EUPillar C-497/10 PPU Barbara Mercredi v Richard Chaffe (First Chamber) [2010] ECR I-14309

Summary

A two months old French child of an unmarried French mother and British father went with her mother from the UK to the French island of Réunion. The father did not have rights of custody but he quickly made a telephone application to the High Court and immediately obtained a location order. The father then made emergency ex parte applications for parental responsibility, shared residence and access rights. A few weeks later, the mother brought proceedings in Réunion for exclusive parental responsibility. The father then initiated return proceedings in Réunion for the return of the child under the 1980 Hague Abduction Convention. His application was dismissed on the basis that he did not have rights of custody when the child left the UK. The court in Réunion then awarded the mother exclusive parental responsibility. In the meantime, the English court had decided that it had become seised of the matter when the father telephoned the court and, from that moment, it had rights of custody in respect of the child. The court further ruled that the father also held rights of custody over the child as orders had been made in his favour, and that the child was still habitually resident in England at the time the court and the father acquired custody rights. The mother appealed and the Court of Appeal sought a preliminary ruling from the CJEU on the following three questions: 1.) the appropriate test for determining the habitual residence of a child; 2.) whether the court was an ‘institution or other body’ to which rights of custody could be attributed; and 3.) whether Art 10 of Brussels IIa had a continuing application after the courts of the requested State had rejected an application for the return of the child on the basis that Arts 3 and 5 of the Hague Convention were not made out. In relation to question 2 the Court noted that it was agreed that the removal of the child was lawful and it followed that Article 10 of the Regulation did not apply. It was therefore unnecessary to reply to the second question. In relation to questions 1 and 3 the Court ruled as follows: a.) As a preliminary issue, under Art 16 of the Regulation, a court can be deemed to be seised only if a document instituting proceedings was lodged with that court. Accordingly, the English court was not seised when the father made his telephone application but only three days later when he made his application in writing; b.) Habitual residence has to be determined at the date the court is seised. In this case that was four days after the child arrived in Réunion. Such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. The environment of a young child is essentially a family environment determined by reference to the person(s) with whom the child lives (in this case the child had lived only with the mother from one week after she was born). The factors to be taken into consideration included, first, the duration, regularity, conditions and reasons for the stay in the State where the child is present 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. It was for the national court to establish the habitual residence of the child, on the basis of the specific circumstances of the individual case; c.) If the application of the test for habitual residence were to lead to the conclusion that the child’s habitual residence could not be established, jurisdiction would have to be determined on the basis of the child’s physical presence (Art 13); d.) The Court noted that the English court had been seised in matters of parental responsibility before the Réunion court, therefore, pursuant to Art 19 of the Regulation (lis pendens), the English court must determine whether it has jurisdiction based on Art 8 of the Regulation.