General jurisdiction in parental responsibility cases

General jurisdiction in parental responsibility cases. Continuing jurisdiction of the child’s former habitual residence. Jurisdiction based on the child’s presence.

Articles 8, 9 and 13

 

Chapter X

Text of the relevant provision

Article 8

General jurisdiction

1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.

2. Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12.

Article 9

Continuing jurisdiction of the child's former habitual residence

1. Where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the courts of the Member State of the child's former habitual residence shall, by way of exception to Article 8, retain jurisdiction during a three-month period following the move for the purpose of modifying a judgment on access rights issued in that Member State before the child moved, where the holder of access rights pursuant to the judgment on access rights continues to have his or her habitual residence in the Member State of the child's former habitual residence.

Article 13

Jurisdiction based on the child's presence

1. Where a child's habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12, the courts of the Member State where the child is present shall have jurisdiction.

2. Paragraph 1 shall also apply to refugee children or children internationally displaced because of disturbances occurring in their country.

Relevant CJEU decisions

CJEU, judgment of 2 April 2009, A, C-523/07, EU:C:2009:225

CJEU, judgment of 22 December 2010, Mercredi, C-497/10 PPU, EU:C:2010:829

CJEU, judgment of 9 October 2014, C. v M., C-376/14 PPU, EU:C:2014:2268

CJEU, judgment of 8 June 2017, OL v PQ, C-111/17 PPU, EU:C:2017:436

Selected national decisions

1. Rationale of the provision and general frame

2. Child’s ‘habitual residence’ as an autonomous concept

3. Child’s ‘habitual residence’ as a fact-based concept

4. Criteria for determining habitual residence

4.1. Common circumstances

4.2. Physical presence on the territory

5. Effect of the child’s age on determining habitual residence

5.1. Infants and small children

5.2. Older children

6. Particularly challenging situations

7. Continuing jurisdiction of the child's former habitual residence

8. Childs’s presence as basis for jurisdiction

1. Rationale of the provision and general frame

The drafters of the Brussels II bis Regulation, in the same vein as the drafters of the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children, chose ‘habitual residence’, namely that of a child, as a primary connecting factor when establishing international jurisdiction in parental responsibility cases. Rationale of this choice is explained in Recital 12 of the Regulation preamble where it is proclaimed that the grounds of jurisdiction in matters of parental responsibility are shaped in the light of the best interests of the child, in particular the criterion of proximity. Therefore, save in exceptional cases (Articles 9, 10, 12 and 13), the jurisdiction in parental responsibility cases lies with courts of the MS of the child’s habitual residence (Article 8). The country of child’s or parents’ citizenship, or a country were one or both parents reside (being an EU MS or a non-MS) is not important in this context and does not on its own affect the application of Article 8.

When The Hague conventions were drafted, habitual residence was considered a question of pure fact, whereas a legal definition was deemed of no practical purpose. Nevertheless, habitual residence appears to be one of the highly litigated issues, especially under the 1980 Child Abduction Convention. The same trend continues with the adoption of the Brussels II bis Regulation. Being the crucial issue under the Regulation, the determination of a child’s habitual residence is often the thorniest and the most controversial issues in the practice of the MS courts.

The CJEU has shed light on determining the child’s habitual residence by identifying several general criteria, however, cases before MS courts keep bringing forward many specific and delicate questions, such as: What effect does the parent’s or parents’ habitual residence has over the child’s habitual residence? What effect do the parent’s circumstances or parents’ intentions have over the child’s habitual residence? What weight is to be given to the opinion of the child in determining his or her habitual residence? How much time is needed for a habitual residence to change? Can the child’s habitual residence be located in a place where he or she has not yet been? How to establish a habitual residence of family that is constantly on the move? In this chapter, the discussion of different aspects of habitual residence is focused on their practical application, rather than theoretical basis.

It should also be noted here that Article 8 of the Regulation refers to habitual residence of the child at the point in time when the court is seized of the case. According to this principle also known as perpetuatio iurisdictionis, a later relocation to another MS, although lawful, will not affect jurisdiction (Mercredi, para 42).

2. Child’s ‘habitual residence’ as an autonomous concept

There are many legal terms developed on national and international level to define person’s ties with the territory of a State. In legal instruments and jurisprudence one may find concepts such as ‘domicile’, ‘permanent residence’, ‘habitual residence’, ‘temporary residence’ or ‘stay’. Although in many aspects these concepts overlap, deceivingly inviting national courts to apply criteria formerly defined in their national laws, in no way can they be seen as synonyms to or equated with the concept of ‘habitual residence’ within the Brussels II bis Regulation. Moreover, despite the temptation to borrow the definition of ‘habitual residence’ from other areas even within the EU law, such as family law, succession law, social security law, tax law or migration law, this is not a good practice. There is no single definition of ‘habitual residence’ on the EU level, although this concept as used in these different areas or law or legal instruments embraces certain common elements and is based on the same principle.

Same as with regard to various other legal concepts in the so called ’Brussels system’, the CJEU made it clear that the concept of the child’s ‘habitual residence’ under the Brussels II bis Regulation has to be construed autonomously. No reference to any national law is permitted, instead it has to be defined in the context of the provisions and the objective of the Regulation. As apparent from Recital 12, the grounds of jurisdiction are intended to accommodate the best interests of the child and in particular the criterion of proximity.

3. Child’s ‘habitual residence’ as a fact-based concept

While the notion of ‘habitual residence’ is defined based on criteria as explained in the following section, the task of determining habitual residence in a particular case, including that of a child, is a question of fact. It has been repeatedly confirmed in the CJEU case law that the assessment is only of the facts and not dependent on any legal qualifications. In some MSs, especially during the first years following the entry into force of the Brussels II bis Regulation, the registered address was mistakenly linked to habitual residence. Laws of a number of countries, including many MSs, require a citizen or a foreign national resident in that country to register an address or declare a place of residence there. This address serves certain administrative purposes and may be provided or required during the court proceedings, namely, for the purpose of service of documents. Nevertheless, this address does not always mean that a person actually lives there, let alone that he or she is habitually resident there.

The MS courts were fast to understand that having registered address in a country does not mean being habitually resident there.

In a case before the Cour d’appel Luxembourg (Luxembourg Court of Appeal) the dispute related to the child, who resided in Brussels, where he attended a nursery and then kindergarten, although he was officially registered in Luxembourg. The Court considered that the registration in Luxembourg City lead one to assume that the registering party primarily intended to relocate and establish his domicile there. In the opinion of the Court, even if the place of habitual residence coincides in general with the registered domicile, a person may nevertheless have his or her habitual residence at another place. The person in question actually relocated to the new place and simultaneously remained registered at their old address until he registers the change to the present address or alternatively, the entry is deleted by the administrative office. Because Article 8 exclusively makes reference to the habitual place of residence, the Court considered that the fact that the defendant was officially registered in Luxembourg City had no implications over the jurisdiction of the Court if it can be established that the child had her or his habitual and actual place of residence in another Member State. (Cour d’appel Luxembourg (Luxembourg), judgment in case no. 36175, 20 October 2010)

In a judgment rendered by the Županijski sud u Puli-Pola (County Court in Pula-Pola, Croatia) the court ruled that ‘habitual residence’ is similar to the term ‘domicile’ in Croatian national law, the latter meaning the place and address which a person is permanently inhabiting for the purpose of exercising his or her rights and obligations related to life interests such as family, professional, economic, social, cultural and other interests. However, mere registration of domicile in a place, without actual use of its substance, cannot be considered a circumstance, which would determine one’s habitual residence. Likewise, stating a postal address in the documents submitted to a court cannot, on its own, have such an importance. (Županijski sud u Puli-Pola, judgment in case no. Gž-1532/14-2, 16 September 2014)

Recent ‘Review’ of the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania) emphasises that the mere fact of having declared the place of residence (gyvenamosios vietos deklaravimas) in Lithuania (or owning real estate there) does not presuppose the habitual residence in the country. (Lietuvos Aukščiausiasis Teismas, Tarptautinės ir Europos Sąjungos teisės taikymo sprendžiant jurisdikcijos nustatymo klausimą šeimos bylose apžvalga, Teismų praktika (43), 2016)

When determining the relevant facts of the case, the courts in certain cases need to engage into a very intensive investigation and analysis. However, if the circumstances allow, they may also rely on the findings of other MS courts in their former decisions.

Such was the situation before the Općinski sud u Rijeci (Municipal Court in Rijeka, Croatia) in a case instigated by the mother, Croatian national, against the father, of non-Croatian nationality. The mother and the father were both living in Germany where their children were born. Soon after divorce in July 2015 and the German court decision entrusting the children to the father in October 2015, the mother took the two minor children L. and E. to Croatia. On 9 December 2015, she seised the Municipal Court in Rijeka asking for a decision on parental responsibility over two minor children. The Court denied its jurisdiction due to the fact the habitual residence of children was in Germany. This was established, inter alia, with reliance on the facts defined in 2015 German court decisions on divorce and parental responsibility. (Općinski sud u Rijeci, judgment in case no. pOb-973/2015-10, 24 December 2015)

Reliance on the findings of other courts may prove very useful tool since determining the facts in the past becomes more difficult with passage of time. However, one has to be mindful of the relevant dates. The habitual residence is to be determined with reference to the date on which the proceedings have commenced.

4. Criteria for determining habitual residence

The lack of precise definition of the child’s ‘habitual residence’ allows courts to take into account the emerging social developments affecting the child’s social and family environment. The CJEU case law assists the MSs courts by setting certain criteria for determining the child’s habitual residence for the purposes of the Brussels II bis Regulation.

In general, the child’s habitual residence is ascertained though two basic criteria:

the physical presence at the territory qualified by some degree of integration in a social and family environment and a certain degree of evidenced intention to create stable life in the country.

These criteria derive from the CJEU judgment in A, the first to provide detailed analysis of concept of the child’s ‘habitual residence’ in the context of parental responsibility case.

The case concerned a family who had originally lived in Finland but then moved to live in Sweden. Some years later, they travelled to Finland in a camper van, initially for the holidays, moving within the country. After couple of months, the parents applied to the Finnish authorities for social housing. When children came into attention of the State institutions, they were considered abandoned (the children did not go to school, they had already been taken into the care of the State before because of the stepfather’s violence, etc.) hence Finish institutions took children into immediate care and placed them in a childcare unit. When parents challenged such decision before the courts, the question arose as to whether the children were habitually resident in Finland.

The CJEU noted the difference between physical presence and ‘habitual residence’ of a child, within the meaning of Article 8(1) of the Regulation, stating that in addition to the physical presence of the child in a MS other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment (A, para 38; OL v PQ, para 43).

Moreover, the CJEU noted that parents’ intention to settle permanently with the child in another MS, manifested by certain tangible steps such as purchase or lease of a residence in the host MS, may constitute an indicator of the transfer of the habitual residence. Another indicator may be constituted by lodging an application for social housing with the relevant services of that state (A, para 40).

Comparing the physical presence and the intention, it is evident that the former is an objective criterion and as such more easily determined than the latter. Being a subjective criterion, intent is difficult to prove and relevant only where it may be substantiated by tangible steps, i.e. material expressions of claimed intent. As a rule, mere parties’ statements will not suffice. Thus, where a party states to have had an intention to move abroad or not to reside in a place but cannot point to tangible steps that would support this statement, the intention will remain unproven. This is corollary to the legal certainty because interpretation to the contrary would jeopardize the predictability of this fundamental ground of jurisdiction.

4.1. Common circumstances

When the above-mentioned criteria need to be applied in practice, the question arises as to what factual circumstances have to be taken into account. The CJEU clearly stated that the child’s habitual residence must be established based on all the circumstances specific to each individual case (A, para 37; see also Mercredi, paras 47 and 56 and C v M., para 45). It also provided a list of particular circumstances to be taken into consideration, which include the duration, regularity, conditions and reasons for the stay on the territory of a MS 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 MS (A, para 39).

Upon assessment of national case-law, it is concluded that MS courts, when assessing child’s integration, usually correctly take into account factors such as duration and regularity of the child’s physical presence in the country, child’s nationality, child’s enrolment to school or kindergarten, enrolment into extracurricular activities, registration for the purpose of receiving social benefits, registration for the purpose of health care and actual use of it, child’s family ties in a particular country, languages spoken and at which level, friends and other social connections. However, failure to enrol a child to school or register for health care does not mean that child is not resident in a country provided that other circumstances indicate intention to settle permanently.

In a UK case Re CK an important factor was time that passed since move from Lithuania to UK and, in particular, enrolment into school and accommodation under state care. (Family Court Sitting at Newcastle-Upon-Tyne, Re CK (Care Proceedings: Habitual Residence: Art 15) [2015] EWHC 2666 (Fam), 16 August 2015)

In G and A, the mother failed to register G for a school place (A would have been too young) or G and A for health care. The court in UK held that a failure to enrol a child into school or register within the State health system did not necessary mean that there was no intention to stay in the country. In its opinion mother was simply neglectful of her children’s educational and health needs. All the other circumstances showed that their habitual residence was in UK. (Family Court sitting at East London; judgment in G&A (Children: Habitual Residence and Article 15 Transfer) [2015] EWFC B41, 14 April 2015)

In Sorenson v. Sorenson (2008), the alleged child abduction case under the 1980 Hague Convention, the Court in United States as indicators of child’s acclimatization took into account that the girl had enrolled in preschool in Australia, spoke with an Australian accent, had Australian friends and had spent the majority of her life in Australia. (United States District Court, D. Minnesota, judgment in Sorenson v. Sorenson, 563 F. Supp. 2d 961, 964, 9 April 2008)

As to one MS nationals working in another MS, it is pretty common, that in case of divorce or dispute related to children courts of homeland would be approached, claiming, that family is still habitually reside there. However, as the time passes while they have been working and residing in the host MS they become socially integrated there, and consequently their habitual residence transfers.

Recently, the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania) had a chance to comment on such a situation. The family lived in Ireland for several years, however, in 2016 the mother submitted a claim to the Lithuanian court seeking, inter alias, establishment of the couple’s daughter’s residence with her (there was no divorce question at issue, since the couple was not married). The Court of first instance denied its competence on the ground that all parties were habitually resident in Ireland. The Lietuvos Apeliacinis Teismas (Court of Appeal of Lithuania) also agreed with the findings of the lower Court. It noted that the mother, with whom the child lived, is renting an apartment in Ireland, pays apartment’s utility costs, permanently works in Ireland since 2010, and receives social assistance there. According to the Court of Appeal, the fact that the girl is not attending school or kindergarten in Ireland, but is taken care by a nanny and has, as the mother claimed, no social connections with Ireland, does not change the fact that the girl lives in Ireland since her birth.

In her application to the Supreme Court, listing the typical arguments of Lithuanian expats, the mother tried to persuade the Court that she and the girl should be considered as habitually resident in Lithuania. She claimed that both have citizenship of Lithuania, she still officially declares her place of residence there, owns real estate and visits Lithuania pretty often. Moreover, argued the mother, their residence in Ireland is based solely on economic reasons and does not mean that their centre of interests is there, while her plans for future life are linked to Lithuania. The Supreme Court, however, did not accept these arguments, ruling instead that the mother and the child are clearly habitually resident in Ireland. The Supreme Court reiterated all the arguments listed in the decisions of the lower Courts, agreeing that all of them are relevant and legally important when establishing habitual residence. In addition, it noted that the lower Courts should have also taken into account the citizenship of the mother and the girl, ownership of real estate in Lithuania as well as the claim of the mother that she and the girl return to Lithuania often. However, admitted the Supreme Court, this would not have changed the conclusion as to habitual residence. (Lietuvos Aukščiausiasis Teismas, decision in case No 3K-3-426/2016, 20 October 2016)

4.2. Physical presence on the territory

Up until recently the CJEU did not have the opportunity to declare its position on the issue whether habitual residence may be established in a state in which the child has never been physically present. The uncertainty about the physical presence in a country being necessary requirement for the habitual residence has been aggravated in a view of the conflicting national decisions on the issue. Thus, the French courts seem to adopt the position not requiring physical presence.

The French Cour de Cassation, deciding a case under 1980 Hague Child Abduction Convention, was also asked to consider whether a child might be habitually resident in a state where he had never been. The case concerned two children of a Franco-American married couple. The elder child was born in Michigan in 2005. In November 2007, the mother, expecting her second child, went to France with her elder daughter to visit her dying father. She stayed in France after his death, and gave birth to a boy there 3 months later, in February 2008.

In March 2008, the father applied for the children's return. It was clear that the older girl was habitually resident in the USA and the mother wrongfully retained her in France. However, the second child had never been in the US and he was born in France and has spent all his life in France. The application in respect of both children was allowed at first instance, and upheld by the Court of Appeal. The mother appealed to the Cour de Cassation. The mother denied that her baby born in France could be considered as having his habitual residence in the United States of America. The Cour de Cassation, in contrary to the position of the UK courts discussed above, agreed with the Court of Appeal. It was concluded that both parents, having joint and full parental authority, had their habitual residence in the United States of America and that residence could not change owing solely to their baby’s birth in France and the mother's unilateral wish to reside there. (French Cour de Cassation, decision of 26 October 2011 n° 10-19905). Such position was also adopted in a later decision of French courts, e.g. French Tribunal de Grande Instance Besançon, 15th June 2015 (not published)

Diametrically opposite was the view of UK  and Swiss courts.

In a UK case of 2011, the British father, of Afghan origin, travelled back to Afghanistan to marry local girl (his first line cousin). His wife planned to come to England but was still in Afghanistan when their first child was born. She later left the newborn to her relatives and moved to UK to join with her husband. Soon she left her husband, seeking a refuge from domestic violence. When the first child was around a year and a half, the mother noted that he was no longer in the relatives’ home in Afghanistan and suspected that his father abducted him. She applied to UK Court for the return of the child to UK. The question was whether the child could derive his habitual residence from that of his mother. The Court refused jurisdiction concluding that the child who stayed in Afghanistan all his life could not have habitual residence in UK, regardless of the parents’ habitual residences being in UK and their settled intentions for him to live with them there. (Court of Appeal, judgment in H v H (Jurisdiction to Grant Wardship) [2011] EWCA Civ 796, 8 July 2011)

In another case also before UK courts, the parents of Pakistani origin and their three children lived in UK, father and children had double nationality (British and Pakistani). As family relations deteriorated, the husband was often returning to Pakistan and the mother moved into a refuge with her three children alleging the abuse. The mother arranged a three-week trip to Pakistan to visit her father with the children. There she was put under pressure to reconcile with her husband and was forced to give up her and the children’s passports. The mother was held prisoner by the husband, became pregnant and gave birth to their fourth child. Eventually (after another year and a half) she managed to escape and return to UK, where she started proceedings to get all four children returned from Pakistan.

There were two distinct situations in the Pakistani case: first, the situation of three older children, who were habitually resident in UK before the planned visit to Pakistan; and second, the situation of the fourth child who was born in Pakistan because his mother was forced to stay there and who was never in UK. In fact, he was six months when the mother started return proceedings in UK. As regarding the first situation, the Court considered that the mother remained habitually resident in England during her enforced absence in Pakistan. In the same vein, the older children remained habitually resident in UK, hence the UK Court accepted jurisdiction and ordered their return.

Regarding the situation of the fourth child born in Pakistan, the Court considered whether to focus on: 1. presence as a necessary pre-cursor to residence and thus to habitual residence or 2. on the relationship between the child and his primary career. The Court opted for the first approach and concluded that the baby could not be habitually resident in UK as he had never been here. Therefore, the Court could not establish its jurisdiction based on Article 8 of the Regulation. However, the Court was not confident that this is acte claire for the purpose of EU law and thought of making a preliminary reference for solving the case. This was not done as the Court applied national law and decided to exercise jurisdiction on the basis of British nationality of the child through Article 14 of the Regulation. (In the matter of A (Children) (2013) [2013] UKSC 60, 9 September 2013)

In similar vein, a Swiss Federal Tribunal (deciding a case under 1996 Hague Child Protection Convention) ruled that the child, who had never been physically present in a particular country, could not have had a habitual residence there. The case in questions concerned a girl born in July 2011. The Greek parents had married in Greece in March 2011. Before girl’s birth, the mother had worked and lived in Switzerland, while during last months of pregnancy, she had worked in Greece. In June 2011, she travelled to New York, where the child was born. The father came to New York to see the girl and a month later returned to Greece. In August 2011, the mother and child returned to Switzerland. The father submitted application claiming for child abduction and for an order returning the child to Greece. The Swiss Central Authority dismissed the application based on wrongful removal and retention of the child, on the grounds that she had never had a habitual residence in Greece, court of first instance and appeal court agreed to such a position. (IIe Cour de droit civil, arrêt du TF du 12 juin 2012, No. 5A_346/2012)

The dilemma was, at least to some extent, resolved by a recent CJEU judgment in OL v PQ.

OL, an Italian national, and PQ, a Greek national, married in Italy on 1 December 2013 and they resided together in Italy. When PQ was eight months pregnant, the couple travelled together to Greece so that PQ could give birth there. On 3 February 2016 PQ gave birth, in Greece, to a daughter, who has remained there since with her mother. After the birth of the child, OL returned to Italy. He claims that they have agreed that PQ should stay in Greece with their child until May 2016, when they should both join him in Italy. However, in June 2016 PQ decided to remain in Greece, with the child. She claims that thy never stated the exact date of return and that they agreed to spend together the summer holidays, in August, in Greece. In July 2016, OL initiated proceedings before the Tribunale di Ancona (Court of Ancona) seeking a divorce and sole custody of his daughter. He also requested that the necessary measures be taken to ensure the return of the child to Italy. By order of 7 November 2016, the President of the Court of Ancona decided, with respect to the application for return of the child to Italy, that he had no jurisdiction with respect to that application, since the child has always resided and continues to reside in a MS other than the Italy. On appeal, the Corte d’appello d’Ancona (Court of Appeal of Ancona) upheld the decision on lack of jurisdiction. On 20 October 2016, OL brought proceedings before the Monomeles Protodikeio Athinon (Court of First Instance of Athens, Greece) claiming that it should order the return of his daughter to Italy. The Court seised with these proceeding asked the CJEU the question of necessity of physical presence for establishing the child’s habitual residence.

Regarding the physical presence, the judgment in OL v PQ reveals that if an infant was born and has stayed continuously with mother for several months in accordance with the common will of his parents in Greece, rather than in Italy where they were habitually resident before the infant’s birth, the initial intention of the parents as to the return of the mother accompanied by the child to Italy cannot be taken to mean that the infant‘s ‘habitually resident’ under Brussels II bis is in Italy. Thus the CJEU has confirmed the principle position of the national courts which treated physical presence as a compulsory condition for habitual residence. While this judgment has solved certain open issues, it has brought up new ones, such as whether the outcome would have been the same if the pregnant mother has moved to another MS without the husband’s consent or if the child was born in that MS fortuitously or as a result of force majeure, of if the relocation of the mother was intended to circumvent the jurisdictional rules.

Having established that the child’s physical presence is normally required on the territory of a State, Tthere is however no minimum time required for a child to be present in one State to acquire habitual residence there. As can be seen from the CJEU case law, the physical presence and intention complement each other: where one is weaker, the strength of the other may compensate for this weakness and still provide basis for conclusion in favour of the child’s habitual residence. Thus, the longer the child is physically present at a certain territory, the lesser the need to rely on the intention. In such a situation, the intention would be self-evident unless proven otherwise. And vice versa, the shorter the child is present at a territory, the stronger the need to show a clear intention. Such would be the situation where one just moved from one country into another as illustrated by the CJEU judgment in Mercredi.

The case concerned a two-month old baby Chloé of French nationality born in England to unmarried parents (French mother and British father). Chloé’s parents separated when she was two months old and mother removed her to the French island of La Réunion. In few days the father filed applications for, inter alia, return of the child, parental responsibility, shared residence and rights of access. Recognising that the removal was lawful under UK law, the question of material importance was whether Chloé’s habitual residence is changed from the day she left for France.

Upon reiterating the principles and criteria formerly established in A, the CJEU acknowledged the possibility that a child may acquire habitual residence in a new country right after moving there, provided that the clear intention is proved (Mercredi, arg. paras 53-55). Such an intention might be straightforward in cases in which a mother (or a father) is returning ‘back home’ to a country of her (or his) nationality and takes clear steps to settle down (return to family and friends, finds housing, starts looking for job, etc.). It is clear that one may lose the former habitual residence and acquire new one immediately upon relocating provided there is a clear intention of immigrating to the new country (including re-settling in a country of past habitual residence) evidenced by necessary arrangements to that effect. Additional issue noticeable in Mercredi was the extent to which the mother’s circumstances and mother’s intent affect the determination of the child’s habitual residence. The questions of linking the child’s habitual residence to that of its parents and recognising separate child’s intention is dealt with in the below section.

Although there is no minimum period needed for the child’s habitual residence to change upon relocation to another State, a considerable difference could be seen in cases where the child was relocated lawfully, and where relocation results from abduction. In case of lawful relocation, the child’s habitual residence will change more quickly than in case of unlawful removal or retention of a child. Further comments on this issue are presented in the following sub-chapter.

Choose the most appropriate answer

In case of fire you have to follow 3 simple steps: the fire alarm or call 112, those who are in danger and only then to extinguish the fire.

Match three A's with the appropriate definitions

  • Activate
    Turn on a fire alarm
  • Assist
    Help people who are in danger
  • Attempt
    Try to extinguish the fire

The four elements that must be present for fire to exist include:

There are four elements that must be present for a fire to exist:

  • oxygen
  • heat
  • fuel
  • a chemical reaction

The concept of fire prevention is based upon keeping these four elements separate.

  • heat, oxygen, fuel and a chemical reaction between the three
  • water, a heat source, fuel and a chemical reaction between the three
  • oxygen, water, fuel and a chemical reaction between the three
  • fuel, oxygen, earth and a chemical reaction between the three