Referring court and Member State
Ireland, Second Instance, Supreme Court
Summary
A child was born to a French father and a British mother in July 2008 in France. The couple had got married in May but the mother brought divorce proceedings in France in November 2008. The French court granted the divorce in April 2012 giving the parents joint parental responsibility, but the child’s habitual residence to be with the mother from 7 July 2012 and made provision for the father’s contact with the child. The judgment, which was provisionally enforceable, also granted the mother the right to relocate with the child to Ireland. The father appealed against that judgment. He also requested a stay on the provisional enforceability of the judgment but this request was dismissed on 5 July 2012. The mother and the child then relocated to Ireland on 12 July 2012. On 5 March 2013 the father’s appeal in France was allowed and the original judgment was overturned. The court decided that the child should reside with the father and provided for the mother’s access rights. The father successfully applied for recognition and enforcement of this decision in Ireland. However the mother brought an appeal on a point of law against the French judgment before the French Supreme Court (Cour de cassation) and made an application to the Irish High Court for a stay on the enforcement proceedings. The father also initiated return proceedings under the 1980 Hague Abduction Convention in Ireland. His return application was, however, refused. The High Court held that the removal of the child to Ireland was lawful as it took place on the basis of the French judgment, and that the child had been habitually resident in Ireland from the time when her mother brought her there with the intention of settling. The father appealed. The Supreme Court of Ireland stayed the proceedings and referred the following questions to the CJEU: 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?’ The CJEU held that Arts 2(11) and 11 had to be interpreted as meaning that, where a child had been removed lawfully in accordance with a judgment which was provisionally enforceable and was later overturned on appeal by a judgment granting custody rights to the left-behind parent, the courts of the requested State had to determine whether the child was still habitually resident in the requesting State immediately before the alleged wrongful retention. The CJEU did not clarify when exactly is the date of the alleged wrongful retention correctly leaving this to the national court (presumably it is the day after the mother became aware of the French appeal court decision). Only if the child was, immediately before the retention, habitually resident in the requesting State, could an application for return be granted. The determination of the child’s habitual residence has to be undertaken through an assessment of all the factual circumstances specific to the individual case. As a part of this assessment it was important that account be taken of the fact that the French judgment authorising the removal of the child was provisionally enforceable and that an appeal had been brought against it. The CJEU said those factors were not “conducive” to a finding that the child’s habitual residence had changed to Ireland by the time of the French appeal decision eight months later but the CJEU acknowledged other factors could point towards a change of habitual residence to Ireland and left the decision to the Irish courts.