The habitual residence of the child*

Habitual residence is the general criterion under the judicial cooperation instruments in civil matters within the EU developed in order to identify the court having jurisdiction to decide on matters concerning cases in which children under the age of 18 are involved (such as the discipline of the right of access by the non-custodial parent pursuant to Regulation (EC) No 2201/2003, or the determination of maintenance obligations towards the child under the age of 18 pursuant to Regulation (EC) No 4/2009). Even in the absence of an express definition, habitual residence is to be understood as an autonomous notion, to be identified by scrutinising at all the elements of the case at stake. The Court of Justice of the European Union has provided for examples and useful elements for the legal practitioner to identify the habitual residence under Art. 8 of Regulation (EC) No 2201/2003 on matrimonial matters and the matters of parental responsibility (so-called “Brussels II bis”) with a twofold objective: the ensuring of the best interests of the child, conformed to the criterion of proximity, as well as the uniform and effective application of the related jurisdiction rules over the territory of the Member States. Habitual residence criterion is also used in certain instruments of uniform private international law rules developed in the context of the Hague Conference on Private International Law, such as the 1980 Convention on International Child Abduction and the 1996 Convention on Parental Responsibility and Measures for the Protection of Children: the latter, in particular, contains conflict-of-law rules aimed at designating the applicable law by providing for the habitual residence as a general connecting factor.

The habitual residence of the child under Art. 8 of Regulation (EC) No 2201/2003 on matrimonial matters and the matters of parental responsibility (so-called “Brussels II bis”).

Introduction

The uniform application of EU law and the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union, having regard to the context of the provision and the objective pursued by the legislation in question (judgments of 2 April 2009, A., C-523/07, EU:C:2009:225, paragraph 34, and of 22 December 2010, C-497/10 PPU, Mercredi, EU:C:2010:829, paragraph 45).

Art. 8 of the Brussels II bis Regulation establishes the general rule of jurisdiction in the matters of parental responsibility, so that this provision occupies a central position within the scheme of jurisdiction rules established by the aforementioned Regulation in that area (judgment of 17 October 2018, UD, C-393/18 PPU, EU:C:2018:835, paragraph 55).

Objectives

The habitual residence criterion under this Regulation was elaborated with the aim of complying with the best interests of the child, favouring for this purpose the criterion of proximity, in the light of Recital 12 of the same Regulation (judgment of 15 February 2017, W, C‑499/15, EU:C:2017:118, paragraph 51).

Elements to determine it

-the adjective “habitual” indicates that the residence must have a certain permanence or regularity (judgment of 22 December 2010, C-497/10 PPU, Mercredi, EU:C:2010:829, paragraph 44);

-at least, the physical presence of the child must exist in a Member State, demonstrating that this presence is not temporary or intermittent (judgments of 2 April 2009, A., C-523/07, EU:C:2009:225, paragraph 38, and of 22 December 2010, C-497/10 PPU, Mercredi, EU:C:2010:829, paragraph 49, and of 9 October 2014, C, C‑376/14 PPU, EU:C:2014:2268, paragraph 51, and of 8 June 2017, OL, C‑111/17 PPU, EU:C:2017:436, paragraph 43, and of 28 June 2018, HR, C‑512/17, EU:C:2018:513, paragraph 41);

-in addition to the physical presence of the child in a Member State, other additional elements must demonstrate that this presence is not in any way temporary or intermittent (judgment of 2 April 2009, A., C‑523/07, EU:C:2009:225, paragraph 38);

-the duration, regularity, conditions and reasons for the stay on the territory of a Member State and 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 must be taken into consideration (judgment of 2 April 2009, A., C‑523/07, EU:C:2009:225, paragraph 39);

-the social and family environment of the child, which is fundamental in determining the place where the child is habitually resident, comprises various factors which vary according to the age of the child. The factors to be taken into account in the case of a child of school age are thus not the same as those to be considered in the case of a child who has left school and are again not the same as those relevant to an infant baby (judgment of 22 December 2010, C-497/10 PPU, Mercredi, EU:C:2010:829, paragraph 53);

-the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of (judgment of 22 December 2010, C-497/10 PPU, Mercredi, EU:C:2010:829, paragraph 54);

-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 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 (judgment of 22 December 2010, C-497/10 PPU, Mercredi, EU:C:2010:829, paragraph 55);

-the intention of the person with parental responsibility to settle permanently with the child in another Member State, manifested by certain tangible steps, may constitute an indicator of the transfer of the habitual residence: however, in the absence of the child’s physical presence in the Member State concerned, it is not possible to give decisive importance to the intentional element (judgment of 17 October 2018, UD, C-393/18 PPU, EU:C:2018:835, paragraph 62);

-in order to distinguish habitual residence from mere temporary presence, the former must as a general rule have a certain duration which reflects an adequate degree of permanence. However, the Regulation does not lay down any minimum duration. Before habitual residence can be transferred to the host State, it is of paramount importance that the person concerned has it in mind to establish there the permanent or habitual centre of his interests. Therefore, the duration of a stay can serve only as an indicator in the assessment of the permanence of the residence, and that assessment must be carried out in the light of all the circumstances of fact specific to the individual case (judgment of 22 December 2010, C-497/10 PPU, Mercredi, EU:C:2010:829, paragraph 51);

-circumstances such as the father’s coercion of the mother or the infringement of the fundamental rights of the mother or the child have no impact (judgment of 17 October 2018, UD, C-393/18 PPU, EU:C:2018:835).

Ester di Napoli

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*The English translation is provided for by the Aldricus Editorial Board; the original version by the author, in Italian, is available in this portal in the corresponding Italian section.