Court dismissed this action on the ground that the child was already habitually resident in Ireland by the time of the Bordeaux court’s decision, so that there was no question of wrongful retention in a country other than that of the habitual residence. The father appealed to the Irish Supreme Court. That court decided to stay the proceedings and to refer three questions to the European Court of Justice for a preliminary ruling.
‘(1) Does the existence of the French proceedings relating to the custody of the child preclude, in the circumstances of this case, the establishment of habitual residence of the child in Ireland?
(2) Does either the father or the French courts continue to maintain custody rights in relation to the child so as to render wrongful the retention of the child in Ireland?
(3) Are the Irish courts entitled to consider the question of habitual residence of the child in the circumstances where she has resided in Ireland since July 2012, at which time her removal to Ireland was not in breach of French law?’
On questions 1 and 3 the European Court of Justice held that the Irish courts were entitled, and indeed bound, to consider where the child was habitually resident immediately before the alleged wrongful retention. It observed that:
according to the definition of removal or retention given in Article 2(11) of the Regulation, in wording very similar to that of Article 3 of the 1980 Hague Convention, a removal or retention, before being considered wrongful within the meaning of the Regulation, must have taken place in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect, under the law of the Member State where the child was habitually resident immediately before the removal or retention.
The Court said that it followed from that definition that the identification of a wrongful removal or retention within the meaning of Article 2(11) of the Regulation presupposed that the child was habitually resident in the Member State of origin immediately before the removal or retention.
However, that was not the end of the matter. The Irish courts still had to determine whether or not the child had acquired a habitual residence in France by the time of the Bordeaux court’s ruling. Here the ECJ had some valuable observations on the concept of habitual residence. This is what it said in paragraphs 50 to 57 of its judgment.
50 As regards the concept of ‘habitual residence’, the Court has previously stated, in interpreting Article 8 of the Regulation in the judgment in A (EU:C:2009:225) and Articles 8 and 10 of the Regulation in the judgment in Mercredi (EU:C:2010:829), that the Regulation contains no definition of that concept and has held that the meaning and scope of that concept must be determined in the light of, in particular, the objective stated in recital 12 in the preamble to the Regulation, which states that the grounds of jurisdiction established in the Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity (judgments in A, EU:C:2009:225, paragraphs 31 and 35, and Mercredi, EU:C:2010:829, paragraphs 44 and 46).
51 In those judgments the Court also held that a child’s habitual residence must be established by the national court, taking account of all the circumstances of fact specific to each individual case (judgments in A, EU:C:2009:225, paragraphs 37 and 44, and Mercredi, EU:C:2010:829, paragraphs 47 and 56). The Court held in that regard that, in addition to the physical presence of the child in a Member State, other factors must also make it clear that that presence is not in any way temporary or intermittent and that the child’s residence corresponds to the place which reflects some degree of integration in a social and family environment (judgments in A, EU:C:2009:225, paragraphs 38 and 44, and Mercredi, EU:C:2010:829, paragraphs 47, 49 and 56).
52 The Court explained that, to that end, account must be taken of, inter alia, the duration, regularity, conditions and reasons for the stay in the territory of a Member State and for the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State (judgments in A, EU:C:2009:225, paragraphs 39 and 44, and Mercredi, EU:C:2010:829, paragraphs 48, 49 and 56). The Court also held that the intention of the parents or one of them to settle permanently with the child in another Member State, manifested by certain tangible steps such as the purchase or lease of a residence in that Member State, may constitute an indicator of the transfer of the child’s habitual residence (see the judgments in A, EU:C:2009:225, paragraphs 40 and 44, and Mercredi, EU:C:2010:829, paragraph 50).
53 Further, in paragraphs 51 to 56 of the judgment in Mercredi (EU:C:2010:829), the Court held that the duration of a stay can serve only as an indicator, as part of the assessment of all the circumstances of fact specific to each individual case, and set out the factors which are particularly to be taken into account when the child is young.
54 The concept of the child’s ‘habitual residence’ in Article 2(11) and in Article 11 of the Regulation cannot differ in content from that elucidated in the abovementioned judgments with regard to Articles 8 and 10 of the Regulation. Accordingly, it follows from the considerations set out in paragraphs 46 to 53 of this judgment that it is the task of the court of the Member State to which the child has been removed, when seised of an application for return on the basis of the 1980 Hague Convention and Article 11 of the Regulation, to determine whether the child was habitually resident in the Member State of origin immediately before the alleged wrongful removal or retention, taking into account all the circumstances of fact specific to the individual case, using the assessment criteria provided in those judgments.
55 When examining in particular the reasons for the child’s stay in the Member State to which the child was removed and the intention of the parent who took the child there, it is important, in circumstances such as those of the main proceedings, to take into account the fact that the court judgment authorising the removal could be provisionally enforced and that an appeal had been brought against it. Those factors are not conducive to a finding that the child’s habitual residence was transferred, since that judgment was provisional and the parent concerned could not be certain, at the time of the removal, that the stay in that Member State would not be temporary.
56 Having regard to the necessity of ensuring the protection of the best interests of the child, those factors are, as part of the assessment of all the circumstances of fact specific to the individual case, to be weighed against other matters of fact which might demonstrate a degree of integration of the child in a social and family environment since her removal, such as those mentioned in paragraph 52 of this judgment and, in particular, the time which elapsed between that removal and the judgment which set aside the judgment of first instance and fixed the residence of the child at the home of the parent living in the Member State of origin. However, the time which has passed since that judgment should not in any circumstances be taken into consideration.
57 In the light of all the foregoing, the answer to the first and third questions is that Articles 2(11) and 11 of the Regulation must be interpreted as meaning that where the removal of a child has taken place in accordance with a judgment which was provisionally enforceable and which was thereafter overturned by a judgment which fixed the residence of the child at the home of the parent living in the Member State of origin, the court of the Member State to which the child was removed, seised of an application for the return of the child, must determine, by undertaking an assessment of all the circumstances of fact specific to the individual case, whether the child was still habitually resident in the Member State of origin immediately before the alleged wrongful retention. As part of that assessment, it is important that account be taken of the fact that the judgment authorising the removal could be provisionally enforced and that an appeal had been brought against it.
On the second question referred for a preliminary ruling the ECJ pointed out that even if the Irish court concluded that the child had acquired a habitual residence in Ireland by 5 May 2013 so that the father did not obtain the return of the child under the strict child abduction rules he would still be able to seek enforcement of the Bordeaux court’s ruling under the normal rules on the recognition and enforcement of judgments relating to parental responsibility within the EU.
This case is both impressive and disturbing. It is impressive because the court was able to deal with the case relatively quickly under the special “urgent procedure”. The request for a preliminary ruling was received on 7 August 2014 and the ruling was given on 9 October 2014. The case is also impressive because of the way in which the court cut through the legal difficulties and came to clear and convincing conclusions. It is disturbing because of the sheer number and weight of the legal proceedings brought to bear on the simple issue of where a six year old child should live. One is left with the impression that there must be a better way of dealing with such matters.