Întrebare preliminară cu privire la stabilirea reședinței copilului. UPDATE: decizia finală
4 martie 2016 | Mihaela MAZILU-BABEL, Adina MIHALACHE
4 martie 2016: După ce Curtea de Justiție a stabilit în data de 9 octombrie 2014 faptul că:
1) Articolul 2 punctul 11 și articolul 11 din Regulamentul (CE) nr. 2201/2003 al Consiliului din 27 noiembrie 2003 privind competența, recunoașterea și executarea hotărârilor judecătorești în materie matrimonială și în materia răspunderii părintești, de abrogare a Regulamentului (CE) nr. 1347/2000 trebuie interpretate în sensul că, în situația în care deplasarea copilului a avut loc în conformitate cu o hotărâre judecătorească executorie provizoriu care a fost ulterior infirmată printr‑o hotărâre judecătorească prin care s‑a stabilit reședința copilului la domiciliul părintelui care locuiește în statul membru de origine, instanța din statul membru în care a fost deplasat copilul, sesizată cu o cerere de înapoiere a copilului, trebuie să verifice, procedând la o evaluare a ansamblului împrejurărilor specifice ale cauzei, dacă copilul avea încă reședința obișnuită în statul membru de origine imediat înainte de pretinsa reținere ilicită. În cadrul acestei evaluări, trebuie să se țină seama de faptul că hotărârea judecătorească de autorizare a deplasării putea fi executată cu titlu provizoriu și era atacată cu apel.
2) Regulamentul nr. 2201/2003 trebuie interpretat în sensul că, în situația în care deplasarea copilului a avut loc în conformitate cu o hotărâre judecătorească executorie provizoriu care a fost ulterior infirmată printr‑o hotărâre judecătorească prin care s‑a stabilit reședința copilului la domiciliul părintelui care locuiește în statul membru de origine, neînapoierea copilului în acest stat membru după cea de a doua hotărâre este ilicită, iar articolul 11 din regulament își găsește aplicarea dacă se consideră că, imediat înainte de această reținere, copilul avea încă reședința obișnuită în statul membru de origine. Dacă se consideră că, dimpotrivă, copilul nu mai avea la acest moment reședința obișnuită în statul membru de origine, hotărârea de respingere a cererii de înapoiere întemeiate pe dispoziția menționată este luată fără a aduce atingere aplicării normelor privind recunoașterea și executarea hotărârilor judecătorești pronunțate într‑un stat membru stabilite în capitolul III din același regulament.
Instanța de trimitere, the Supreme Court of Ireland, a decis în data de 6 februarie 2015 să mențină decizia instanței inferioare:
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The Judgment of the Court of Justice
29. In response to this Court’s questions, the Court of Justice held that, in fact, no situation of lis pendens under Article 19(2) of Regulation 2201/2003 arose. The ECJ drew a distinction between the issues before the French court, which concerned issues of “parental responsibility” and “custody and access”: by way of contrast with the proceedings in the Irish courts which were brought under Article 12 of the Hague Convention in combination with Article 11(1) of Brussels II. The ECJ held that although enforcement proceedings had also been brought by the father under Article 28 of Brussels II, it was immaterial to this appeal whether the French courts were still “seised” of those issues, nor was it necessary for the Irish courts to “cede jurisdiction” under the Regulation. The ECJ held that “access rights” did not arise in the instant case. Thus it pointed out that no issue under Article 9 of Brussels II could arise. The Court of Justice also held that Articles 10 and 12 of the Regulation did not arise, as both dealt with, what it termed, the substance of parental responsibility and not, as here, the return order. The Court, therefore, adopted a narrow interpretation of the terms “any matter relating to parental responsibility” contained in Article 12 of the Regulation, and the terms “Proceedings relating to parental responsibility”, and “same cause of action” to be found in Article 19 of the Regulation.
30. The ECJ observed that, under Article 2(11) of the Regulation, the definition of “removal” or “retention” is similar to that contained in Article 3 of the 1980 Hague Convention. Such removal or retention, before being considered “wrongful” within the meaning of the Regulation, must have taken place in breach of rights of custody acquired by judgment, or by operation of law, or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention (paragraph 46). The ECJ pointed out that Article 11(1) of the Regulation provides that paragraphs 2 to 8 of that Article only apply, where the holder of “rights of custody” applies to the competent authorities of a Member State to deliver a judgment on the basis of the 1980 Hague Convention in order to obtain the return of a child that has been wrongfully removed to, or retained in, “a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention”. It followed that this could not arise if the child was not, in fact, habitually resident in the Member State of Origin immediately before the wrongful removal or retention (Paragraph 48). As a consequence, the Court observed that the court of a Member State, to which the child has been removed, and which is seised of an application for the return of the child “must determine by undertaking an assessment of all the specific circumstances of the case before it whether the child was still habitually resident in the Member State of origin immediately before the alleged wrongful retention” (paragraph 45). The ECJ held that Article 11(1) of the Regulation could only be applied for the purposes of granting an application for return, if the child was, immediately before the alleged wrongful retention, habitually resident in the Member State of origin – that is, in this case, the ‘appeal judgment’ the date of 5th March, 2013.
31. The Court reiterated that criteria for establishing habitual residence have been set out in the context of Article 8 of the Regulation in the judgment of A, (C – 523/07: E.C.L.I.: E.U.:C:2009:225) and Article 8 and 10 of the Regulation in Mercredi (C-497/10 PPU E.C.L.I.:E.U.:C:2010:829); and that the meaning and scope of the concept must be determined in the light of the objective stated in Recital 12 of the Preamble to the Regulation, which stated that the grounds of jurisdiction established in the Regulation were shaped in the light of the best interests of the child, in particular on the criterion of proximity (A; paragraphs 31 and 35, and Mercredi; paragraphs 44 and 46).
32. The Court of Justice, therefore, ruled that a child’s habitual residence must be established by a national court, taking account of all the circumstances and facts specific to each individual case (A; paragraphs 37 and 44, and Mercredi; paragraphs 47 and 56). In addition to the physical presence of the child in a Member State, these factors included others which made it clear that the child’s presence was not in any way temporary or intermittent, and reflected some degree of integration in a social and family environment (Case A; paragraphs 38 and 44, and Mercredi, paragraphs 47, 49 and 56). A national court, therefore, in applying and interpreting the concept of habitual residence, must take account of the duration, regularity, conditions and reasons for the stay in a territory of a Member State, and for the family’s move to that State; the child’s nationality; the place and conditions for attendance at school; linguistic knowledge, and the family and social relationships of the child in that State (Judgments in A, paragraph 39 and 44; Mercredi, paragraphs 48, 49 and 56). The ECJ pointed out that the intention of the parents, or one of them, to settle permanently with the child in another Member State, manifested by certain tangible steps, such as the purchase or lease of a residence in that Member State, might constitute an indicator of the transfer of the child’s habitual residence (Case A; paragraphs 40 and 44, and Mercredi; paragraph 50). Furthermore, as pointed out in paragraphs 51 to 56 of the judgment in Mercredi, the duration of the stay can serve only as an indicator, that is, as part of the assessment of all the circumstances and facts specific to each individual case, and set out the factors which are particularly to be taken into account when the child is young.
33. On this basis, the ECJ pointed out that the concept of the child’s habitual residence in Article 2(11), and in Article 11 of the Regulation, cannot differ in content from that elucidated in the above judgments with regard to Article 8 and 10 of the Regulation. The ECJ, therefore, held at paragraph 54 of its judgment herein:
“Accordingly, it follows from the consideration set out in paragraphs 46 to 53 of this judgment, that it is the task of the court of the Member State to which the child has been removed, when seised of an application for return on the basis of the 1980 Hague Convention and Article 11 of the Regulation, to determine whether that child was habitually resident in the Member State of Origin immediately before the alleged wrongful removal or retention, taking into account all the circumstances of fact specific to the individual case using the assessment criteria provided in those judgments.”
34. The Court of Justice, however, entered this caveat:
“55. When examining in particular the reason for the child’s stay in the Member State to which the child was removed, and the intention of the parent who took the child there, it is important, in circumstances such as those of the main proceedings, to take into account the fact that the court judgment authorising the removal could be provisionally enforced and that an appeal had been brought against it. Those factors are not conducive to a finding that the child’s habitual residence was transferred, since that judgment was provisional and the parent concerned could not be certain at the time of the removal that the stay in that Member State would not be temporary.”
35. The Court of Justice, nonetheless, determined:
“56. Having regard to the necessity of ensuring the protection of the best interests of the child, those factors are, as part of the assessment of all the circumstances of fact specific to the individual case, to be weighed against other matters of fact which might demonstrate a degree of integration of the child in a social and family environment since her removal, such as those mentioned in paragraph 52 of this judgment, and in particular the time which elapsed between that removal and the judgment which set aside the judgment of first instance and fixed the residence of the child at the home of the parent living in the Member State of Origin. However, the time which has passed since that judgment should not, in any circumstances, be taken into consideration”.
36. The Court of Justice was informed that, as a matter of French law, a court could not, itself, be the holder of “rights of custody” (see, by way of contrast, H.I. v. M.G. [2000] 1 IR 110, judgment of Keane J. in the Supreme Court., delivered on the 19th day of February 1999. Second, the ECJ held that the judgment of the Cour d’appel de B had jurisdiction under Article 8 of the Regulation, when, in its judgment of the 5th March, 2013, it fixed the residence of the child at the home of the father. However, the ECJ held that this had no bearing on the question of whether the retention of the child was wrongful within the meaning of the Regulation, since that question depended, not on the jurisdiction, per se, of the French courts, but rather on a breach of rights of custody attributed under the law of the Member State of origin. The court observed that Article 2(11) of the Regulation does not include either a “breach of access”, or a “breach of accommodation rights” within the definition of “wrongful removal of retention” found in Article 2(1) of the Regulation.
37. Reduced to its essence, therefore, the court held that if H had been habitually resident in France at the time of the appeal judgment, then there would be a breach of the right to determine the place of the child’s residence under Article 2(9) of the Regulation, and an application under Article 11 would arise. However, the court pointed out that, if a national court held that the condition of residence was not satisfied, a decision to dismiss an application for return based on Article 11 of the Regulation, which did not effect the substance of rights of custody, which the court of the Member State of origin has previously determined, would be without prejudice to the application of the Rules relating to the recognition and enforcement of judgments given in a Member State set out in Chapter III of the Regulation.
38. The ECJ emphasised the proposition that the possibility that a child’s habitual residence might change between a judgment at first instance and appeal proceedings, and that such a change might, in a particular case, be determined by the court seised of an application for return based on the 1980 Hague Convention and Article 11 of the Regulation, could not constitute a factor on which a parent who retained a child in breach of rights of custody could rely in order to prolong the factual situation created by his or her wrongful conduct, and in order to oppose the enforcement of the judgment given in the Member State of Origin on the exercise of parental responsibility, which was enforceable in that Member State, and which had been served. Such an outcome would constitute a circumvention of the mechanism established by s.2 of Chapter III of the Regulation and would render this mechanism devoid of purpose. Likewise, the court observed, in circumstances such as those of the main proceedings, the bringing of an appeal against such a judgment given by a Member State of Origin on the exercise of parental responsibility could not have any effect on the enforcement of that judgment.
The Answers to this Court’s Questions in the Reference
39. The Court of Justice, therefore, responded, in answer to questions (1) and (3) contained in the reference:
“(1) Articles 2(11) and 11 of Council Regulation (EC) No. 2201/2003 of 27 November, 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters, and in matters of parental responsibility, repealing Regulation (EC) No. 1347/2000, must be interpreted as meaning that where the removal of a child has taken place in accordance with a judgment which is provisionally enforceable, and which was thereafter overturned by a judgment which fixed the residence of the child at the home of the parent living in the Member State of Origin, the court of the Member State to which the child was removed, seised of an application for the return of the child, must determine, by undertaking an assessment of all the circumstances of fact specific to the individual case, whether the child was still habitually resident in the Member State of Origin immediately before the alleged wrongful retention. As part of that assessment it is important that account be taken of the fact that the judgment authorising the removal could be provisionally enforced and that an appeal had been brought against it.” (emphasis added)
40. In answer to question 2 the ECJ responded:
“(2) Regulation No. 2201/2003 must be interpreted as meaning that, in circumstances where the removal of a child has taken place in accordance with a court judgment which is provisionally enforceable and which was thereafter overturned by a court judgment fixing the child’s residence at the home of the parent living in the Member State of Origin, the failure to return the child to that Member State following the latter judgment is wrongful, and Article 11 of the Regulation is applicable, if it is held that the child was still habitually resident in that Member State immediately before the retention. If it is held, conversely, that the child was, at that time, no longer habitually resident in the Member State of Origin, a decision dismissing the application for return based on that provision is without prejudice to the application of the Rules established in Chapter III of the Regulation relating to the recognition and enforcement of judgments given in a Member State.”
The Applicable Test in this Appeal
41. The test now to be applied, therefore, is whether there were sufficient facts, either undisputed, or as found, to justify the High Court’s determination? It has not been suggested there was no evidence upon which the High Court (or this Court) could act; nor has it been proposed that the matter should be remitted to the High Court to hear further evidence.
42. It is necessary then to apply the principles contained in Hay v. O’Grady [1992] 1 I.R. 210 to the High Court judge’s findings of primary and secondary fact. In particular, this Court must assess the facts as found in light of the responses to the first and third questions and the caveat that account be taken of the provisional nature of the judgment authorising removal, and the fact that an appeal had been brought against it.
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50. Having considered the legal and factual background to the case, the questions posed by this Court, and the opinion of the ECJ therein, it is a matter for this Court to determine whether the judgment of the High Court was correctly decided in accordance with the established jurisprudence. I am of the view that the High Court judgment should be upheld. The evidence before the High Court was sufficient for the judge to carry out an assessment of the facts and circumstances, although having regard to the caveat by the Court of Justice that it was necessary in considering ‘habitual residence’ to take into account the fact that the French Court judgment authorising the removal could be provisionally enforced, and that an appeal had been brought against it. While the Court of Justice points out that these factors are not “conducive” to a finding that the child’s habitual residence has been transferred, there was sufficient evidence before the High Court concerning integration, family environment and the nature of the relationship between the child, H, and her parents, such as to allow the High Court judge to come to the conclusion she did.
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9 octombrie 2014: Curtea a statuat:
1) Les articles 2, point 11, et 11 du règlement (CE) n° 2201/2003 du Conseil, du 27 novembre 2003, relatif à la compétence, la reconnaissance et l’exécution des décisions en matière matrimoniale et en matière de responsabilité parentale abrogeant le règlement (CE) n° 1347/2000, doivent être interprétés en ce sens que, dans la circonstance où le déplacement de l’enfant a eu lieu conformément à une décision judiciaire exécutoire provisoirement qui a ensuite été infirmée par une décision judiciaire fixant la résidence de l’enfant au domicile du parent demeurant dans l’État membre d’origine, la juridiction de l’État membre où l’enfant a été déplacé, saisie d’une demande de retour de l’enfant, doit vérifier, en procédant à une évaluation de l’ensemble des circonstances particulières du cas d’espèce, si l’enfant avait encore sa résidence habituelle dans l’État membre d’origine immédiatement avant le non-retour illicite allégué. Dans le cadre de cette évaluation, il importe de tenir compte du fait que la décision judiciaire autorisant le déplacement pouvait être exécutée provisoirement et qu’elle était frappée d’appel.
2) Le règlement n° 2201/2003 doit être interprété en ce sens que, dans la circonstance où le déplacement de l’enfant a eu lieu conformément à une décision judiciaire exécutoire provisoirement qui a ensuite été infirmée par une décision judiciaire fixant la résidence de l’enfant au domicile du parent demeurant dans l’État membre d’origine, le non-retour de l’enfant dans cet État membre à la suite de cette seconde décision est illicite et l’article 11 de ce règlement trouve à s’appliquer s’il est considéré que l’enfant avait encore sa résidence habituelle dans ledit État membre immédiatement avant ce non-retour. S’il est considéré, au contraire, que l’enfant n’avait plus à ce moment sa résidence habituelle dans l’État membre d’origine, la décision rejetant la demande de retour fondée sur cette disposition est prise sans préjudice de l’application des règles relatives à la reconnaissance et à l’exécution des décisions rendues dans un État membre établies au chapitre III du même règlement. (s.n.-M.M.-B.)
Pentru întreg cuprinsul hotărârii, a se vedea aici, în limba engleză, și aici, în limba franceză.
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30 septembrie 2014: Judecătorul suprem irlandez se întreabă, în apel, cu privire la stabilirea reședinței copilului. (C-376/14 PPU C)
Situația de fapt:
1. existența în Franța a unor proceduri privind încredințarea copilului
2. reședința obișnuită a copilului în Irlanda
3. competența instanțelor franceze în ceea ce privește încredințarea copilului
4. caracterul ilicit al reținerii copilului de către mama aflată în Irlanda
5. deplasarea în Irlanda, în iulie 2012, nu încălca reglementarea franceză.
Dispoziții incidente: judecătorul nu trimite, în dispozitivul trimiterii, la o dispoziție anume.
Mihaela Mazilu-Babel (selecție, situație de fapt și dispoziții incidente)
Doctorand, Facultatea de Drept, Universitatea din Craiova
Adina Mihalache (update decizia finală)
Masterand, Facultatea de Drept, Universitatea “Alexandru Ioan Cuza” din Iași
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