One of the main problems in international child abduction cases is to determine which country's courts should decide a case (conflict of jurisdictions) and which legal system should apply (conflict of laws). For this purpose, various connecting factors are employed. Traditionally, the most frequently used ones include domicile (in common law countries), nationality (in civil law countries) and place of habitual residence.
Domicile is defined as the place which a person regards as his permanent home and with which he has the closest ties. Every person obtains a domicile at birth (domicile of origin, this will depend on the domicile of the appropriate parent at the time of birth). In order to prove a change (domicile of choice), a court requires evidence not only of the factual new residence, but also of a firm intention to live there permanently. The domicile of children is dependent on the domicile of the parents (domicile of dependence) and changes automatically when the domicile of the appropriate parent changes. In complex cases, only a court decision can ascertain in which country the domicile of a person is vested, and the outcome of the decision is often quite unpredictable.
In contrast to domicile, nationality is relatively easy to determine, both for the interested person and for third parties. However, problems arise when a person has more than one nationality or is considered stateless. A perceived weakness of both nationality and domicile is their rigidity in connecting a person to his or her country of origin. This is considered inadequate, especially in the context of free movement of persons.
The notion of habitual residence as a connecting factor emerged under the influence of the Hague Conference. As a matter of policy, the Hague Conventions do not define the notion, in order to avoid rigidity (see for instance the Convention on the Civil Aspects of International Child Abduction, concluded at the Hague on 25 October 1980). Habitual residence is viewed as superior to nationality and domicile as a connecting factor owing to its flexibility. The notion of habitual residence has been taken over by numerous national laws and, recently, by EU law (Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, Regulation Brussels II bis,). Currently, habitual residence is the main connecting factor in transnational child cases.
However, precisely because the term habitual residence is not defined strictly, it can be complex to prove in more difficult cases. A frequent question is whether the parental intentions or the physical presence of a child in a state is primordial to establishing habitual residence. Within the private international law field, the Court of Justice of the EU (CJEU) has shed some light on the notion of habitual residence in the context of child abduction. In general, the CJEU underlined the importance of the integration of a child into its social and family environment, pointing out that habitual residence is a question to be decided by the national court in light of the specific factual circumstances. According to the CJEU, such factors may include the duration, regularity, conditions and reasons for the child's stay in a given place and the family's move there, the child's nationality, the place where they attend school, which languages they speak, as well as their family and social relationships. However, with very young children, these factors may prove to be inadequate.
On 8 June 2017, the CJEU has rendered an enlightening opinion regarding the interpretation of the concept of habitual residence of very young children under the Brussels II bis Regulation. The facts of the case, C-111/17 PPU, state that an Italian man and a Greek woman were married in Italy in 2013, where they continued to reside thereafter. When the woman was eight months pregnant, the couple travelled together to Greece so that she could give birth there. On 3 February 2016, the woman gave birth to a daughter. The man returned to Italy after the birth of the child. According to him, they had agreed that his wife would stay in Greece with their daughter until May 2016, after which he expected his wife and child to return to Italy. However, in June 2016, the wife decided to remain in Greece with the child. The man brought an application before the Court of First Instance of Athens in Greece, for the return of the child to Italy; the State where the child’s parents resided together before the birth of the child.
Having emphasised the importance of the primary caretaker’s situation for determining the child’s habitual residence, the CJEU stressed that it is nevertheless important to bear in mind that linking the child’s habitual residence to that of her primary caretakers should not result ‘in making a general and abstract rule according to which the habitual residence of an infant is necessarily that of his parents’. According to the CJEU:
‘if the intention initially expressed by the parents, that the mother should return together with the child to a second Member State, which was where the parents were habitually resident before the birth of the child, were to be regarded as a consideration of crucial importance, establishing in fact a general and abstract rule that the habitual residence of an infant is necessarily that of the child’s parents, that would transcend the concept of ‘habitual residence’, within the meaning of Regulation No 2201/2003, and would be contrary to the structure, effectiveness and the objectives of the return procedure.' The CJEU furthermore stated that ‘to take the position that the initial intention of the parents that a child should reside in one given place should take precedence over the fact that the child has continuously resided since birth in another State would be difficult to reconcile with that concept.’
Consequently, the CJEU ruled that Article 11(1) of the Brussels II bis Regulation, must be interpreted as meaning that, in a situation in which a child was born and had been continuously residing with his or her mother for several months in accordance with the joint agreement of the parents in Greece, while in Italy they had their habitual residence before birth, the initial intention of the parents as to the return of the mother accompanied by the child in Italy cannot allow the child to be regarded as having his or her habitual residence in Italy. Thus, this case seems to resolve the question whether the parental intentions or the physical presence of a child in a state is primordial to establishing habitual residence.
A selection of relevant publications from the Peace Palace Library collection
- Laquer Estin, A. (ed.), International Family Law, Edward Elgar Publishing, (2 vols.) 2016.
- Vienenkotter, R., Begriff des gewohnlichen Aufenthalts im Internationalen Familien- und Erbrecht der EU, Jenaer Wissenschaftliche Verlagsgesellschaft, 2017.
- Morley, J.D., The Hague Abduction Convention, American Bar Association, 2016.