Article 4 - Prohibition of torture and inhuman or degrading treatment or punishment
Article 6 - Right to liberty and security
Article 24 - The rights of the child
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:
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.
80) In the words of the second question, the referring court asks the Court about the impact, for the purposes of determining whether a child is habitually resident in a Member State even though that child has never been physically present there, of the fact that, according to the mother’s allegations, she was duped by the father into travelling to a third country and was subsequently unlawfully detained there by the father and thus forced to give birth there. The referring court adds that that situation may entail a breach of the fundamental rights of the mother and the child under Articles 3 and 5 of the ECHR, the content of which is replicated in Articles 4 and 6 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
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83) I shall first of all attempt to evaluate the extent to which the dimension of coercion described above must be taken into account in application of the principles derived from the existing case-law (section (b)). I shall then proceed to address the question whether the best interests of the child and the fundamental rights set out the Charter require the application of other principles in a situation such as that obtaining in the main proceedings (section (c)).
98) In the interests of comprehensiveness, it seems to me to be useful to make clear that, where the application of the ‘actual centre of interests of the child’ test does not in the particular case serve as a basis for the general jurisdiction of the courts of a Member State in a situation such as that in issue in the main proceedings, the protection of the best interests of the child guaranteed in Article 24 of the Charter and of the fundamental rights enshrined in Articles 4 and 6 of the Charter ( 85 ) would not justify any different conclusion.
100) In the first place, in accordance with Article 51(2) of the Charter, the latter ‘does not extend the field of application of Union law beyond the powers of the Union’. Thus, the Court is called upon to interpret, in the light of the Charter, the law of the European Union within the limits of the powers conferred on it. ( 87 ) In fact, the European Union and its Member States are not required, under EU law or under the ECHR, to exercise their jurisdiction over situations occurring in third States in the absence of a connection provided for by EU law or by the ECHR as interpreted in the Strasbourg case-law.
106) 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:
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.
