How should EU Member States' courts determine habitual residence?
The ECJ has adopted a fact-based test in C-523/07. A mother of three children lived with the children’s stepfather in Finland. The family then moved to Sweden in 2001 until they traveled in Finland during the summer of 2005, intending to spend their holiday in Finland, staying in a camper van and with relatives. The family was still in Finland in October 2005, when they applied for public housing. In November, a local welfare agency legally removed the children to a childcare unit because the agency determined that the children were abandoned. The mother and stepfather opposed the agency’s action in court but failed. On appeal, the Finnish appellate court submitted four questions to the ECJ.
The question related to habitual residence asked for clarity on how to determine habitual residence when children with a permanent residence in one Member State carry out a peripatetic lifestyle in another Member State.
The Advocate General’s opinion framed the issue in the need for a more precise definition of habitual residence than plain meaning of the words. The words needed a more specific definition in light of the spirit and purpose of the legislation and the best interests of the child.
Distinguishing between presence and habitual residence, the AG turned to private international law because of its importance in interpreting and providing uniform interpretation on this issue. The 1996 Hague Child Protection Convention and, to a lesser extent, the 1961 Protection of Minors Convention, the 1980 European Custody Convention, and the 1980 Hague Abduction Convention, while ultimately reminding the ECJ that the Regulation takes precedence over all four conventions on matters that fall under its jurisdiction. The AG cited Rinau’s holding that the Regulation followed the Hague Abduction Convention and its guiding principles.
Thus, the AG considered habitual residence “by reference to all the relevant circumstances, and is to be distinguished from the legalistic concept of domicile.”
This definition, however, differed slightly from that suggested by the Commission that, relying on the Borras Report, specified factors including intention, relevant facts, and actual residence. The AG framed the element of intent as appropriate in the context of divorce, which Brussels II addressed, but not in determining a child’s habitual residence because children often have no intention and parents in custody disputes may have different intentions. Thus, the AG rejected the Commission’s definition. Similarly, the AG rejected an application of the test for habitual residence under social laws because of those laws differing aims.
In applying the fact-based test based on the “actual centre of the interests of the child,” the AG then examined the facts as they were at the time the court was seised with, in this case, particular attention to the “duration and regularity of residence” and the “child’s familial and social integration.”First dealing with duration and regularity of residence, the AG laid out the factors surrounding duration of the residence. Again, the AG began by emphasizing that such determination depends on the facts of each individual case and no prescribed time limit exists. For the case at hand, the AG considered the children’s ages and their familial and social circumstances. While habitual residence tolerates interruptions, children lose their previous habitual residence when “a return to the original place of residence is not foreseeable,” and habitual residence can shift quickly, as evidenced by the three-month period in Regulation Article 8. Parent’s common intentions do play a role when manifested by enrolling the child in school, leasing or purchasing property, or officially changing an address.
Second, the AG examined factors surrounding the child’s familial and social integration. These factors can vary with the child’s age, but contact with relatives, “school, friends, leisure activities and, above all, command of language are important.” Considering these factors, courts must determine whether a habitual residence exists. If so, that court cannot take jurisdiction under Article 13’s residual jurisdiction.After considering the AG’s opinion, the ECJ had to ultimately rule on the facts of the case. The ECJ largely adopted the AG’s opinion regarding the need for uniform and autonomous interpretations, the unique definition of habitual residence in family law, and the factors to consider in determining habitual residence. With those factors in place, the ECJ returned the case to the national courts for determination.