On 8 June 2017, the Court of Justice of the European Union (the CJEU) rendered a judgment in case C-111/17 OL v PQ which further clarifies the concept of the child habitual residence, the issue which has already been dealt by the CJEU in cases C‑523/07 A and C‑497/10 PPU Mercredi.

OL, an Italian National and PQ, a Greek national, married in Italy in 2003 and have been living there ever since. When PQ was eight months pregnant, the spouses agreed that PQ will give birth to the child in Greece where her parents live and will come to Italy with the child afterwards. The spouses travelled to Greece and after the birth of their daughter in February 2016, OL returned to Italy. PQ, however, unilaterally decided to stay in Greece. OL commenced the divorce proceedings before the Tribunale ordinario di Ancona (Court of Ancona, Italy), sought exclusive custody over the child and the return of the child to Italy. The Italian court declared it lacked competence to decide on the parental responsibility due to the fact that the child has been living in another Member State all her life. The decision was confirmed by the Corte d’appello di Ancona (Ancona court of appeal, Italy). OL instituted the proceedings before the Monomeles Protodikeio Athinon (Court of First Instance (single judge) of Athens), as well, seeking the return of the child. The respective court decided to refer the question for the preliminary ruling to the Court of Justice of the European Union (the CJEU) seeking a clarification as to establishing a habitual residence of the child which was born in a state other than the state in which the parents intended for the child to have a habitual residence and unlawfully retained by one parent in that state. The Court also posed a question whether the child has to be present in the territory of a certain state in order to be resent there.

The CJEU responded by stating that if a child was born and has been living continuously with her mother for several months, in accordance with the joint wishes of her parents, in a Member State other than that where those parents were habitually resident before her birth, the initial intention of the parents is not relevant and cannot lead to the conclusion that that child was ‘habitually resident’ there. The respective situation cannot be characterised as a ‘wrongful removal or retention’ of the child, within the meaning of Article 11(1) of the Brussels IIa Regulation. The CJEU elaborated its decision by emphasising that the habitual residence is a question of facts and therefore the initial intention of the parents concerning the place where the child should live does not trump the fact that the child has been living in another State from its birth. According to the CJEU, the present situation does not amount to wrongful removal or retention of a child since the child was born and remained to live in Greece lawfully. Furthermore, there is no evidence which would suggest an intention by the mother to circumvent the jurisdictional bases laid down in the Brussels IIa Regulation.

The text of the judgment is available here.

A new CJEU judgment on infant’s habitual residence: clarifying importance of physical presence and intent