New example of the notion of habitual residence of the children according to the Brussels IIA Regulation.
In a decision dated December 13, 2017, the Court of cassation reaffirmed the body of evidence which must be taken into consideration by the judges in order to determine the habitual residence of the children according to the Brussels IIA regulation.
In application of Article 8 of this Regulation, 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 seized. In practice, the determination of the habitual residence of a child has resulted in many disputes.
In this case, the family resided in France until the wife left with the children in Argentina. A non-conciliation order had been made in France after the wife had seized the French Courts, then the husband had served his wife with the petition to initiate the second phase of the divorce, in which the wife challenged France’s jurisdiction over parental responsibility over the two children.
The Court of cassation recalled the European case law in the matter and in particular the A and Mercredi cases, which taught us that, in order to determine the habitual residence of a child, “have to be taken into consideration not only the length but also the lawfulness, the conditions and the reasons for the stay on the territory of a State and for the move of the family to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge as well as the social and familial relationships of the child in that State, but also the intention of the parents or of one of them to establish themselves with the child in another State, expressed by certain tangible measures such as the acquisition or the rental of a home in that State”.
In this case, the Court considered that the Court of Appeal had legally justified its decision in deciding that the children had their habitual residence in France at the time the divorce petition was filed by the mother. Indeed, the spouses resided in France for years, where they had bought real property and registered the children in school, children who had the majority of their personal belongings in France and not in Argentina, where they had been taken by the mother two months prior to the filing of the divorce petition. The father had otherwise initiated proceedings in Argentina regarding the abduction of his children, proving that the intention of the spouses was not to establish the habitual residence of the children in Argentina by mutual agreement, habitual residence that was on the contrary well established in France at the time the divorce petition was filed.