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CJEU Case C-393/18 PPU / Opinion

UD v XB

Policy area:
Employment and social policy
Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Type:
Opinion
Decision date:
20/09/2018

Key facts of the case:

Reference for a preliminary ruling — Urgent preliminary ruling procedure — Judicial cooperation in civil matters — Regulation (EC) No 2201/2003 — Article 8(1) — Jurisdiction in matters of parental responsibility — Concept of ‘habitual residence of the child’ — Requirement of physical presence — Detention of the mother and child in a third country against the will of the mother — Infringement of the fundamental rights of the mother and child.

Outcome of the case:

Having regard to all of the foregoing considerations, I propose that the Court reply to the questions for a preliminary ruling referred by the High Court of Justice (England and Wales), Family Division (United Kingdom), along the following lines:

  1. The habitual residence of a child, within the meaning of Article 8(1) 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, corresponds to the place where that child has its de facto centre of interests. That place must be determined in the light of all the circumstances of each individual case. In certain exceptional situations, the global assessment of all the circumstances may lead to the view that the child has, de facto, the centre of its interests in a place in which it has never been physically present. The physical presence of the child is therefore not a prerequisite for the purpose of establishing the child’s habitual residence there.
  2. The circumstance that the mother of an infant, who has actual custody of that infant, was compelled by the father to give birth in a third State and to remain there with the infant after its birth, placing them, where that is the case, in a situation contrary to the fundamental rights enshrined in Articles 4 and 6 of the Charter of Fundamental Rights of the European Union, constitutes a relevant factor for the purposes of determining the child’s habitual residence within the meaning of Article 8(1) of Regulation No 2201/2003.

In such a situation, the infant can, however, be habitually resident in a Member State, notwithstanding the fact that it has never been physically present there, only in so far as its mother has her de facto centre of interests there, this being a matter which it is for the referring court to ascertain. In this regard, particular importance attaches to any indicia demonstrating that the mother has family, social and cultural connections in that Member State, as well as to any tangible manifestations of the mother’s intention to live there with the child following its birth.