Habitual residence in the context of an application for return of a child abroad | In Principle

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Habitual residence in the context of an application for return of a child abroad

Every case brought under the Hague Convention on the Civil Aspects of International Child Abduction requires establishment of the child’s habitual residence. Therefore, the concept of habitual residence is central to the operation of the convention itself. Nevertheless, this term is not defined in the convention, nor in the Brussels II bis Regulation applicable to relations between EU member states.

At the outset, it should be noted that habitual residence under the Hague Convention on the Civil Aspects of International Child Abduction is a concept relating to a factual state. It is a different concept from the place of residence under Polish law. Habitual residence determined on the basis of the convention is also independent of how it may have been legal determined by previously issued administrative decisions or judgments of the courts. In certain situations, it is even permissible to establish the child’s habitual residence where the child was placed as a result of a wrongful removal or retention. When considering a Hague application, the court should determine the child’s habitual residence on the basis of evidence presented to the court on the relevant facts of the case.

Circumstances relevant in determining the child’s habitual residence

So what criteria should the courts examining Hague applications follow, and what factual circumstances should they take into account?

The case law of the Court of Justice of the European Union is helpful in this respect. It provides a set of guidelines to be taken into account by national courts when assessing the specific facts.

First, as the CJEU has repeatedly emphasised, the child’s habitual residence corresponds to a place that reflects a certain degree of the child’s integration into the social and family environment. For this purpose, it is necessary to assess, among other factors, the permanence, lawfulness, conditions and motives for the family’s residence and move to the member state concerned, the child’s nationality, the place and conditions of school attendance, language skills, as well as the child’s family and social ties in that member state (C-523/07, A). It is not necessary for a child to be fully integrated in a given state to be considered to have acquired habitual residence there.

Second, the meaning of habitual residence should be determined in light of the best interests of the child, in particular based on the criterion of proximity. In this context, proximity means a practical relationship between the child and the state concerned (C‑497/10 PPU, Mercredi).

However, the geographical origin of the parent who actually has custody of the child and the relations the child has with his or her family in a given member state cannot overshadow the objective circumstances showing that the child lived on a permanent basis with the same parent in another member state (C-512/17, HR).

In addition, the child’s cultural ties with the member state of the parents’ origin may indicate the existence of a certain closeness between the child and a member state corresponding in essence to a bond typical for nationality. Therefore, factors such as language skills or respect for the traditions of a country may point to habitual residence in a given case.

Third, often (though not always) a child will have the same habitual residence as the parent who has direct custody. The younger the child, the more this rule becomes justified. In Mercredi, the CJEU pointed out that a child’s social and family environment, crucial for determining habitual residence, consists of various changing factors depending on the child’s age. Since the infant is totally dependent on the surrounding persons, the environment of a young child is in fact the family environment, created above all by the reference person or persons with whom the child lives and who actually care for and look after the child.

Fourth, the parent’s intent may be a relevant factor in determining the child’s habitual residence but generally is not determinative. The intention to change the place of residence may be made explicitly, by making an appropriate declaration, but also implicitly, by behaviour expressing beyond any doubt the person’s will to concentrate his or her life activity in another place. Purchase or lease of an apartment in the host country, or applying to enrol a child in school, may indicate a change of permanent residence. Moving out of the current home, resigning from work and checking out with an authority due to the end of permanent residence in the country a person is leaving, has a similar meaning.

If the parents agreed between themselves to keep the child in another country (e.g. for professional reasons or because of the need to care for a family member of one of the parents), after which the child is to return to his or her habitual residence, but the period is long and indefinite and the child has adapted to the new environment, the court may consider that the parents’ initial intention to return the child is not in itself sufficient to establish that the child continues to have habitual residence in the country the child has left.

Fifth, the criterion for assessment should be the stability of the child’s place of residence as opposed to its length, meaning that the quality of the child’s integration into the community should matter more than the time the child spends there. Length of stay can only serve as an indicator in assessing the durability of residence, but is not in itself a conclusive criterion.

No specific time threshold exists after which a child can be deemed to have acquired a habitual residence. The Brussels II bis Regulation provides that a child can be integrated into a country after three months, but the process can occur even faster if for example the child has lived in the country before, speaks the official language of the country, or has an extensive base of family or friends there.

The stay does not have to be continuous. A temporary absence of the child, for example, during a school break, does not call into question the continued existence of habitual residence. However, there can be no question of habitual residence when, given the facts, a return to the original place of residence cannot be foreseen (opinion of Advocate General Juliane Kokott in C-523/07, A).

Finally, it is accepted in the case law that a child almost always has a habitual residence, and it is very unlikely that, having lost a habitual residence in one state, the child did not acquire it in another. Usually, a child loses a pre-existing residence at the same time as gaining a new one. Accordingly, if the findings on habitual residence can reasonably lead to both a conclusion that the child is habitually resident and an alternative conclusion that there is no habitual residence, the court should accept the first conclusion. Of course, we can imagine circumstances where a child divides his or her daily life between two countries. Then it will be quite a challenge for the court to determine which is the centre of the child’s life. This may occur, for example, when a child resides with one parent in one country and attends school in another country where the other parent lives, and the time the child spends in the two countries, and emotional ties to them, are split equally.

Infant’s place of habitual residence

If a pregnant woman leaves her state of habitual residence or, against prior arrangements with the father of the child, decides to give birth in another state, can the father apply for return of the child under the Hague Convention on the Civil Aspects of International Child Abduction? An affirmative answer to this question would have to assume that the abduction or retention occurred in violation of the father’s actually exercised custody rights to the unborn child and that the habitual residence is related to the parents’ prior arrangements.

The case law of the Court of Justice takes the opposite view. In C‑499/15, W v X, the court made it clear that establishing the habitual residence of a child in a given member state requires at least the child’s physical presence in that member state. And in a situation where a child was born and has resided continuously with the mother for several months, in accordance with the common will of the parents, in a member state other than the one where the parents had their habitual residence before the birth of the child, the initial intention of the parents that the mother and the child would return to the latter member state cannot be regarded as establishing the child’s habitual residence there within the meaning of the Brussels II bis Regulation (C-111/17 PPU, OL v PQ). As a consequence, the mother’s refusal in such factual circumstances to return with her child to the same member state cannot be regarded as wrongful removal or retention of the child within the meaning of Art. 11(1) of the Brussels II bis Regulation.

The interpretive guidelines set out above indicate that the determination of the habitual residence of a minor should result from an in-depth assessment of what is often a complex factual situation. It should always be made taking into account all the circumstances of the particular case.

Anna Olejniczak-Michalska, attorney-at-law, Private Client practice, Reprivatisation practice, Wardyński & Partners