Language of document :

Judgment of the Court (First Chamber) of 22 December 2010 (reference for a preliminary ruling from the Court of Appeal of England and Wales (Civil Division) - United Kingdom) - Barbara Mercredi v Richard Chaffe

(Case C-497/10 PPU) 1

(Judicial cooperation in civil matters - Regulation (EC) No 2201/2003 - Matrimonial matters and parental responsibility - Child whose parents are not married - Concept of 'habitual residence' of an infant - Concept of 'rights of custody')

Language of the case: English

Referring court

Court of Appeal of England and Wales (Civil Division)

Parties to the main proceedings

Applicant: Barbara Mercredi

Defendant: Richard Chaffe

Re:

Reference for a preliminary ruling - Court of Appeal (England & Wales) (Civil Division) - Interpretation of Articles 8 and 10 of Council 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, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1) - Concept of habitual residence - Child born in the United Kingdom of a British father and French mother with the nationality of the mother, the parents being unmarried - Child removed to Reunion by the mother - Lawful removal when it took place because the mother then had parental responsibility for the child - Subsequent application for parental responsibility, shared custody and access brought by the father before the British courts - Order of the High Court ordering the return of the child to the United Kingdom - Order challenged by the mother on the ground that the child was no longer habitually resident in the United Kingdom when the court was seised

Operative part of the judgment

1.    The concept of 'habitual residence', for the purposes of Articles 8 and 10 of Council 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, repealing Regulation (EC) No 1347/2000, must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a Member State - other than that of her habitual residence - to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother's move to that State and, second, with particular reference to the child's age, the mother's geographic and family origins and the family and social connections which the mother and child have with that Member State. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances of fact specific to each individual case.

If the application of the abovementioned tests were, in the case in the main proceedings, to lead to the conclusion that the child's habitual residence cannot be established, which court has jurisdiction would have to be determined on the basis of the criterion of the child's presence, under Article 13 of the Regulation.

2.    Judgments of a court of a Member State which refuse to order the prompt return of a child under the Hague Convention of 25 October 1980 on the civil aspects of international child abduction to the jurisdiction of a court of another Member State and which concern parental responsibility for that child have no effect on judgments which have to be delivered in that other Member State in proceedings relating to parental responsibility which were brought earlier and are still pending in that other Member State.

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1 - OJ C 328, 04.12.2010.