VIEW OF ADVOCATE GENERAL

CRUZ VILLALÓN

delivered on 6 December 2010 ¹(1)

Case C‑497/10 PPU

Barbara Mercredi

v

Richard Chaffe

(Reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division))

(Judicial cooperation in civil matters – Jurisdiction and enforcement of decisions – Matrimonial matters and parental responsibility – Regulation (EC) No 2201/2003 – Child born to an unmarried couple – Concept of ‘habitual residence’ – Lawful removal of the child to another Member State – Establishment of a new habitual residence – Urgent preliminary ruling procedure)

Table of Contents

I –   The legal context

A –   European Union law

B –   International law

C –   National law

II – The facts and the main proceedings

A –   The circumstances underlying the dispute in the main proceedings

B –   The actions brought in England

C –   The actions brought in France

1.     The action brought by the mother

2.     The father’s application under the Hague Convention on International Child Abduction

III – The questions referred and the application for an urgent preliminary ruling

IV – Preliminary remarks

V –   The first question

A –   The determination of the ‘habitual residence’ of the child

1.     The concept of habitual residence: the lessons from A

2.     The ‘loss’ and ‘acquisition’ of a habitual residence in the case of lawful removal

a)     The conditions for the transfer of habitual residence

b)     The indicators of a transfer of habitual residence

i)     The interpretation factors inferred from Article 9 of Regulation No 2201/2003

ii)   The importance of the mother’s wishes in assessing the habitual residence of a child lawfully removed

B –   The assessment of the jurisdiction of the national courts in cases involving a change of habitual residence

1.     Clarification of the function of the national courts under Regulation No 2201/2003

2.     Examination of the expediency of referral to another court

a)     Referral to the court in the place where the child is present: Article 13 of Regulation No 2201/2003

b)     Referral to the court which is best placed: Article 15 of Regulation No 2201/2003 and the plea of forum non conveniens

C –   Conclusion

VI – The second and third questions

A –   Preliminary remarks on the relevance of the questions raised

1.     Positioning the problem

2.     Assessment

B –   The second question

C –   The third question

1.     Submissions of the parties in the main proceedings, the governments of the Member States concerned and the Commission

2.     Assessment

a)     Clarification of the third question

b)     Conflict between a decision adopted on the basis of Regulation No 2201/2003 and a decision adopted on the basis of the Hague Convention on International Child Abduction

c)     Conflict between the decisions adopted on the basis of Regulation No 2201/2003

d)     Conclusion

VII – Conclusion

1.        In the present case the Court is once again asked to interpret a number of provisions 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, (2) also known as ‘Brussels IIa’, in the context of an urgent preliminary ruling procedure.

2.        It is, primarily, called upon to give guidance to the referring court, the Court of Appeal (England and Wales) (Civil Division) (United Kingdom), on one of the key concepts of Regulation No 2201/2003, that of habitual residence, on which the Court has previously ruled, in particular in its judgment in A. (3)

3.        However, it is important to stress immediately that the Court’s task will not be an easy one on that account. As will be shown, the facts at issue in the main proceedings, which in many respects are untypical, will lead the Court to consider, more specifically, the circumstances in which the transfer of a child’s habitual residence may be established where that child is lawfully removed from one Member State to another by the person who has sole parental responsibility for her. The Court will, on the one hand, have to endeavour to give the referring court a clear answer to its questions, providing it with guidance which will enable it to settle the difficult dispute brought before it while acting fully in accordance with the spirit of Regulation No 2201/2003, one of the principal objectives of which is to ensure that the best interests of the child are safeguarded. The Court will also have to ensure, on the other hand, that it formulates that answer so as to provide all the national courts with the necessary guidance for them to be able to rule under their own international jurisdiction pursuant to Regulation No 2201/2003. It is not impossible that, from that viewpoint, it will have cause to rule, more widely, on the function of the national courts called upon to examine their jurisdiction under Regulation No 2201/2003 with a view to settling disputes concerning parental responsibility brought before them.

I –    The legal context

A –    European Union law

4.        Article 24 of the Charter of Fundamental Rights of the European Union, (4) which concerns the rights of the child, is worded as follows:

‘1.      Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2.      In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

3.      Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.’

5.        The 12th recital in the preamble to Regulation No 2201/2003 states:

‘(12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.’

6.        The 33rd recital in the preamble to Regulation No 2201/2003 states:

‘(33) This Regulation recognises the fundamental rights and observes the principles of [the Charter]. In particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of [the Charter].’

7.        Article 2(11) of Regulation No 2201/2003 defines the ‘wrongful removal or retention … of a child’ in the following terms:

‘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.’

8.        Article 8 of Regulation No 2201/2003, headed ‘General jurisdiction’, which opens Chapter II, Section 2 of that regulation and establishes the grounds of jurisdiction as regards parental responsibility, provides as follows:

‘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.’

9.        Article 9 of the same regulation, headed ‘Continuing jurisdiction of the child’s former habitual residence’, states:

‘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.’

10.      Article 10 of Regulation No 2201/2003, concerning jurisdiction in cases of child abduction, provides:

‘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.’

11.      Article 11 of Regulation No 2201/2003 contains the provisions applicable to applications, under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, (5) in order to obtain the return of a child who has been wrongfully removed or retained. It is worded as follows:

‘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 ..., 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.’

12.      Article 13 of Regulation No 2201/2003 governs jurisdiction based on the child’s presence in the following terms:

‘1.      Where a child’s habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12, the courts of the Member State where the child is present shall have jurisdiction.

2.      Paragraph 1 shall also apply to refugee children or children internationally displaced because of disturbances occurring in their country.’

13.      Article 19(2) and (3) of Regulation No 2201/2003 states:

‘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.’

14.      Article 24 of Regulation No 2201/2003 establishes the principle of prohibition of review of jurisdiction of the court of origin in the following terms:

‘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.’

15.      Article 60(e) of Regulation No 2201/2003 provides:

‘In relations between Member States, this Regulation shall take precedence over the following Conventions in so far as they concern matters governed by this Regulation:

…

(e)      [the 1980 Hague Convention] on the Civil Aspects of International Child Abduction.’

B –    International law

16.      The Hague Convention on International Child Abduction, which entered into force on 1 December 1983, was signed and ratified both by the French Republic and by the United Kingdom of Great Britain and Northern Ireland as well as by all the other Member States of the European Union.

17.      Articles 3 to 5 of the Hague Convention on International Child Abduction provide:

‘Article 3

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 subparagraph (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.

Article 4

The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.

Article 5

For the purposes of this Convention:

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

(b)      “rights of access” shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.’

18.      Article 13 of the Hague Convention on International Child Abduction is worded as follows:

‘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.’

C –    National law

19.      It is apparent from the order for reference that, in private-law proceedings concerning children in England and Wales, the courts can make orders, under Section 8 of the Children Act 1989, governing residence (‘residence order’) or contact (‘contact order’), prohibiting certain acts (‘prohibited steps order’) (‘injunctions’) or concerning specific difficulties (‘specific issue order’).

20.      Under Section 4 of the Children Act 1989, a court can also order that a father is to have parental responsibility for a child. In England and Wales, where a father is not married to the mother of their child, he does not automatically acquire parental responsibility, for the child by operation of law. He has to acquire parental responsibility, either by being named as the father on the child’s birth certificate, by entering into a parental responsibility agreement with the mother, or by a court making a parental responsibility order.

21.      Finally, the order for reference states that the courts of England and Wales have accepted (6) that, when they are seised of an application seeking orders of a custodial nature with respect to a child, they may themselves acquire such a right of custody, even if the party applying does not yet have such rights.

II – The facts and the main proceedings

A –    The circumstances underlying the dispute in the main proceedings

22.      On the basis of the information provided by the referring court, extracted from the written submissions of the appellant and respondent in the main proceedings or gathered at the hearing, the facts at issue in the main proceedings can be summarised as follows.

23.      The appellant in the main proceedings, Ms Mercredi, who is a French national, and the respondent in the main proceedings, Mr Chaffe, who is a British national, are the parents of a child who is also a French national and who was born in the United Kingdom on 11 August 2009. The parents are not married to each other; they lived together for a number of years until 1 August 2009, the date on which the father left the shared residence.

24.      On 7 October 2009, that is two months later, the mother left England with the child for her country of origin, where her family lives, namely the island of La Réunion, a French overseas département, where they arrived the following day, 8 October 2009. It is common ground that the father of the child was not informed of their departure. It is also common ground that that departure was lawful because, on that date, the mother of the child was the only person who had parental responsibility for the child.

25.      The father of the child then initiated a number of actions, both before the English courts with a view to acquiring parental responsibility, rights of custody and/or rights of contact in regard to the child and before the French courts under the Hague Convention on International Child Abduction. The mother also brought, before the French courts, an action for parental responsibility with respect to the child and rights of custody.

B –    The actions brought in England

26.      On 9 October 2009, two days after the departure of the mother and child, the father of the child brought an action, by telephone, before the Duty Judge of the High Court of Justice (England and Wales), Family Division (United Kingdom) (‘Duty High Court Judge’). On the same day, the Duty High Court Judge before whom the matter was thus brought made a location order with regard to the child and directed the matter to come before him on 12 October 2009.

27.      On 12 October 2009, the father of the child filed his applications at the hearing before the Duty High Court Judge for, inter alia, parental responsibility for the child, shared residence and rights of contact. On the same day the Duty High Court Judge made an order requiring the return of the child to the territory of England and Wales. It is common ground that the mother of the child did not have notice of the father’s application and was neither present nor legally represented at that hearing.

28.      In that order of 12 October 2009, the Duty High Court Judge held, first, that the English court was seised of the case on the date on which the father of the child had telephoned him, that is on 9 October 2009, secondly, that from that date, both the English court and the father of the child had rights of custody with respect to the child, thirdly, that, on the same date, the child was still habitually resident in England and, fourthly and consequently, that the English courts had jurisdiction over that child.

29.      It is accepted that the order of 12 October 2009 was served on the mother on 16 October 2009, but she did not comply with it.

30.      On 15 October 2009, the father made an application under the Hague Convention on International Child Abduction. (7)

31.      On 28 October 2009, the mother of the child brought an action before the Tribunal de grande instance de Saint‑Denis (Court of First Instance, St Denis) (France). (8)

32.      On 26 January 2010, within the context of the action brought before the High Court of Justice (England and Wales), Family Division (United Kingdom), the father made a further application for a declaration that the child was habitually resident in England, that the English courts had exclusive jurisdiction with respect to the child, that he himself and the English courts had rights of custody with respect to the child and that the child was being wrongfully retained in La Réunion. Those applications were provisionally granted by an order which also called upon the mother to furnish evidence. That order was sent to the French central authority and served on the mother.

33.      On 15 April 2010, the case was heard by the High Court of Justice (England and Wales), Family Division (United Kingdom). In the order made on the same day, the High Court of Justice (England and Wales), Family Division, held that the English court became seised of the case on 9 October 2009, the date on which the father of the child had brought the matter before the Duty High Court Judge by telephone, and that, from that date, the English court had rights of custody with respect to the child. It also held that the father of the child also had rights of custody from the same date in so far as orders had been made in his favour. Lastly, it held that the child was still habitually resident in England at the moment that the English court and the father obtained those rights of custody and that, therefore, the English courts had jurisdiction on 9 October 2009.

34.      It is common ground that the mother of the child did not appear at the hearing on 15 April 2010, but her French lawyer was able to make written observations.

35.      On 29 June 2010, the father of the child is reported to have applied to the Tribunal de grande instance de Saint-Denis for the recognition and execution of the order of the High Court of Justice (England and Wales), Family Division.

36.      On 24 June and 12 July 2010, the High Court of Justice (England and Wales), Family Division, made further orders, the latter requiring the mother of the child to arrange for the child to have provisional contact with her father in La Réunion between 29 July and 12 August 2010.

37.      On 12 July 2010, the mother of the child filed a notice of appeal against the order of the Duty High Court Judge of 12 October 2009 and the order of the High Court of Justice (England and Wales), Family Division, of 15 April 2010 before the Court of Appeal (England and Wales) (Civil Division), which decided to refer questions to the Court for a preliminary ruling.

C –    The actions brought in France

1.      The action brought by the mother

38.      On 28 October 2009, the mother of the child brought an action before the Tribunal de grande instance de Saint‑Denis for exclusive parental authority over the child and to fix the child’s domicile at her address. The father of the child was not served notice that that action was being brought, and became aware of it in the context of the action brought under the Hague Convention on International Child Abduction.

39.      On 27 January 2010, the solicitors for the father of the child are reported to have applied to the Tribunal de grande instance de Saint‑Denis to stay the proceedings on the mother’s application in accordance with the provisions of Article 16 of the Hague Convention on International Child Abduction and Article 19 of Regulation No 2201/2003.

40.      By judgment of 23 June 2010, the Tribunal de grande instance de Saint-Denis granted sole parental authority over the child to the mother and established her habitual residence at the mother’s address. The father of the child was neither present nor represented at the hearing, which was held on 31 May 2010.

2.      The father’s application under the Hague Convention on International Child Abduction

41.      On 15 October 2009, the father of the child lodged an application with the English central authority for return of the child to England and Wales pursuant to the Hague Convention on International Child Abduction, which, on 18 December 2009, led to the opening of proceedings before the Tribunal de grande instance de Saint‑Denis.

42.      The Tribunal de grande instance de Saint‑Denis is reported to have ordered the mother to appear before it pursuant to the Hague Convention on International Child Abduction. The summons is reported to have referred specifically to the order of the Duty High Court Judge of 12 October 2009.

43.      The father’s application under the Hague Convention on International Child Abduction was dismissed on 15 March 2010, on the ground that he did not have rights of custody within the meaning of Articles 3 and 5 of the Hague Convention on International Child Abduction.

III – The questions referred and the application for an urgent preliminary ruling

44.      The Court of Appeal (England and Wales) (Civil Division), before which the mother of the child brought an appeal, decided by decision of 8 October 2010, received by the Court on 18 October 2010, to refer the following three questions to the Court of Justice for a preliminary ruling:

‘(1)      Please clarify the appropriate test for determining the habitual residence of a child for the purpose of:

–        Article 8 of Regulation (EC) No 2201/2003; 

–        Article 10 of Regulation (EC) No 2201/2003?

(2)      Is a Court an “institution or other body” to which rights of custody can be attributed for the purposes of the provisions of Regulation (EC) No 2201/2003?

(3)      Does Article 10 have a continuing application after the courts of the requested Member State have rejected an application for the return of the child under the 1980 Hague Abduction Convention on the basis that Articles 3 and 5 are not made out?

In particular, how should a conflict between a determination of the requested state that the requirements of Articles 3 and 5 of the 1980 Hague Abduction Convention are not met and a determination of the requesting state that the requirements of Articles 3 and 5 are met be resolved?’

45.      In its order for reference, the Court of Appeal (England and Wales) (Civil Division) stated that it was requesting the urgent procedure as the purpose of the reference is to identify the court having jurisdiction under European Union law over matters of parental responsibility for the child. It stated that, until that court was identified, no decision could be made about the applications that had been made by the father of the child for orders enabling them to have contact with each other.

46.      By decision of 28 October 2010, the Court decided to uphold the request of the referring court to hear the present case under the urgent preliminary procedure referred to in Article 104b of the Court’s Rules of Procedure.

47.      The appellant and respondent in the main proceedings, the United Kingdom, German, and French Governments and Ireland and the European Commission submitted written observations at the hearing held on 1 December 2010.

IV – Preliminary remarks

48.      Before starting to examine the questions from the referring court, it is necessary to make two points which are of importance to all the arguments set out below.

49.      The first point, which concerns the legal classification of the situation underlying the dispute in the main proceedings, does not, for the moment, call for lengthy explanations. It must be borne in mind that the removal of the child took place lawfully in the light of both Regulation No 2201/2003 and the Hague Convention on International Child Abduction, a matter on which there is agreement, as we shall have occasion to note when examining the relevance of the second and third questions, (9) between the father  (10) and the mother of the child, the governments and Ireland which lodged written observations and the Commission.

50.      The second point, which concerns the relevant date for establishing international jurisdiction pursuant to Regulation No 2201/2003, by contrast calls for a somewhat more delicate approach.

51.      In general terms, Article 8(1) of Regulation No 2201/2003 states that it is on the date on which the court of a Member State is seised that it must determine whether the child is habitually resident in that Member State. If the child is habitually resident in the Member State of the court seised, that court may, on the date on which it is seised, declare itself to have jurisdiction on the basis of Article 8(1) of Regulation No 2201/2003. On the other hand, if the child is no longer habitually resident in the Member State of the court seised on the day on which it is seised, that court cannot declare itself to have jurisdiction, at least on the basis of Article 8(1) of Regulation No 2201/2003. However, it may possibly declare itself to have jurisdiction, depending on the circumstances, on the basis of Articles 9, 10, 12 or 14 of Regulation No 2201/2003, or decline its jurisdiction on the basis of Articles 13 or 15 thereof. (11)

52.      In its order for reference, the Court of Appeal (England and Wales) (Civil Division) pointed out that two dates might be considered relevant in this respect, 9 October 2009, the date on which the father of the child brought the matter before the Duty High Court Judge by telephone, and that of 12 October 2009, the date on which the father formally lodged the applications at the hearing before the same judge. In its order of 15 April 2010, the High Court of Justice (England and Wales), Family Division, expressly states that, from the evening of 9 October 2009, an English court was seised and, like the father, had rights of custody in relation to the child.

53.      It must be emphasised, in this regard, that, although it is a matter for the referring court to determine which of those two dates must be considered to be relevant, it is none the less Regulation No 2201/2003 itself which establishes the conditions under which a court is deemed to be seised.

54.      Article 16(a) of Regulation No 2201/2003 states that a court is to be deemed to be seised at the time when the document instituting the proceedings or an equivalent document is lodged with it, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent. (12)

55.      In the circumstances of the main proceedings and having regard to the information provided by the referring court, it appears that only 12 October 2009 may be regarded as relevant in the light of the provisions of Article 16 of Regulation No 2201/2003, given that it is, none the less, a matter for the referring court to ensure that the formalities of notification or service have been observed, in accordance with the provisions of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000. (13)

56.      However, it must be stressed that the Court has before it a reference for a preliminary ruling made in the course of an appeal proceedings against two orders made by two compositions of a court which ruled on their jurisdiction pursuant to Regulation No 2201/2003, the first very shortly after the mother’s departure with the child, on 12 October 2009, and the second almost six months after that departure, on 15 April 2010.

57.      This specific factor, together with the very general character of the first question referred by the national court, means that it is difficult to determine whether it intends to rule, on appeal, on the jurisdiction of the two lower courts or, within the context of that appeal, on its own jurisdiction under Regulation No 2201/2003. In the light of the criteria defined by the Court in A, cited above, and those which will be defined in the context of the present case, the establishment of the habitual residence of the child is a much more delicate task to perform in the first case than in the second. (14) The arguments below follow, none the less, from the premiss that the habitual residence of the child must be determined on the date on which the English courts were first seised, 12 October 2009, it being specified that it is for the referring court to decide on the position it wishes to adopt in that regard.

V –    The first question

58.      By its first question, the referring court asks the Court of Justice to provide it with the appropriate ‘test’ to establish the habitual residence of a child within the meaning of Regulation No 2201/2003. (15) It is, first of all, fairly difficult to determine whether the referring court expects to receive from the Court a general reply to an abstract question or whether it wishes, on the contrary, to receive an answer suited to the circumstances of the dispute before it. However, it does appear that the referring court wishes to have a specific answer to the problem facing it.

59.      That being so, the referring court asks us directly, with a view to establishing its jurisdiction under Regulation No 2201/2003, about the concept of habitual residence as it appears, in particular, in Article 8 thereof. It might be inferred from that that habitual residence is the sole, unique basis on which the jurisdiction of the national courts may be determined. In fact, Article 8(1) of Regulation No 2201/2003 exists within a broader framework. Article 8(2) of that regulation expressly states that the general jurisdiction which it establishes is substantiated only if the other criteria for jurisdiction laid down are not, and habitual residence is only one criterion among others which are equally likely to form the basis for subsidiary jurisdiction.

60.      From that point of view, the referring court must clearly be informed that the first ‘test’ for establishing its jurisdiction under Regulation No 2201/2003 should be sought in the structural position held by the concept of habitual residence in the scheme of that regulation. The concept of habitual residence, important as it may be, offers only limited possibilities. It must be understood as a concept which must, when the time comes, be able to give way to other, alternative concepts or categories.

61.      That is why we are of the opinion that the reply which must be given to the first question must be provided in two stages. In the first stage, we shall attempt to elucidate as far as possible the reference points identified in particular in A, cited above, (16) while endeavouring to take account at all times of the particular circumstances of the case in the main proceedings without however taking the place of the referring court in the task it has to perform, namely to settle the dispute brought before it. In the second stage, and with a view to giving a useful reply to the referring court, we propose to draw attention to all the paths opened up by Regulation No 2201/2003 for the purposes of achieving its prime objective, namely ensuring the determination of jurisdiction.

A –    The determination of the ‘habitual residence’ of the child

62.      In A, cited above, (17) the Court provided an interpretation of the concept of habitual residence of a child within the meaning of Article 8(1) of Regulation No 2201/2003 designed such as to permit the national courts to rule in any event on their own jurisdiction under that regulation. It is apparent, however, from the order for reference that the methodology set out by the Court in that judgment is not sufficient. It seems necessary to provide additional information permitting the national courts to deal with situations in which the habitual residence of the child has been transferred.

1.      The concept of habitual residence: the lessons from A

63.      First, in A, cited above, the Court established that Regulation No 2201/2003 did not define the concept of habitual residence and that it made no express reference to the law of the Member States for the purpose of determining its meaning and scope. The Court inferred from this, in accordance with its case-law, that that determination must be made in the light of the context of the relevant provisions and the objective of the regulation. In that regard, it highlighted the objective which is apparent from recital 12 in the preamble to Regulation No 2201/2003, according to which the grounds of jurisdiction which it establishes are shaped in the light of the best interests of the child, and in particular on the criterion of proximity. (18)

64.      The concept of habitual residence within the meaning of Regulation No 2201/2003 is thus a European Union concept, which must accordingly be given an autonomous and uniform interpretation throughout the European Union. (19) The Court stated, in that regard, that that autonomy should manifest itself in a certain independence as regards the concepts, whether identical or related, used in other fields of European Union law, such as that of the social security of migrant workers and the law on public service. (20)

65.      Second, the Court considered that the habitual residence of a child must ‘be established on the basis of all the circumstances specific to each individual case’. (21) It stated, in that regard, that, in addition to the physical presence of the child in a Member State, other factors must be considered which are capable of showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment. (22) It mentioned, among the non‑exclusive list of factors, the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State. (23) It added that the parents’ intention 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 the host Member State, may constitute an indicator of the transfer of the habitual residence. (24)

66.      Thus it follows from A, cited above, that the habitual residence, within the meaning of Article 8(1) of Regulation No 2201/2003, ‘corresponds to the place which reflects some degree of integration by the child in a social and family environment’. However, that judgment in reality provides more than a definition of the concept of habitual residence. It lays down the outline of a test for identifying the habitual residence of a child. That test consists in assessing and weighing up a set of objective and subjective, quantitative and qualitative indicators, including timing and intent, likely to establish the integration of a child in a social and family environment, an integration which must exhibit a certain intensity.

67.      Third, the Court held that it is for the national courts to establish the place of a child’s habitual residence; those courts should undertake an overall assessment of the situation and of the different factors and relevant indicators. (25) The Court has not, however, provided more detailed information on the obligations incumbent on the national courts in that regard.

68.      It could, following this summary, be considered that, in so far as it provides the framework, the criteria and the method for determining the habitual residence of a child within the meaning of Regulation No 2201/2003, A, cited above, already contains a reply, which is both precise and complete, to the first question raised by the referring court.

69.      However, that is not the view of the referring court, which, although it is of course fully aware of A, cited above, none the less considered it necessary to raise this question. (26)

70.      The referring court therefore clearly wishes the Court to go beyond the details already set out in A, cited above, to provide it with more specific information permitting it to consider, in accordance with European Union law, the contradictory arguments exchanged by the parties in the main proceedings on that point and to settle the dispute brought before it. The question from the referring court must thus be understood, no more nor less, as an invitation to specify the criteria permitting the determination of the circumstances in which it may be considered that, in the case of a child who with her mother has lawfully left the territory of a Member State where she was habitually resident, there was a ‘loss’ of that first habitual residence and the acquisition of a new habitual residence.

2.      The ‘loss’ and ‘acquisition’ of a habitual residence in the case of lawful removal

a)      The conditions for the transfer of habitual residence

71.      For it to be held that there has been a change of habitual residence, there should have been a ‘loss’ of the first habitual residence and ‘acquisition’ of a new habitual residence. (27) Although one person can effectively have more than one ‘de facto’ residence, that person cannot have more than one habitual residence. Moreover, the situation of a person who decides to leave a Member State to set up in another and live there permanently is not the same as that of a person who, initially, temporarily establishes his de facto residence in a Member State, but ultimately settles there after a period of time. In the first case, the loss of the initial habitual residence and the acquisition of the new one are simultaneous events. In the second case, the acquisition of the habitual residence in the new Member State can probably be deemed to have taken effect only after a period of time has elapsed. (28) However, the indicators of the loss and acquisition of a habitual residence still have to be determined.

b)      The indicators of a transfer of habitual residence

72.      In this regard, very particular attention must be paid to the provisions of Article 9 of Regulation No 2201/2003 and, in the circumstances of the main proceedings, to the wish of the mother of the child.

i)      The interpretation factors inferred from Article 9 of Regulation No 2201/2003

73.      Where a child moves lawfully from one Member State to another, where he or she acquires a new habitual residence, Article 9 of Regulation No 2201/2003 provides, inter alia, for extension of the jurisdiction of the courts of the Member State of the first habitual residence only for a period of three months. Regulation No 2201/2003 therefore accepts that a child may acquire a new habitual residence within three months. (29)

74.      Depending on the language version used, the interpretation of that provision is subject to subtle, not to say divergent, variations. Thus, for example, the German version (30) of that provision tends to accept the idea that lawful removal normally entails acquisition of a new habitual residence, while it appears clearly from the French version (31) that the applicability of that provision is subject to the condition, first, that the child has been lawfully removed and, secondly, that he has acquired a new habitual residence.

75.      Without dwelling too long on the well-known case‑law of the Court concerning the interpretation of multilingual texts of European Union law, it will be noted that that provision must be interpreted taking account of all its language versions and by reference to both the purpose and general scheme of the rules of which it forms a part, (32) and the real intention of its author and the aim the latter seeks to achieve. (33)

76.      Despite its rather deceptive title, (34) Article 9 of Regulation No 2201/2003 in fact lays down the principle of a transfer of jurisdiction to the courts of the Member State of the child’s new habitual residence in the event of the lawful removal of that child. The jurisdiction of the courts of the Member State of the first residence is retained, for a limited period of three months, only for the purposes of permitting the holder of access rights obliged to accept the removal of the child to bring an action before the courts which granted those access rights with a view to modifying them on the basis of the new circumstances.

77.      The mechanism established by that provision presupposes, accordingly, that the lawful removal of a person who has parental authority in relation to a child to another Member State normally implies the acquisition of a new habitual residence in that Member State. Therefore, unless there are exceptional circumstances, a lawful removal should normally imply the transfer of the international jurisdiction of the courts of the first Member State to the courts of the new Member State, which are deemed to be best placed by application of the principle of proximity. (35)

78.      As it can be inferred from the provisions of Article 9 of Regulation No 2201/2003 that lawful removal from one Member State to another Member State, provided it exhibits all the signs of indefinite, longer-term establishment in that Member State, constitutes a fairly strong indicator of the acquisition of habitual residence in that Member State, that indicator should be raised to the level of a presumption, albeit weak, of acquisition of a new habitual residence, with the consequence that it would then be for the party contesting that acquisition to produce evidence to prove that it has not occurred in the circumstances at issue.

79.      It should, however, be pointed out that, although those factors are important, they are certainly not the only factors which must be taken into consideration, since the examination which the national courts must carry out should, in any event, always take place at the end of an overall assessment of the situation in the terms set out in A, cited above, and the weighing-up of all the relevant factors, with the aim of establishing the settlement of the child in his or her new family and social environment.

80.      It must be stated here that it does not appear desirable to fix the examination by the national courts of situations involving the transfer of habitual residence by, for example, laying down by judicial decision a standard period (36) at the end of which a change of residence may be deemed to have taken effect, (37) or by deciding that the lawful removal of a child entails the immediate loss of his or her first habitual residence, from the moment it takes place. (38) These two approaches would be in direct opposition to the flexible and pragmatic approach recommended by the Court in A, cited above, without necessarily being able to deal with all conceivable situations.

ii)    The importance of the mother’s wishes in assessing the habitual residence of a child lawfully removed

81.      As has already been pointed out, it is the court first seised which has to determine, on the date on which it is seised, which is the habitual residence of the child, in accordance with the methodology laid down by the Court in A, cited above. Although, in that judgment, the Court did not rule on that point, it is clear that the search for pointers permitting that court to form its opinion must be carried out in accordance with the relevant provisions of national law, while, none the less, complying with the rules and general principles of European Union law. However, in circumstances such as those at issue in the main proceedings, taking account of the wishes of the mother of the child, in so far as she was the only person with parental authority over the child on the date on which she was removed, was a factor of very particular relevance.

82.      It will be recalled that, in the main proceedings, the mother and child left England on 7 October 2009. The English courts, which were seised on 12 October 2009 and were the first to be called upon to establish their jurisdiction in accordance with Regulation No 2201/2003, should therefore determine whether, as soon as she left with her mother, the child had lost her habitual residence in England and, on the date on which those courts were seised, had acquired a new habitual residence in France.

83.      Seemingly, as is clear from the order of 15 April 2010, the mother’s wish to leave England definitively with her daughter could, on the one hand, be inferred from a number of objective facts, such as the purchase of a one-way air ticket, and a number of statements demonstrating that intention more or less clearly. By contrast, the fact that the mother sold the car which she owned in England was not considered to be sufficiently conclusive in that regard. None the less, on the other hand, that wish could be seriously doubted in the light of the fact that the mother had not informed either her employer or the owner of her apartment of her departure.

84.      Moreover, although there was little doubt as to the mother’s wish to leave England, other factors allowed doubt to be raised as to her firm intention to settle in La Réunion. It could, in particular, be inferred from the correspondence exchanged shortly before her departure, and in particular from a card posted from the airport on the day of her departure, that that departure was more of a response to the stress caused by the father’s threats to bring judicial proceedings with a view to obtaining recognition of his parental authority over the child than a mature, considered decision to make a new life in La Réunion.

85.      Admittedly, as has been pointed out above, lawful departure from one Member State and the establishment of a new residence in another Member State do not necessarily, automatically and immediately, imply the acquisition of a new habitual residence in the second Member State. It remains the case, however, that, in a situation such as that at issue in the main proceedings, the wish of the person who has sole parental authority over the child must undoubtedly be a primary consideration, as the German Government observed during the hearing.

86.      That consideration was all the more necessary in the main proceedings since, at the time of her removal, the child was an infant.

87.      The child’s age may be taken into consideration both in the context of examining the loss of a habitual residence and in that of the acquisition of a new habitual residence. As a very young child is particularly dependent on his or her mother, who constitutes his or her ‘life horizon’, it is clear that the mother’s wish lawfully to leave one Member State to settle or resettle in another Member State is a crucial factor in assessing the loss of that child’s habitual residence. The child’s extreme youth implies, moreover, that the conditions for her integration into her new family and social environment are likely to be satisfied very quickly.

88.      That primary consideration of the wish of the person with sole parental authority does not in any way imply that there is no need to take other factors into account.

89.      On the contrary, it must be possible to confirm that wish by means of tangible factors which, as the Court pointed out in A, cited above, may be the purchase or lease of a residence in the new Member State. However, a return to one’s country of origin or a return to join family members are equally relevant factors in assessing that wish. That may particularly be the case in a situation such as that in the main proceedings, where the father has left the shared residence shortly before the birth of the child. Both psychological and financial considerations may also, in such circumstances, facilitate assessment of the significance of a departure.

90.      As the German Government pointed out during the hearing, that wish cannot, however, be disregarded on the sole basis of an allegation that the removal of the child is essentially motivated by the concern to retain exclusive rights of custody.

91.      The father of the child has argued, in essence, in that regard, that the mother’s departure with the child took place specifically in order to enable her to remove herself from the jurisdiction of the English courts and with the aim of establishing artificial legal and jurisdictional links, contrary to the right of both the child and her father to a family life guaranteed by Article 7 of the Charter and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, as well as the rights of the child as guaranteed by Article 24 of the Charter. He points out that it is in real life that the harmful effects of child abduction are felt and that those effects cannot be relativised on the basis of abstract legal considerations such as whether, at the time of the child’s removal, parental responsibility was held by the mother alone or by both parents. He adds that neither Regulation No 2201/2003 nor the Hague Convention on International Child Abduction establishes distinctions based on the parents’ status, according to whether or not they are married.

92.      Even if those allegations corresponded to reality, which cannot be determined on the basis of the file alone, they must be set aside.

93.      It is important not to lose sight of the fact that the sole objective of determining the habitual residence of a child is to identify the court which, in accordance with the principle of proximity and in the best interests of the child, is deemed to be closest to the child. That examination, as has already been pointed out, must be carried out from the point of view of the child and never from the point of view of the parents, whatever the legitimacy of their application concerning the child.

94.      The national courts cannot, without undermining the very foundations on which Regulation No 2201/2003 is based, establish their jurisdiction on the sole basis of the consideration that the legitimate rights of the applicants could not be adequately protected by the courts of another Member State.

95.      In conclusion, it is particularly important to note that the national courts called upon to rule on their jurisdiction under Article 8(1) of Regulation No 2201/2003 must, in the context of determining the habitual residence of a child and in particular for the purposes of assessing whether a transfer of habitual residence has genuinely occurred following a lawful removal, take all the measures necessary to give the person with sole parental responsibility, who is responsible for the removal, the means to be given a full and complete hearing. It is essential not only that that person should have been able to submit observations, but also that everything be done to give that person the opportunity to explain the reasons for his or her departure.

96.      It is clear from the order for reference that, although that was indeed the case before the order of 15 April 2010 was made, it was not the case prior to the order of 12 October 2009, the date on which the court was first seised within the meaning of Article 19(2) of Regulation No 2201/2003 in the dispute in the main proceedings.

B –    The assessment of the jurisdiction of the national courts in cases involving a change of habitual residence

97.      Starting from the principle that the Court must, by its preliminary ruling, provide a useful and complete answer to the question from the referring court and, secondarily, give all the courts of the Member States required to apply Regulation No 2201/2003 the keys enabling them to rule on their own jurisdiction, it would be wise to point out that Regulation No 2201/2003 has established a system of jurisdiction which is both complete and coherent, within the framework of which the habitual residence of a child is only one of the criteria, albeit the most important, on the basis of which the national courts must establish their jurisdiction. It is therefore proposed to provide some clarification as to what is and must be the function of the national courts under Regulation No 2201/2003.

1.      Clarification of the function of the national courts under Regulation No 2201/2003

98.      Article 8(1) of Regulation No 2201/2003, which establishes the general jurisdiction of the court where the child is habitually resident, applies, in accordance with its paragraph 2, only subject to the provisions of Articles 9, 10 and 12 of that regulation.

99.      The courts of the Member States called upon to rule on their jurisdiction under Regulation No 2201/2003 must therefore, in order to do so, follow the line laid down by Article 8(2) of that regulation. They must first of all examine whether they have jurisdiction pursuant to Articles 9, 10 and 12 of Regulation No 2201/2003. If not, they must establish their jurisdiction under Article 8(1) of that regulation within the framework and according to the method laid down by the Court in its case-law, and in particular in A, cited above, to determine the habitual residence of the child.

100. Assuming that the method thus followed does not permit the habitual residence of the child to be determined, the national courts seised must then rule on the basis of the other provisions of Regulation No 2201/2003, either under Article 13 thereof if it is impossible to determine the habitual residence of the child, or under Article 15 of that regulation if it appears reasonable to them to decline their jurisdiction based on the habitual residence of the child. (39)

101. It is important, in that regard, to emphasise the differing scope of the function of the national courts under Regulation No 2201/2003. (40)

102. Article 17 of Regulation No 2201/2003 imposes on the national courts, where they have no jurisdiction under that regulation and where a court of another Member State has jurisdiction by virtue of that regulation, the obligation to declare of their own motion that they have no jurisdiction.

103. However, it can certainly be inferred from the general scheme of Regulation No 2201/2003 that it also obliges them, in addition to examining their own jurisdiction, (41) if appropriate by requiring them to ask the parties to submit observations on the matter, (42) of their own motion to base their jurisdiction on that regulation. Moreover, in this context, it is for them to examine, with a view to safeguarding the child’s best interests, all of the possible rights to jurisdiction and, in particular, the expediency of declining their own jurisdiction in favour of another, better-placed court.

104. The Court did not rule otherwise in A, cited above, (43) where it mentions the exceptional cases in which, where the habitual residence of a child cannot be determined, the national court must decide, pursuant to Article 13 of Regulation No 2201/2003, to decline its jurisdiction in favour of the courts of the Member State in which the child is present. Similarly, a national court may decline its jurisdiction on the basis of Article 16 of that regulation. These two possibilities will be examined in turn.

2.      Examination of the expediency of referral to another court

105. The main proceedings provide a very good illustration of the conditions under which a court might refer a case to another court. In the light of the doubts expressed in its order of 15 April 2010, the High Court of Justice (England and Wales), Family Division, could certainly have declined its jurisdiction on the basis of Article 13 of Regulation No 2201/2003. The Court of Appeal (England and Wales) (Civil Division), for its part, given the development of the situation, could have decided to refer the case to the French courts, which are now undoubtedly better placed to rule on the dispute in the main proceedings.

a)      Referral to the court in the place where the child is present: Article 13 of Regulation No 2201/2003

106. Article 13(1) of Regulation No 2201/2003 provides that, where a child’s habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12 of that regulation, the courts of the Member State where the child is present have jurisdiction.

107. In its statement of the reasons for its decision to refer, the national court asked whether it could be considered that, on 12 October 2009, the child no longer had a habitual residence.

108. The Commission mentioned that possibility in its written submissions. Referring to a judgment from Lord Brandon of Oakbrook, (44) it points out that a person can cease to reside habitually in a Member State in a single day, if he leaves it with the firm intention not to return there and decides, instead, to transfer his residence permanently to another Member State. However, that person cannot become a habitual resident of the second Member State in a single day, as a relatively long period and a firm intention are required to do so. During that relatively long period, the person will therefore have lost his habitual residence in the first Member State without for that matter acquiring a new habitual residence in the second Member State. The Commission infers from this that it is for the court to determine whether the mother had the firm intention not to return to England, and it is for her to establish that in accordance with the provisions of the national law of the referring court.

109. Similarly, in a slightly different register, the United Kingdom Government argued that, after having taken into consideration all the relevant factors, and on the basis of the specific details of the case at issue, a national court could conclude that a child could lose his habitual residence in a Member State immediately after his departure from that State. It points out, in that regard, that such a situation does not imply reduced protection for the child, in so far as Article 13 of Regulation No 2201/2003 provides specifically for the jurisdiction of the Member State in which the child is present.

110. It might therefore again be stressed that it is for the national courts to examine whether the conditions for the application of Article 13 of Regulation No 2201/2003 are satisfied and whether, accordingly, that provision should be applied.

b)      Referral to the court which is best placed: Article 15 of Regulation No 2201/2003 and the plea of forum non conveniens

111. Article 15 of Regulation No 2201/2003 provides that, by way of exception, the courts of a Member State having jurisdiction may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, and where this is in the best interests of the child, either stay the case and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4 of that article, or request a court of another Member State to assume jurisdiction in accordance with paragraph 5 of that article.

112. Article 15(2) of Regulation No 2201/2003 provides that that possibility may be used, inter alia, by the national court seised of its own motion.

113. Therefore, it should be emphasised that it is for the referring court to examine whether the conditions for the application of Article 15 of Regulation No 2201/2003 are met in the situation at issue in the main proceedings and whether, accordingly, it is appropriate to apply that provision.

C –    Conclusion

114. The first question referred by the national court therefore calls for the following reply. In general, a national court seised of an application concerning parental responsibility in relation to a child must rule explicitly on its jurisdiction under Regulation No 2201/2003 after having examined in turn the various bases on which that jurisdiction may be established pursuant to that regulation. In that examination, that court must determine, in the best interests of the child, the habitual residence of that child, assessing all the factual circumstances specific to the situation at issue. In particular, in circumstances such as those of the main proceedings, which are characterised, first, by the lawfulness of the removal of a child from one Member State where she was habitually resident to another Member State and, second, by the fact that the court in the Member State in which she was first resident was seised immediately but after the event, that court must, more specifically, endeavour to determine whether that removal effectively, in the short term, entails the loss of the first habitual residence of the child and the acquisition of a new habitual residence in the Member State of arrival. To that end, the wishes of the person who has parental authority when the lawful removal takes place must be a primary and identifiable consideration, bearing in mind in particular the age of the child and after having given the person concerned the opportunity to submit his or her observations and to explain fully and completely the reasons for that removal. It is the person contesting the acquisition of a new habitual residence in such circumstances who bears the burden of producing evidence to prove that that removal is not motivated by the wish to establish a new habitual residence in the Member State of arrival. Finally, if it is not possible for that person to establish the habitual residence of the child, the national court must then establish it and, while complying with the principle of proximity, rule on its own jurisdiction on the basis of the provisions of Article 13 or Article 15 of Regulation No 2201/2003.

VI – The second and third questions

A –    Preliminary remarks on the relevance of the questions raised

1.      Positioning the problem

115. By the second indent of its first question, (45) and its third question, the referring court asks the Court of Justice about the interpretation of Article 10 of Regulation No 2201/2003 establishing the grounds of jurisdiction in cases of child abduction.

116. Moreover, by its second question, the referring court asks whether, for the purposes of the provisions of Regulation No 2201/2003, a court may be an ‘institution or other body’, which are concepts and an expression used only in Articles 10 and 11 thereof.

117. As the Commission pointed out in its written submissions, the referring court does not set out the reasons why it requires a reply to that question in order to settle the dispute brought before it. However, it points out that that question appears to be based on the premiss that, if the English courts acquired rights of custody from 9 October 2010, the failure to return the child to England is unlawful and therefore such as to trigger the application of both the Hague Convention on International Child Abduction and Article 11 of Regulation No 2201/2003, which deals specifically with the return of the child in the case of wrongful removal or retention.

118. The father of the child argues, inter alia, in that regard, that the mother’s departure with the child was not initially wrongful, but the failure to return the child to England became wrongful in his view as the mother did not comply with the various orders made by the English courts.

119. The second question raised by the referring court could also, in that regard, be regarded as implicitly referring to the provisions of Article 11 of Regulation No 2201/2003.

120. Thus it is clear from the questions from the referring court that it considers, at least implicitly, that the facts at issue in the main proceedings are comparable to child abduction and that, therefore, both the Hague Convention on International Child Abduction and Articles 10 and 11 of Regulation No 2201/2003 are applicable.

121. It is apparent from the order for reference itself that the appellant in the main proceedings lawfully left England for La Réunion, which, after all, was established in the order made by the High Court of Justice (England and Wales), Family Division, on 15 April 2010. The order for reference states that the appellant in the main proceedings had sole parental responsibility in relation to the child and, consequently, was the only person with rights of custody within the meaning of Articles 3 and 5 of the Hague Convention on International Child Abduction.

122. The referring court states that, in England and Wales, where a father is not married to the mother of the child he does not automatically acquire parental responsibility for the child by operation of law. He has to acquire parental responsibility either by being named as the father on the child’s birth certificate, by entering into a parental responsibility agreement with the mother, or by a court making a parental responsibility order.

123. At the hearing, the German and French Governments also expressed doubts, in the light of the factual situation at issue in the main proceedings, as to the relevance of the questions thus raised by the referring court.

2.      Assessment

124. In that regard it must first of all be pointed out that there may be ‘wrongful removal or retention’ of a child under Article 2(11) of Regulation No 2201/2003 only where 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.

125. In the present case, as the referring court has established, and as both the appellant and respondent in the main proceedings, and the United Kingdom Government and the Commission in their written and oral submissions, as well as the German and French Governments and Ireland in their oral submissions, agree, the departure of the mother with the child was lawful. It occurred neither in contravention of the father’s rights of custody of the child nor in contravention of the rights of custody of another institution or other body. (46)

126. Article 10 of Regulation No 2201/2003, which establishes a specific ground of jurisdiction in cases of child abduction, is specifically applicable only in the case of the wrongful removal or retention of a child within the meaning of Article 2(11) of Regulation No 2201/2003.

127. As the Court ruled in McB., (47) whether a child’s removal is wrongful for the purposes of applying Regulation No 2201/2003 is entirely dependent on the existence of rights of custody, conferred by the relevant national law, in breach of which that removal has taken place.

128. The Court also ruled, in that judgment, that that interpretation of Regulation No 2201/2003 was not incompatible with the rights safeguarded by the Charter, and in particular Articles 7 and 24 thereof, safeguarding, respectively, the right to respect for private and family life and the fundamental rights of the child, provided, however, that the father of the child has exercised his right to submit an application to obtain rights of custody prior to the child’s removal. (48)

129. It must be added, in this regard, that, under the terms of Article 3 of the Hague Convention on International Child Abduction, ‘wrongful removal’ or ‘wrongful retention’ of a child can be deemed to exist only on two conditions. The first is that it is in breach of rights of custody attributed under the law of the State in which the child was habitually resident immediately before the removal or retention. (49) The second is that those rights were actually exercised. (50)

130. The second paragraph of Article 3 of the Hague Convention on International Child Abduction states, moreover, that the rights of custody mentioned 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 the State concerned. In other words, the methods of devolving rights of custody within the meaning of the Hague Convention on International Child Abduction correspond to the three methods of devolving parental responsibility laid down in the legislation of England and Wales.

131. It follows that, in the light of the information provided to the Court by the referring court itself and not contested, Article 10 of Regulation No 2201/2003 does not appear to be applicable to the situation at issue in the main proceedings.

132. None the less, during the hearing, both the appellant and respondent in the main proceedings and the United Kingdom Government and the Commission, in their written and oral submissions, as well as the German and French Governments and Ireland, notwithstanding their doubts in that regard, made a point of providing responses to the questions thus raised.

133. The lines which follow will therefore contain a brief examination of the second and third questions raised by the referring court, albeit only as a secondary point.

134. It would, however, be appropriate to take the opportunity provided by this case to remind the national courts that the obligations incumbent on them under the preliminary ruling procedure established in Article 267 TFEU include the obligation to state the reasons why they consider that a reply to the question or questions raised is necessary in order to settle the dispute brought before them. That obligation is particularly acute in the context of urgent preliminary ruling procedures.

B –    The second question

135. By its second question, the referring court asks the Court to rule on the question whether a court can be an ‘institution or other body’ to which rights of custody may be attributed for the purposes of the provisions of Regulation No 2201/2003.

136. As stated in the preliminary remarks above, this question calls for an interpretation of Articles 10 and 11 of Regulation No 2201/2003, the only provisions of that regulation which, in relation to rights of custody, refer to an ‘institution’ or ‘other body’. (51)

137. Regulation No 2201/2003 does not specify what should be understood by ‘institution’ within the meaning of Articles 10 and 11 thereof.

138. In McB., cited above, (52) the Court, however, stated, in that regard, that, unlike the concept of ‘rights of custody’, a European Union concept independent of the law of the Member States in so far as it is defined in Article 2(9) of Regulation No 2201/2003, determining who has rights of custody, was, in the light of the wording of Article 2(11) of that regulation, a matter for the law of the Member States. (53)

139. The appellant and respondent in the main proceedings, the United Kingdom and French Governments, Ireland and the Commission referred in general terms to McB., cited above, while pointing out, in their written submissions or during the hearing, that they saw no objection to rights of custody being granted to a court.

140. Only the German Government argued, at the hearing, that it was not possible to attribute to a court specifically seised of an application for rights of custody in relation to a child pursuant to Article 1(2)(a) of Regulation No 2201/2003 the character of an institution within the meaning of Articles 10 and 11 thereof without affecting the uniform application of that regulation. None the less, it adds, however, that Regulation No 2201/2003 does not exclude the possibility of attributing such rights to a court.

141. It is therefore, in general terms, considered that, as the Court ruled in McB., cited above, the conditions for granting rights of custody and parental responsibility are a matter for the law of the Member States. However, the question of whether the concept of ‘institution’ referred to in Articles 10 and 11 of Regulation No 2201/2003 must also, in this context, be left to the Member States might, in the light of the objection made by the German Government, be the subject of discussion.

142. It may, in that regard, be observed that Article 2(9) of Regulation No 2201/2003 defines ‘rights of custody’ as ‘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’. Article 2(7) of that regulation states that rights of custody, thus defined, are one of the attributes of parental responsibility, which is itself defined as encompassing ‘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’.

143. A comparison of Article 2(7) of Regulation No 2201/2003, which defines parental responsibility without reference to the law of the Member States, and Article 2(11) of that regulation, which defines wrongful removal and retention, could form the basis for an interpretation according to which it would be for the Court to determine what is covered by the concept of ‘institution’ within the meaning of those two provisions.

144. However, it is rather difficult to imagine that the Court can in fact give an independent and uniform interpretation of that concept, while taking account of the context of the provisions and the objective pursued by the rules in question (54) and endeavouring to confer on it a meaning which fully satisfies the objective pursued by that measure, while otherwise referring the matter to the law of the Member States. (55)

145. In any event, at the hearing the United Kingdom Government and Ireland stressed the importance of the possibility of attributing to a court the character of an institution holding rights of custody in the light of the application of Regulation No 2201/2003 and that of the Hague Convention on International Child Abduction. In certain Member States, as is the case in Ireland and in England and Wales, rights of responsibility and rights of custody are not automatically granted to natural fathers, who may acquire them only with the consent of the mother or, failing that, by decision of the competent courts. In these circumstances, it is essential that the courts thus seised by natural fathers of applications for recognition of their parental authority should have rights of custody. In the absence of such rights, the courts seised could not prevent mothers, in anticipation of decisions which might grant parental authority to fathers, leaving the territory, after proceedings have been brought, with a view to putting themselves beyond their reach.

146. At the hearing, the Commission stated in that regard, in reply to the argument submitted by the German Government, that the rights of custody thus attributed to the courts in those Member States were so attributed on the basis of their legislation, and therefore by operation of law, and not merely because they had been seised.

147. Accordingly, it is proposed that the second question from the referring court should be answered as follows: Article 2(7), (9) and (11) and Articles 10 and 11 of Regulation No 2201/2003 must be interpreted as meaning that a court of a Member State may be an ‘institution or other body’ within the meaning of those provisions, to which rights of custody may be granted for the purposes of the provisions of that regulation, in so far as the legislation of that Member State provides for the grant of those rights of custody by operation of law.

C –    The third question

148. The third question from the referring court concerns the interpretation of Articles 10 and 19(2) of Regulation No 2201/2003 and more specifically the rules applicable in cases where conflicting decisions are adopted by the courts of two Member States, one on the basis of Regulation No 2201/2003 and the other on the basis of the Hague Convention on International Child Abduction.

1.      Submissions of the parties in the main proceedings, the governments of the Member States concerned and the Commission

149. The mother of the child argues primarily that, as the removal of the child was lawful, Article 10 of Regulation No 2201/2003 is not applicable. She states, none the less, that the reply to the first paragraph of the third question from the referring court should be that Article 10(1) of Regulation No 2201/2003 does not continue to apply after the courts of the requested Member State have dismissed an application for the return of the child under the Hague Convention on International Child Abduction. She does not, however, put forward a direct answer to the second paragraph of the third question from the referring court. She merely observes that, if correctly implemented, the scheme of Regulation No 2201/2003 should make it possible to avoid any conflict, and, in that regard, emphasises the need for the courts of the Member States to use the European Judicial Network as well as the need for the uniform application of the rules of lis pendens and strict compliance with the rules of referral under Article 16 of Regulation No 2201/2003. In any event, if the problem of jurisdiction cannot be resolved, it is then for the national courts to apply Article 15 of Regulation No 2201/2003, in order to protect the best interests of children while complying with the Charter and the European Convention for the Protection of Human Rights and Fundamental Freedoms.

150. The father of the child contends that, as the English courts were first seised of an application for parental responsibility, the French court seised of an identical application by the mother on 28 October 2009 should, in accordance with Article 19 of Regulation No 2201/2003, have stayed the proceedings until the jurisdiction of the English courts was established. The decision of the French court of 15 March 2010 on the application for the return of the child pursuant to the Hague Convention on International Child Abduction does not provide a basis for the jurisdiction of the French court.

151. The United Kingdom Government points out that, under the terms of Article 60(e) of Regulation No 2201/2003, that regulation takes precedence over the Hague Convention on International Child Abduction, but, under Article 62 of Regulation No 2201/2003, that convention continues to have effect in relation to matters not governed by the regulation. Noting that Regulation No 2201/2003 governs the application of the Hague Convention on International Child Abduction only to a limited degree where an application is made based upon it, the United Kingdom Government considers that, when it examines its jurisdiction under that regulation, the court of a Member State first seised of a case concerning parental responsibility is not bound by the decision of a court of another Member State which has ruled on an application under that convention.

152. While pointing out at the hearing that the third question from the referring court is not relevant to the resolution of the dispute in the main proceedings, as the removal of the child took place lawfully, the German Government none the less wished to set out its position. It states, in that regard, that, although Article 17 of Regulation No 2201/2003 requires the courts of the Member States to confirm their jurisdiction, under that regulation, as under the Hague Convention on International Child Abduction, there is no provision which determines which court decides at final instance. None the less, as the two instruments are based on the same conditions and the Member States are bound to observe them and to ensure the uniformity of their decisions, the fact that they overlap should make it possible to avoid any dispute. However, as the rules of procedure and of evidence are different, it may be the case that one court of a Member State bases its jurisdiction on Article 10 of Regulation No 2201/2003 when a court of another Member State has previously dismissed a request for return under the Hague Convention on International Child Abduction.

153. The French Government points out, first of all, that, as Article 10 of Regulation No 2201/2003 is not applicable, the first paragraph of the third question from the referring court is not relevant. It takes the view, in response to the second paragraph of the third question from the referring court, that a court seised on the basis of the Hague Convention on International Child Abduction cannot settle any dispute concerning the seising of courts between two courts seised on the basis of Regulation No 2201/2003. Such a dispute concerning the seising of courts is governed by Article 19(2) of Regulation No 2201/2003.

154. The Commission endeavours to reply to the third question by pointing out the rules in Articles 8, 10 and 11 of Regulation No 2201/2003. First, the English court can take jurisdiction on the basis of Article 8 of that regulation, if the habitual residence condition is fulfilled. The decision which it adopts on that basis, whether interim or final, takes effect in accordance with the provisions of Chapter III of that regulation. The seising of a court entails the application of the provisions of Article 19(2) of Regulation No 2201/2003 such that a court of another Member State seised of an action with the same subject-matter and legal basis will have to stay proceedings.

155. Second, while specifying that it is not permissible for the English courts to take jurisdiction on the basis of Article 10 of Regulation No 2201/2003, it considers that, in the same way, the seising of a court on that basis triggers the application of the provisions on lis pendens, unless it is seised only of an application for provisional measures in accordance with Article 20 of Regulation No 2201/2003.

156. Third, it considers that Article 11 of Regulation No 2201/2003 requires a distinction to be made between the competence of the requested State to determine whether it is appropriate to order the return of the child and the competence of the Member State of origin to overturn that decision. The requested State is competent pursuant to the Hague Convention on International Child Abduction and not Article 11 of Regulation No 2201/2003, since the court seised in that State must have jurisdiction to settle the preliminary question of whether the child has been the subject of wrongful removal or retention within the meaning of Article 3 of that convention. If that court should conclude that that is not the case, that decision cannot bind the court of the State of origin subsequently seised pursuant to Article 11(8) of Regulation No 2201/2003.

157. The Commission concludes from this that the decisions delivered by the court of a requested State are limited to the implementation of the Hague Convention on International Child Abduction and cannot have the slightest effect on the general provisions on jurisdiction laid down by Regulation No 2201/2003.

2.      Assessment

158. As may be observed, the replies to the third question are somewhat varied. In truth, as the Commission noted in its written submissions, the question as formulated by the referring court does not quite correspond to the wording of the double question it raises. Some clarification is therefore necessary in that regard.

a)      Clarification of the third question

159. The referring court asks, in the first place, whether Article 10 of Regulation No 2201/2003 continues to apply after the courts of the requested Member State have rejected a request for return of the child under the Hague Convention on International Child Abduction on the basis that the conditions for the application of Articles 3 and 5 of that convention are not satisfied.

160. It asks, secondly, whether the French court which, on 15 March 2010, dismissed the father’s request for return of the child pursuant to the Hague Convention on International Child Abduction, on the ground that he did not have rights of custody over the child within the meaning of Articles 3 and 5 of that convention, could, on that basis, take jurisdiction to hear the dispute concerning parental responsibility for the child or whether, on the contrary, it should attribute to the High Court of Justice (England and Wales), Family Division, the character of the court first seised in accordance with Article 19(2) of Regulation No 2201/2003.

161. The two questions therefore relate essentially to the application of the rules of lis pendens under Regulation No 2201/2003 in two different situations. In the first, two conflicting decisions from courts in different Member States coexist, one adopted pursuant to Regulation No 2201/2003 and the other adopted pursuant to the Hague Convention on International Child Abduction. In the second situation, two conflicting decisions from courts of different Member States coexist, but both were adopted on the basis of Regulation No 2201/2003.

b)      Conflict between a decision adopted on the basis of Regulation No 2201/2003 and a decision adopted on the basis of the Hague Convention on International Child Abduction

162. The situation referred to in this example (56) is that in which the decisions of English courts which have taken jurisdiction to hear and determine a dispute concerning parental responsibility on the basis of Regulation No 2201/2003, falling within the scope of Articles 10 and 11 thereof, coexist with the French decision dismissing as unfounded the application pursuant to the Hague Convention on International Child Abduction made by the father in the context of the same dispute.

163. Article 11(8) of Regulation No 2201/2003 appears to us to contain the answer to this question. That provision provides the possibility for a court of a Member State which has jurisdiction pursuant to Regulation No 2201/2003 to adopt a decision ordering the return of a child following a judgment of non-return given pursuant to Article 13 of the Hague Convention on International Child Abduction.

c)      Conflict between the decisions adopted on the basis of Regulation No 2201/2003

164. The situation referred to in this example is that where the decisions of the English courts of 12 October 2009 and 15 April 2010 coexist with the decision of the French court of 23 June 2010, all of which ruled on their jurisdiction pursuant to Regulation No 2201/2003 to hear and determine the same dispute concerning parental responsibility, albeit on a different basis.

165. The provisions of Regulation No 2201/2003 concerning lis pendens, namely those of Article 19(2) thereof, are specifically intended to govern that type of situation. It was for the French court to stay proceedings until the jurisdiction of the English court, the first seised, was established. (57)

166. It should be added that the fact that the decision of the French court is based on the prior decision of the same court dismissing as unfounded the application pursuant to the Hague Convention on International Child Abduction made by the father does not in any way alter that statement since the first decision is adopted on the basis of Regulation No 2201/2003.

d)      Conclusion

167. Accordingly, the reply to the third question from the referring court should be as follows: first, Regulation No 2201/2003 must be interpreted as meaning that it does not preclude the option for a court of a Member State with jurisdiction under Article 10 of that regulation to adopt any measure to ensure the return of the child following a judgment of non-return given pursuant to the Hague Convention on International Child Abduction, and, second, Article 19(2) of Regulation No 2201/2003 must be interpreted as meaning that the court of a Member State seised of an action for parental responsibility must, where it is seised after the court of another Member State seised of an action with the same subject-matter and legal basis, stay the proceedings until the jurisdiction of the court first seised has been established. The fact that the jurisdiction of the court first seised is based on Article 10 of Regulation No 2201/2003 and that the jurisdiction of the court second seised is determined on the basis of a judgment of non-return adopted previously pursuant to the Hague Convention on International Child Abduction, on the ground that the conditions of Articles 3 and 5 of that convention are not met, is irrelevant in that regard, since the court second seised has jurisdiction pursuant to that regulation.

VII – Conclusion

168. In the light of the above remarks and bearing in mind the reservations expressed concerning the relevance of the second and third questions, I propose that the Court should reply to the questions referred for a preliminary ruling by the Court of Appeal (England and Wales) (Civil Division) as follows:

(1)      In general, a national court seised of an application concerning parental responsibility in relation to a child must rule explicitly on its jurisdiction pursuant to 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, after having examined in turn the various bases on which that jurisdiction may be established pursuant to that regulation.

In the context of that examination, it is a matter for that court to determine, in the best interests of the child, the habitual residence of that child, assessing all the factual circumstances specific to the situation at issue.

In particular, in circumstances such as those of the main proceedings, which are characterised by the lawfulness of the removal of a child from one Member State where she was habitually resident to another Member State and, by the fact that the court in the Member State in which she was first resident was seised immediately but after the event, that court must, more specifically, endeavour to determine whether that removal effectively, in the short term, entails the loss of the first habitual residence of the child and the acquisition of a new habitual residence in the Member State of arrival.

To that end, the wishes of the person who has parental authority at the start of the lawful removal must be a primary and identifiable consideration, bearing in mind in particular the age of the child and after having given the person concerned the opportunity to submit his or her observations and to explain fully and completely the reasons motivating that removal.

It is the person contesting the acquisition of a new habitual residence in such circumstances who bears the burden of producing evidence to prove that that removal is not motivated by the wish to establish a new habitual residence in the new Member State.

Finally, if it is not possible for that person to establish the habitual residence of the child, the national court must then establish it and, while complying with the principle of proximity, rule on its own jurisdiction on the basis of the provisions of Article 13 or Article 15 of Regulation No 2201/2003.

(2)      Article 2(7), (9) and (11) and Articles 10 and 11 of Regulation No 2201/2003 must be interpreted as meaning that a court of a Member State may be an ‘institution or other body’ within the meaning of those provisions, to which rights of custody may be granted for the purposes of the provisions of that regulation, in so far as the legislation of that Member State provides for the grant of those rights of custody by operation of law.

(3)      Regulation No 2201/2003 must be interpreted as meaning that it does not preclude the option for a court of a Member State with jurisdiction pursuant to Article 10 of that regulation to adopt any measure to ensure the return of the child following a judgment of non-return given pursuant to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

Article 19(2) of Regulation No 2201/2003 must be interpreted as meaning that the court of a Member State seised of an action for parental responsibility must, where it is seised after the court of another Member State seised of an action with the same subject-matter and legal basis, stay the proceedings until the jurisdiction of the court first seised has been established. The fact that the jurisdiction of the court first seised is based on Article 10 of Regulation No 2201/2003 and that the jurisdiction of the court second seised is determined on the basis of a judgment of non‑return adopted previously pursuant to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, on the ground that the conditions of Articles 3 and 5 of that convention are not met, is irrelevant in that regard, since the court second seised has jurisdiction pursuant to that regulation.

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1 – Original language: French.

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2 – OJ 2003 L 338, p. 1.

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3 – Case C-523/07 [2009] ECR I-2805.

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4 – ‘The Charter’.

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5 – UNTS, 1983, vol. 1343, No 22514, p. 89, ‘the Hague Convention on International Child Abduction’.

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6 – Re H (Abduction: Rights of custody) [2000] 1 FLR 374.

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7 – See point 41 of this View.

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8 – See point 38 of this View.

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9 – See points 115 et seq. of this View.

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10 – However, as regards the argument advanced by the father of the child, see point 91 of this View.

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11 – As regards the system of jurisdiction thus established, see points 104 et seq. of this View.

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12 – By thus establishing a precise and uniform substantive rule, just as had been done by Article 11(4) of Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (OJ 2000 L 160, p. 19), Article 16 of Regulation No 2201/2003 contrasts sharply with the interpretation by the Court of Article 21 of the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p. 32), under which the question of the moment when the court of a Member State should be deemed to be seised was governed by the lex fori. See Case 129/83 Zelger [1984] ECR 2397, paragraph 16. On this aspect of the question, see in particular Rey, J., ‘L’office du juge – la saisine’, in Fulchiron, H., and Nourissat, C. (dir.), Le nouveau droit communautaire du divorce et de la responsabilité parentale, Dalloz, Paris, 2005, p. 181.

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13 – OJ 2007 L 324, p. 79. The 15th recital in the preamble to Regulation No 2201/2003 states that that regulation should apply to the service of documents in proceedings instituted pursuant to it.

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14 – Although the national court which has to rule on its jurisdiction must, as previously noted, do so on the date on which it is seised, the assessment of the criteria of habitual residence does not preclude account being taken of elements dating from after it is seised but before the date on which it is finally definitively ruled upon. See, in that regard, Richez Pons, A., La résidence en droit international privé (conflits de juridictions et conflits de lois), (dissertation) Lyon, 2004.

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15 – The question from the referring court is, in reality, more precise in that it refers to Articles 8 and 10 of Regulation No 2201/2003. However, as will be observed in the arguments which follow, the concept of habitual residence is and must be the same, whatever provision of Regulation No 2201/2003 is at issue. Moreover, as will be explained below, there are sound reasons for doubting the relevance of the question as regards Article 10 of Regulation No 2201/2003. Finally, although the question thus posed effectively calls for some explanation of the actual concept of habitual residence within the meaning of Regulation No 2201/2003, the main proceedings raise a more extensive problem than that of the definition of that concept.

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16 – It should also be explained that, in her Opinion in A, cited above, Advocate General Kokott considered at length, which is a great relevance to this case, the interpretation of the concept of habitual residence (points 13 to 52), taking a particular interest in the origin of Regulation No 2201/2003, identical or related terms used in the international conventions (points 22 to 31) or in other areas of Community law (points 32 to 37) and focusing on defining the principal criteria to be taken into account in establishing the habitual residence of a child (points 41 to 52). In those circumstances, it does not appear necessary to reproduce an analysis with which we concur in full.

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17 – Paragraph 31.

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18 – A, cited above, paragraphs 31, 34 and 35.

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19 – Ibid., paragraph 34.

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20 – Ibid., paragraph 36.

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21 – Ibid., paragraph 37.

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22 – A, cited above, paragraph 38.

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23 – Ibid., paragraph 39.

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24 – Ibid., paragraph 40.

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25 – A, cited above, paragraph 42.

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26 – Indeed, it appears from the account of the arguments exchanged before the referring court that, when it made its order of 15 April 2010, the High Court of Justice (England and Wales), Family Division, knew of the existence of A, cited above, and that, in the context of the determination of the habitual residence of the child which it undertook, it took account of the impact of that judgment on English law.

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27 – To use the expression borrowed from Lagarde, P., ‘Rapport explicatif concernant la convention de La Haye du 19 octobre 1996 concernant la compétence, la loi applicable, la reconnaissance, l’exécution et la coopération en matière de responsabilité parentale et de mesures de protection des enfants’ (UNTS, 2004, vol. 2204, No 39130), Actes et documents de la XVIIIème Session de la Conférence de La Haye, 1996, vol. II, Protection des enfants, No 41. There is broad acceptance of this proposition, in both the literature and the case-law. See, in particular, Richez-Pons, A., op. cit., p. 206.

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28 – See Richez-Pons, A., op. cit., p. 206 et seq.

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29 – The Practice Guide for the application of Regulation No 2201/2003 states, in that regard, that Article 9 thereof applies only if the child acquired his habitual residence in the new Member State during that three-month period.

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30 – In the German version, the first sentence of Article 9(1) of Regulation No 2201/2003 reads as follows: ‘Beim rechtmäßigen Umzug eines Kindes von einem Mitgliedstaat in einen anderen, durch den es dort einen neuen gewöhnlichen Aufenthalt erlangt’. Similarly, the Italian version reads: ‘In caso di lecito trasferimento della residenza di un minore da uno Stato membro ad un altro che diventa la sua residenza abituale’.

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31 – Similarly, the versions in Spanish ‘Cuando un menor cambie legalmente de residencia de un Estado miembro a otro y adquiera una nueva residencia habitual en este último’, Danish ‘Når et barn lovligt flytter fra én medlemsstat til en anden og får nyt sædvanligt opholdssted dér’, English ‘Where a child moves lawfully from one Member State to another and acquires a new habitual residence there’, Dutch ‘Wanneer een kind legaal van een lidstaat naar een andere lidstaat verhuist en aldaar een nieuwe gewone verblijfplaats verkrijgt’, Portuguese ‘Quando uma criança se desloca legalmente de um Estado-Membro para outro e passa a ter a sua residência habitual neste último’, Finnish ‘Kun lapsi muuttaa laillisesti jäsenvaltiosta toiseen ja saa siellä uuden asuinpaikan’ and Swedish ‘När ett barn lagligen flyttar från en medlemsstat till en annan och förvärvar nytt hemvist där skall’.

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32 – See, in particular, Case 30/77 Bouchereau [1977] ECR 1999, paragraph 14, and Case C-340/08 M and Others [2010] ECR I-0000, paragraph 44.

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33 – See, in particular, Case 29/69 Stauder [1969] ECR 419, paragraph 3; Joined Cases C-261/08 and C-348/08 Zurita García and Choque Cabrera [2009] ECR I-10143, paragraph 54; and Case C‑569/08 Internetportal und Marketing [2010] ECR I-0000, paragraph 35.

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34 – To that effect, for example, Gallant, E., Compétence reconnaissance et exécution (Matières matrimoniale et de responsabilité parentale), Répertoire de droit communautaire, Dalloz, August 2007, No 167.

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35 – Moreover, Article 10 of Regulation No 2201/2003 provides, in the case of wrongful removal of a child, for the courts of the Member State where the child was habitually resident immediately before the wrongful removal to retain their jurisdiction, only until the child has acquired a habitual residence in another Member State, and on condition that, in particular, the child has resided in that other Member State for a period of at least one year and is settled in his or her new environment.

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36 – Which might, for example, be six months. For a discussion of this temporal factor in the concept of habitual residence, see, in particular, Espinosa Calabuig, R., Custodia y visita de menores en el espacio judicial europeo, Marial Pons, 2007, p. 128 et seq. It will be noted that the committee charged with producing the draft of the Hague Convention of 19 October 1996, referred to above, ‘rejected the idea of quantifying the period of time which would be necessary for the acquisition of a new habitual residence’, precisely because it involves a question of fact which must be assessed on a case-by-case basis. See Lagarde, P., op. cit., No 41.

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37 – Or before which it cannot be accepted that a change of residence equals a change of habitual residence.

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38 – This is, in particular, the solution recommended by the Practice Guide for the application of Regulation No 2201/2003 (p. 13). The mere presence of the child in the new Member State would thus be equated to the acquisition of a new habitual residence, which would contradict the position adopted by the Court in A, cited above, according to which the mere physical presence of a child in a Member State is not sufficient to establish the habitual residence of the child there.

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39 – They may also, in the very last resort, declare themselves to have jurisdiction under Article 14 of Regulation No 2201/2003, which provides that, where no court of a Member State has jurisdiction, either pursuant to Article 8 or pursuant to Article 13 thereof, jurisdiction is to be determined, in each Member State, by the laws of that State.

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40 – On this aspect of the question, see, for example, Niboyet, M.-L., ‘L’office du juge – la vérification et l’exercice de la compétence’, in Fulchiron, H., and Nourissat, C. (dir.), op. cit., p. 191.

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41 – Case C-256/09 Purrucker [2010] ECR I-0000, paragraph 73.

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42 – See point 101 of this View.

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43 – Paragraph 43.

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44 – Re J [1990] 2 AC 562, p. 578.

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45 – On this aspect of the question, see footnote 15.

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46 – On this aspect of the question, see below the proposed reply to the second question from the referring court.

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47 – Case C-400/10 PPU [2010] ECR I-0000, paragraph 44.

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48 – McB., cited above, paragraphs 49 to 64.

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49 – If the court seised by telephone on 9 October 2009 had been seised on the day preceding the departure of the mother with the child, that removal would have been carried out in breach of the rights of custody attributed to the court seised by the Member State in which the child was first habitually resident, if it had not been previously authorised by that court. That removal would therefore have been wrongful and would have formed the basis for the jurisdiction of the court seised pursuant to Article 10 of Regulation No 2201/2003.

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50 – See, in that regard, Perez Vera, E., Rapport explicatif sur la convention de La Haye sur l’enlèvement international d’enfants, Actes et documents de la Quatorzième session (1980), vol. III, Enlèvement d’enfants, No 64 et seq.

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51 – The Hague Convention on International Child Abduction, on which Regulation No 2201/2003 is modelled in that respect, also lays down the rights of custody of institutions and bodies. See Perez Vera, E., op. cit., point 80.

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52 – Paragraph 43.

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53 – The referring court made the order for reference on 8 October 2010, very shortly after judgment was given in McB., cited above, on 5 October 2010, and it was not therefore aware of that judgment.

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54 – See, in particular, A, cited above, paragraph 34.

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55 – See, more unusually, Case C-486/04 Commission v Italy [2006] ECR I-11025, paragraph 44; Case C-255/05 Commission v Italy [2007] ECR I-5767, paragraph 60; and judgment of 6 November 2008 in Case C-247/06 Commission v Germany, not published in the ECR, paragraph 30.

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56 – That is to say the situation which corresponds to the first paragraph of the third question from the referring court.

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57 – Subject to the remarks made above, in points 55 et seq. of this View.