SC 419/13

IpsofactoJ.com: International Cases [2015A] Part 2 Case 5 [SCIre]


SUPREME COURT OF IRELAND

Coram

C.G.

- vs -

M.G.

Denham CJ

O’Donnell J

MacMenamin J

6 FEBRUARY 2015


Judgment

MacMenamin J

Background

  1. The child at the centre of this lengthy custody dispute is HG. Her French father is CG, and her British mother is MG. The parents were married on the 24th March, 2008. The child, H, was born on the 14th July, 2008. The parents’ relationship deteriorated very rapidly. The mother brought divorce proceedings in France on the 17th November, 2008. There were then further proceedings and cross-proceedings in France. Ultimately, as described later, the mother brought H to Ireland. The father sought the child’s return to France in the High Court proceedings now the subject of this appeal. This hearing was heard on affidavit. Neither side served a notice to cross-examine on the affidavits adduced in evidence.

  2. At one level, the task which faced the Court in this appeal was fact-oriented. It was to determine, whether, on the evidence, the High Court judge, (O’Malley J.), was correct in holding that H had established habitual residence in Ireland, and, as a consequence of that finding, dismissed the father’s application for H’s return to France. The father’s application, now under appeal was brought under Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction of the 25th October, 1980, (“the Convention”), and Council Regulation 2201/2003 (“the Regulation”). In national law, the Child Abduction & Enforcement of Custody Orders Act, 1991, as amended, gave effect both to the Convention and the Regulation, in cases arising under the Hague Convention between Member States of the E.U. The term “habitual residence” arises in both instruments in the context of the jurisdiction of a court to make an order for return. However, in this appeal, the issue arose as to whether, under the Regulation, the Irish courts had jurisdiction to determine the issue of habitual residence in the light of a prior determination by the French appeal courts that H’s habitual residence was in France. This Court referred the question to the Court of Justice for its preliminary opinion under Article 267 TFEU. The ruling concerned the interpretation of provisions of Brussels Regulation 2201/2003 adopted, in particular on the basis of Article 61(C) EC now Article 67 TFEU contained in Title V of Part III TFEU relating to the area of freedom, security and justice.

    The French Proceedings

    The Divorce Judgment

  3. The custody litigation between the parents has now been going on for 6 years. It is necessary only to refer to the relevant elements of the various proceedings and cross-proceedings. On the 2nd April, 2012, the Tribunal de Grande Instance of A, in France, granted an order for the parents divorce, based on shared fault (the “Tribunal judgment”). The judgment therein declared the divorce should be effective as from 7th April, 2012, and that both parents should jointly exercise parental authority. The Tribunal determined that the child’s habitual residence was to be with the mother, as from 7th July, 2012, in French the order provides “au domicile de la mére”. The Tribunal divorce judgment and order thereunder set out access and accommodation rights for the father in the event of disagreement between the parties; and allowed for various arrangements as to access, depending on whether the mother established residence in France, or left France in order to live in Ireland. The judgment provided that the mother was permitted to “set up residence in Ireland”, and stated, in its operative part, that the order made was “enforceable as a right on a provisional basis as regards the provisions concerning the child”. It is clear, therefore, that the Tribunal had in contemplation the possibility that the mother would reside in Ireland. The fact that H’s habitual residence was in France prior to the date of this order of 2nd April, 2012 is not in dispute in this appeal.

  4. On the 23rd April, 2012, the father brought an appeal in the French courts against that judgment. That appeal was focused on both the orders made relating to the child’s custody and access, and also on the orders directing the father to make an advance payment to the mother in respect of shared property. However, on the 5th July, 2012 the First Président de la Cour d'appel, B (France) dismissed the father’s request for a stay on the provisional enforceability of the judgment of 2nd April, 2012. The appeal was subsequently heard in the Court d’appel B, and is referred to hereafter as the “appeal judgment”.

  5. On 12th July, 2012, the mother travelled with H to Ireland, where they both now live. The mother did not comply with the custody and access provisions contained in the Tribunal judgment.

    The Appeal Judgment

  6. By judgment of the 5th March, 2013 (“the appeal judgment”), the Cour d'appel, B reversed the Tribunal judgment of the 2nd April, 2012. The Appeal Court ordered that H, by then aged 4¾ years, and living with the mother in Ireland, should reside with the father, and provided for the mother to have access and accommodation rights. Importantly, in the context of what occurred afterwards, that Court held that H’s habitual residence was, at the time of her removal, and continued to be, in France.

  7. Relying on the mother’s refusal to bring the child back to France, the father then brought an action before the Family Court of the Tribunal de Grande Instance du N. (France), on 31st March, 2013, seeking that exclusive parental authority be transferred to him; requiring H’s return to the father’s home on pain of penalty; and prohibiting the mother from taking H out of France without permission. On the 10th July, 2013, the Family Court of the Tribunal de Grande Instance du N granted the orders sought by the father.

    The Father’s Proceedings in Ireland under Article 28 Brussels II Regulations

  8. As well as the Irish proceedings now considered in this judgment, the father also brought a further application to the Irish High Court on the 29th May, 2013. This application was under Article 28 of the Brussels II Regulation. This Article deals with “Enforceable Judgments”, and provides, inter alia, for the enforcement of a judgment made in one Member State on the exercise of parental responsibility in another Member State. The father, sought enforcement of the appeal judgment of the 5th March, 2013. That application was successful in the High Court. However, on the 7th January, 2014 the mother brought an appeal in France on a point of law against the French enforcement judgment, which appeal is currently pending before the Cour de Cassation in France. On the 9th May, 2014 the mother made an application to the High Court in Ireland for a stay on the enforcement proceedings. This application was granted. The Irish enforcement proceedings are, therefore, currently stayed by order of the High Court.

    The High Court Judgment

  9. It is now necessary to focus on the High Court proceedings, which are the subject matter of this appeal. Those concerned Article 12 of the 1980 Hague Convention, and Articles 10 and 11 of the Brussels II Regulation, which concern the duty of a court in a host State to order the return of a child who has been wrongfully removed or detained The father sought orders that H had been wrongfully detained in Ireland and for her to return to France.

    The High Court Order Under Appeal

  10. On the 13th August, 2013, the High Court dismissed the father’s claim, holding that the child’s removal to Ireland had been lawful; and had taken place on the basis of a judgment of the French court (the Tribunal judgment) authorising that removal. The High Court judge pointed out that the application for the stay on the provisional enforcement of the Tribunal judgment of the 2nd April, 2012 had been dismissed; and that the aforesaid judgment of the 2nd April, 2012 was final, being neither an order for interim measures, nor a decision which was temporary or provisional. The High Court judge referred to the fact that the Tribunal judgment had not been amended or set aside on appeal within a period of 3 months, a period specified in Article 9 of the Regulation. (This finding is referred to later in this judgment). Referring directly to the appeal judgment, the High Court judge concluded that the habitual residence of the child was not rendered conditional by the fact that the father had brought an appeal against the divorce judgment. She held that the decision on the issue before the court depended, essentially, on the determination of a question of fact, since there was nothing to prevent a change of “habitual residence”, a possibility contemplated in the Brussels II Regulation, where such a change of residence might occur, even before a transfer of jurisdiction.

  11. On the facts adduced on affidavit, the High Court judge held that H had been habitually resident in Ireland from the 12th July, 2012, when her mother brought her to this State with the intention of settling, was a move prior to the French appeal judgment which had pronounced that H’s habitual residence was in France.

    The Father’s Case in this Appeal

  12. In the appeal to this Court, counsel for the father contended that the fact that H had been lawfully removed to Ireland, did not mean that her habitual residence had changed; that lawful removal did not rule out a subsequent wrongful retention; that the divorce judgment of the 2nd April, 2012 had only been declared to be provisionally enforceable and was temporary in its effect while the appeal was still pending; that the mother had not stated before the French courts that she intended to maintain custody of the child in Ireland; and that the mother had never contested the French court’s jurisdiction; or claimed that the child’s habitual residence had changed. As a consequence of this, counsel contended, the Irish courts were bound by the judgments of the French courts, which were those “first seised” under Articles 16 and 19 of the Regulation, and which, therefore, retained jurisdiction on the question of custody.

    The Mother’s Case in this Appeal

  13. Counsel for the mother submitted that the habitual residence of the child must be examined having regard to the facts, and that the High Court judge correctly concluded that the habitual residence changed after the child’s removal to Ireland, in accordance with the divorce judgment of the 2 April, 2012. As the judgment had enabled the mother, alone, to decide the child’s place of residence, there had been no breach of custody rights. Neither the nature of the divorce judgment, nor the appeal brought against it, precluded there being a change of residence as a matter of fact (see judgments of the Court of Justice A, (C - 523/07: E.C.L.I.: E.U.:C:2009:225) and Mercredi (C-497/10 PPU E.C.L.I.:E.U.:C:2010:829)).

  14. It is not disputed that H’s mother has genuine existing family connections with Ireland. H’s maternal grandparents were both Irish citizens. H’s mother, when a child herself, lived in Ireland for a period. H’s maternal grandparents retired to live in the State approximately 20 years ago. H’s maternal grandfather is now deceased, but her elderly maternal grandmother and her maternal aunt are living in Ireland in the same county where H and her mother now live. H does not speak French.

  15. Against this background, this Court referred three questions for preliminary ruling to the Court of Justice as to whether:

    (1)

    .... the existence of the French proceedings relating to the custody of the child preclude[d], in the circumstances of this case, the establishment of habitual residence of the child in Ireland?

    and whether the fact that:

    (2)

    .... either the father, or the French courts, continue[d] to maintain custody rights in relation to the child, (were such) as to render wrongful the retention of the child in Ireland?

    and whether:

    (3)

    .... the Irish courts [were] entitled to consider the question of habitual residence of the child in the circumstances where she has resided in Ireland since July, 2012, at which time her removal to Ireland was not in breach of French law?

    The questions arose in the context of whether the Irish courts were bound by the determination of the French appeal court that H’s place of habitual residence was France. On the face of things, the French courts had been engaged in hearing matrimonial and custody proceedings since the year 2008, and were, therefore, it was submitted, the courts first seised under Article 16 of the Regulation to which reference is made below. Should the Irish courts, therefore, under Article 16 of the Regulation “cede jurisdiction” to the French courts? The ECJ determined that under the Regulation the Irish courts were entitled in European law to determine the question of habitual residence.[*] To understand the task in which this Court is now engaged it is nonetheless necessary briefly to set out the legal instruments and certain aspects of the ECJ’s reasoning.

    The Hague Convention

  16. Article 1 of the 1980 Hague Convention provides:

    The objects of the present Convention are –

    (a)

    to secure the prompt return of children wrongfully removed to or retained in any Contracting State;

    and ....

    Article 3 of the Convention provides:

    The removal or the retention of a child is to be considered wrongful where –

    (a)

    it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

    (b)

    at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

    The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

    [emphasis added]

    Article 12 of the Hague Convention is worded as follows:

    Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

    The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

    Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

    [emphasis added]

    Article 13 of the Hague Convention provides:

    Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that

    (a)

    the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

    (b)

    there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation

    The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

    In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.

    [emphasis added]

    Article 16 of the Hague Convention is worded as follows:

    After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.

    [emphasis added]

  17. As Advocate General Szpunar remarked in his Opinion presented to the Court of Justice, the facts in this case lie on the “demarcation line” between the 1980 Hague Convention, and the Brussels II bis Regulation.

  18. Referring now to the provisions of the Regulation recited below, the nature of the issue, requiring the opinion of the Court of Justice, can more fully be understood by identifying the following issues, viz. whether the French courts were “holders of” parental responsibility, or engaged “rights of custody” (as defined in Article 2 of the Regulation); whether the French courts were “first seised” in a matter of “parental responsibility”, and whether the father himself, or the French courts, hold a right to custody (Article 2 and 16 of the Regulation); and whether this appeal was a matter relating to “parental responsibility” (Article 12); The answer to these questions hinged, to a significant degree, on whether there had been a “wrongful removal” of the child, or whether what had occurred subsequently to the “appeal judgment” constituted “wrongful retention” of the child.

  19. The following provisions of the Regulation are, therefore, relevant: Recital 17 in the Preamble to Regulation 2201/2003 is worded as follows:

    In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.

    Article 2 of that Regulation contains a series of important definitions, as follows:

    7.

    the term “parental responsibility” shall mean all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term shall include rights of custody and rights of access;

    8.

    the term “holder of parental responsibility” shall mean any person having parental responsibility over a child;

    9.

    the term “rights of custody” shall include rights and duties relating to the care of the person of a child, and in particular the right to determine the child’s place of residence;

    10.

    the term “rights of access” shall include in particular the right to take a child to a place other than his or her habitual residence for a limited period of time;

    11.

    the term “wrongful removal or retention” shall mean a child’s removal or retention where:

    (a)

    it is 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;

    and

    (b)

    provided that, at the time of removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Custody shall be considered to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child’s place of residence without the consent of another holder of parental responsibility.

    Chapter II of Regulation No 2201/2003 on ‘Jurisdiction’ contains provisions on ‘Parental responsibility’ at Articles 8 to 15.

  20. Article 8 addresses ‘General jurisdiction’ and is worded as follows:

  21. 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.

  22. Article 9 on ‘Continuing jurisdiction of the child’s former habitual residence’ provides:

  23. 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.

    2.

    Paragraph 1 shall not apply if the holder of access rights referred to in paragraph 1 has accepted the jurisdiction of the courts of the Member State of the child’s new habitual residence by participating in proceedings before those courts without contesting their jurisdiction.

  24. Article 10 deals with ‘Jurisdiction in cases of child abduction’. It reads:

  25. In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:

    (a)

    each person, institution or other body having rights of custody has acquiesced in the removal or retention;

    or

    (b)

    the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:

    (i)

    within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;

    (ii)

    a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);

    (iii)

    a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);

    (iv)

    a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.

  26. Article 11, entitled ‘Return of the child’, provides:

  27. 1.

    Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter “the 1980 Hague Convention”), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.

    2.

    When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.

    3.

    A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.

    Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.

    4.

    A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.

    5.

    A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard.

    6.

    If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.

    7.

    Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child.

    Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit.

    8.

    Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.

  28. Article 12 deals with ‘Prorogation of jurisdiction’ and reads:

  29. 1.

    The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where:

    (a)

    at least one of the spouses has parental responsibility in relation to the child;

    and

    (b)

    the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised, and is in the superior interests of the child.

    2.

    The jurisdiction conferred in paragraph 1 shall cease as soon as:

    (a)

    the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final;

    (b)

    in those cases where proceedings in relation to parental responsibility are still pending on the date referred to in (a), a judgment in these proceedings has become final;

    (c)

    the proceedings referred to in (a) and (b) have come to an end for another reason.

    3.

    The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where:

    (a)

    the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State;

    and

    (b)

    the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.

    4.

    Where the child has his or her habitual residence in the territory of a third State which is not a contracting party to the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, jurisdiction under this Article shall be deemed to be in the child’s interest, in particular if it is found impossible to hold proceedings in the third State in question.

  30. Article 16, bears the title ‘Seising of a Court’:

  31. 1.

    A court shall be deemed to be seised:

    (a)

    at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent;

    or

    (b)

    if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.

  32. Article 19 on ‘Lis pendens and dependent actions’ is worded as follows:

  33. 1.

    Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

    2.

    Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

    3.

    Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.

    In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised.

    [emphasis added]

  34. Chapter III of the Regulation contains the rules relating the recognition of judgments given in a Member State in the other Member States and the enforcement of those judgments. Within Section 1 of that chapter, on recognition, insofar as material, Article 24 of the Regulation, headed ‘Prohibition of review of jurisdiction of the court of origin’, provides:

  35. The jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in Articles 22(a) and 23(a) may not be applied to the rules relating to jurisdiction set out in Articles 3 to 14.

  36. Article 28(1) of the Regulation, within Section 2 of Chapter III concerning applications for a declaration of enforceability, provides:

  37. 1.

    A judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.

    The Judgment of the Court of Justice

  38. 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.

  39. 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.

  40. 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).

  41. 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.

  42. 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:

  43. 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.

  44. The Court of Justice, however, entered this caveat:

  45. 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.

  46. The Court of Justice, nonetheless, determined:

  47. 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.

  48. 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.

  49. 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.

  50. 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

  51. The Court of Justice, therefore, responded, in answer to questions (1) and (3) contained in the reference:

  52. (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]

  53. In answer to question 2 the ECJ responded:

  54. (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

  55. 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.

  56. 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.

    The High Court Findings of Fact on Habitual Residence

  57. In the course of her judgment, the High Court judge made clear she had:

  58. 22.

    .... considered the reports of H.'s general practitioner and the child psychologist. They confirm H.'s attachment to her mother and consider that she does not have such a relationship with her father. She becomes "sad" when the topic of France is raised and has in the past exhibited problem behaviour on returning from there. However, while they are clearly of the view that it would be preferable for H. to stay with her mother, there is no material before the court that would justify a finding of "grave risk" beyond the inevitable disruption that such a situation will cause to a small child.

  59. The judge continued:

  60. 23.

    It must also be pointed out that at least some of the reports put before the French courts, before the removal of the child to Ireland, did not find a problem with the relationship between the applicant [i.e. the father] and H. If that has changed, it may be that the respondent [the mother] is to some degree responsible - there is certainly serious cause for concern as to what has happened in relation to the access situation since the removal - but I make no findings in this regard.

    However:

    The real issue in the case is the child’s habitual residence.

  61. Having considered the relevant provisions of the Hague Convention and the Regulation, the judge made the following further findings:

  62. 32.

    It is well-established law that habitual residence is a question of fact depending on the evidence in the case.

    33.

    It is common case that the removal of the child H. from France to Ireland in July of 2012 was not wrongful, in that it was expressly authorised by the order made in April, 2012. Counsel for the applicant argues, however, that the retention of H. after the judgment of the Appeal Court on the 5th March, 2013 was wrongful within the meaning of the Convention. For this argument to succeed, the "rights of custody" relied upon must be those acquired by the applicant by virtue of that judgment (there being no question of such rights arising by operation of law or by an agreement having legal effect). It is therefore necessary for him to establish that the habitual residence of the child was in France "immediately before" the allegedly wrongful retention: that is, immediately before the ruling of the appellate court. He submits that it was, on the basis that although the removal was lawful, it must be regarded as not having changed H.'s habitual residence. This contention is in turn based on the proposition that the April 2012 order was provisional or, alternatively, that it was subject to the applicant's right of appeal. In these circumstances, it is claimed that the respondent's intention must itself be regarded as provisional or conditional upon the outcome of the appeal.

  63. Bearing in mind the caveat contained at the conclusion of the answer to questions 1 and 3, it is necessary to emphasise that the trial judge took account of the following:

  64. 34.

    Undoubtedly, some of the earlier orders in the French proceedings were temporary in effect and were frequently expressed to be provisional. However, looking at the terms of the April 2012 judgment and order, I can see no indication that it was intended to be in any sense interim, temporary or provisional. It sets out a phased time-table for the transfer of custody in a process that was to culminate on the 7th July, 2012. It expressly authorises the respondent to take the child to Ireland thereafter and envisages that this will be for an indefinite period. There is a careful determination as to how access is to be managed as between France and Ireland. It is, in my view, a final order, although subject in the ordinary way to appeal.

  65. The judge also then specifically took into account the “appeal judgment” of 5th March, 2013 in the following terms:

  66. 37.

    The question then is whether the exercise by the applicant of his right of appeal could have the effect of preventing a change of habitual residence after an otherwise lawful removal, so that the French courts retained jurisdiction and the non-compliance with the March 2013 order amounted to wrongful retention.

    And at paragraph 51:

    51.

    On the facts of this case, the removal of H. from France to this State in July, 2012, after the decision of one French court permitting her to do just that and of another refusing a stay, was lawful.

    The judge continued:

    52.

    That being so, there is nothing about the concept or definition of "habitual residence" that could prevent it from being changed. H.'s habitual residence was not "fixed in aspic" nor rendered conditional by the fact that the respondent had lodged an appeal .... to hold otherwise would be to introduce a legal figment into what is essentially a factual question. I further agree that the Regulation envisages that the habitual residence of a child may change before jurisdiction shifts ....

  67. Having, therefore, placed the existence of the potential appeal, and its outcome, in the balance, the judge determined:

  68. 54.

    The issue in this case is, then, to be decided in the normal way- that is, by looking at the factual reality of H.'s life. There can be no doubt but that her mother is no longer habitually resident in France, but in this State. That is the logical outcome of the factors identified by the French court as reasons for her not wanting to remain in France. The reality of H.'s day-to-day life is that it too is centred here. In my view she is habitually resident here, and probably has been since her mother took her here with the intention of settling here. That process took place with the full permission of the French court, which gave to the respondent the right to decide whether the child should live in France or Ireland.

  69. At the conclusion of her judgment, the judge was not asked either to determine other issues, to hear further evidence, or to allow for further cross-examination. This Court must, therefore, assess the matter on the basis of the evidence before it in accordance with established principles with regard to an appeal before it.

  70. 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.

  71. In the circumstances, therefore, I would uphold the judgment of the learned High Court judge.


[*] The fully reasoned judgment, C-376/14PPU E.C.L.I.: E.U.:2014:2268, is available at: http://curia.europa.eu/juris/document/document.jsf?text&docid=158432&pageIndex=0&doclang=EN&mode=lst&dir&occ=first&part=1&cid=494649.


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