Court of Justice of the European Communities (including Court of First Instance Decisions)

VIEW OF ADVOCATE GENERAL

MACIEJ SZPUNAR

delivered on 24 September 2014 (1)

Case C-376/14 PPU

C.

v

M.

(Request for a preliminary ruling from the Supreme Court (Ireland))

(Urgent preliminary ruling procedure - Area of freedom, security and justice - Judicial cooperation in civil matters - Regulation (EC) No 2201/2003 - Hague Convention of 25 October 1980 on the civil aspects of international child abduction - Concept of ‘habitual residence’ of a child following the divorce of its parents - Lawful removal of the child to another Member State - Wrongful retention)

I -    Introduction

1.      A Franco-British couple have been divorced. They have a small child. The mother, on the basis of a French court judgment, takes the child with her from France to Ireland. Seven months later this judgment is overturned by a French court of appeal, and it is ordered that the child stay with the father. The mother does not return the child.

2.      Where is and where was the child’s habitual residence? Has there been an abduction in the form of a wrongful retention? These are the questions the Supreme Court (Ireland) is faced with in the context of this request for a preliminary ruling.

3.      It is well known that in the EU legal order jurisdiction in the domain of matters of parental responsibility is governed by Council Regulation (EC) No 2201/2003, (2) also known as the ‘Brussels IIA Regulation (and also as Brussels II bis)’. It is equally well known that the Convention of 25 October 1980 on the civil aspects of international child abduction, adopted under the auspices of the Hague Conference on Private International Law (3) (hereafter: ‘1980 Hague Convention’) provides for a procedure for the return of a child.

4.      The EU legislator’s answer to how the relationship of these two legal instruments is to be calibrated is found in Article 11 of Regulation No 2201/2003. The present case, which lies on the demarcation line between the 1980 Hague Convention and Regulation No 2201/2003, concerns the interpretation of that provision and the way in which Regulation No 2201/2003 and the 1980 Hague Convention relate to each other.

II - Legal context

A -    The 1980 Hague Convention

5.      Article 1 of the 1980 Hague Convention provides:

‘The objects of the present Convention are -

a)      to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

…’

6.      According to Article 3 of that Convention:

‘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 sub-paragraph 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.’

7.      Article 12 of the 1980 Hague Convention is worded as follows:

‘Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.’

8.      Article 13 of that Convention provides:

‘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.’

9.      Article 16 of the 1980 Hague Convention is worded as follows:

‘After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.’

10.    Article 19 of the 1980 Hague Convention states:

‘A decision under [the 1980 Hague] Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.’

B -    European Union law

11.    Recital 17 in the preamble to Regulation No 2201/2003 is worded as follows:

‘In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.’

12.    Article 2 of that Regulation, entitled ‘Definitions’ provides:

‘For the purposes of this Regulation:

…

7.      the term “parental responsibility” shall mean 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. The term shall include rights of custody and rights of access;

8.      the term “holder of parental responsibility” shall mean any person having parental responsibility over a child;

9.      the term “rights of custody” shall include 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;

10.      the term “rights of access” shall include in particular the right to take a child to a place other than his or her habitual residence for a limited period of time;

11.      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.’

13.    Chapter II of Regulation No 2201/2003 on ‘Jurisdiction’ contains Section 2 on ‘Parental responsibility’ (Articles 8 to 15).

14.    Article 8 of Regulation No 2201/2003 is termed ‘General jurisdiction’ and worded 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.’

15.    Article 9 on ‘Continuing jurisdiction of the child’s former habitual residence’ stipulates:

‘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.’

16.    Article 10 deals with ‘Jurisdiction in cases of child abduction’. It reads:

‘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.’

17.    Article 11, entitled ‘Return of the child’, provides:

‘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 (hereinafter “the 1980 Hague Convention”), 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.’

18.    Article 12 deals with ‘Prorogation of jurisdiction’ and reads:

‘1.      The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where:

(a)      at least one of the spouses has parental responsibility in relation to the child;

and

(b)      the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised, and is in the superior interests of the child.

2.      The jurisdiction conferred in paragraph 1 shall cease as soon as:

(a)      the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final;

(b)      in those cases where proceedings in relation to parental responsibility are still pending on the date referred to in (a), a judgment in these proceedings has become final;

(c)      the proceedings referred to in (a) and (b) have come to an end for another reason.

3.      The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where:

(a)      the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State;

and

(b)      the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.

4.      Where the child has his or her habitual residence in the territory of a third State which is not a contracting party to the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, jurisdiction under this Article shall be deemed to be in the child’s interest, in particular if it is found impossible to hold proceedings in the third State in question.’

19.    According to Article 16, which bears the title ‘Seising of a Court’:

‘1.      A court shall be deemed to be seised:

(a)      at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent;

or

(b)      if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.’

20.    Article 19 on ‘Lis pendens and dependent actions’ is worded as follows:

‘1.      Where proceedings relating to divorce, legal separation or marriage annulment between the same parties 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.

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.’

C -    Irish law

21.    The Child Abduction and Enforcement of Custody Orders Act, (4) 1991, gives effect to the 1980 Hague Convention in Irish law. This act was amended by the European Communities (Judgments in Matrimonial Matters and Matters of Parental Responsibility) Regulations, 2005 (S.I. 112 of 2005), (5) in order to take account of Regulation No 2201/2003, in 1980 Hague Convention cases arising between Member States of the European Union.

III - Facts and procedure

22.    The case before the referring court involves a dispute as to the wrongful retention of a child H., a French national, born in France on 14 July 2008, to then married parents C., the father, a French national, and M., the mother, who is British, born in England of Irish parents.

23.    The parents’ marriage deteriorated soon after the birth of the child. On 17 November 2008, the mother submitted a petition for divorce in France. Since then, the parents have engaged in a litigation marathon over parental rights in relation to the child. (6)

24.    On 2 April 2012, the Family Court of Angoulême pronounced the divorce of the parties, ordering that it be effective from 7 April 2009. By that judgment, the court also ordered that both parents should have joint parental authority, but that the child’s habitual residence should be with the mother. The transfer of residence was to be progressive and to take full effect as from 7 July 2012. (7) That court permitted the mother to set up residence in Ireland with the child. It organised the access rights for the father, taking into account the eventuality of the departure of the mother to Ireland (once per month).

25.    On 23 April 2012, the father lodged an appeal against this ruling on parental responsibility. He applied for a stay on the immediate enforceability of that part of the ruling authorising the mother to go to Ireland.

26.    On 5 July 2012, the First President of the Court of Appeal of Bordeaux refused the application for a stay on immediate enforceability.

27.    On 12 July 2012, the mother and the child moved to Ireland and have remained there ever since. According to the information submitted by the referring court, the mother has not complied with the order of 2 April 2012, directing her to allow access to the father.

28.    On 5 March 2013, the Court of Appeal of Bordeaux, ruling on the appeal against the decision of 2 April 2012, ordered the joint exercise of parental authority, and that the child should reside with the father with specified access and accommodation rights for the mother.

29.    On 29 May 2013, the father, by special summons, sought before the Irish courts the return of the child to her habitual residence in France pursuant to Article 12 of the 1980 Hague Convention for the purposes of enforcing the custody orders of the courts of France, and his own rights of custody and access and a declaration that the mother had wrongfully retained the child in Ireland.

30.    On 2 July 2013, at a hearing before the Family Court in Niort, the father sought an order transferring parental authority to him exclusively, and prohibiting the child’s removal from France. The mother raised procedural objections, relating to the proceedings before the Irish Courts, initiated on 29 May 2013.

31.    On 10 July 2013, the Family Court in Niort delivered its judgment and rejected the procedural objections raised by the mother, considering that the matter before the Irish courts did not concern the substance of custody and that there was no risk of conflicts between the courts because the Irish court ‘would not appear to have competence to judge on the return or not of a child of whom the usual residence, therefore the substance of the case, has been fixed by appeal to France, by a very recent decision’. The Family Court in Niort granted the father exclusive parental authority, ordered the child’s return to her father’s home in France and prohibited the child’s removal from France without his consent. The child has not since been returned to France.

32.    On 13 August 2013, the High Court of Ireland refused the order sought pursuant to Article 12 of the 1980 Hague Convention for the return of the child to France and refused an application for a declaration that the mother had wrongfully retained the child in Ireland (Article 3 of the 1980 Hague Convention). (8) It held that the evidence had established that the child has been habitually resident in Ireland since or about July 2012, when she and her mother moved to Ireland. The judge held that this was a lawful move, based on the order of the Family Court of Angoulême of 2 April 2012.

33.    On 10 October 2013, the father appealed against the decision of the High Court. Before the Supreme Court, the father alleged in particular that a lawful removal may become a wrongful retention, that the Irish courts are bound by the orders of the French courts, first seised and having custody of the child, and that the French Family Court in Niort reaffirmed in particular in the order of 10 July 2013 that it was the only court with jurisdiction under Regulation No 2201/2003 and that the habitual residence of the child was in France.

34.    The mother contends in particular that, on the foot of the order of the Angoulême Court of 2 April 2012, she was entitled to decide on the child’s habitual residence, without the consent of the father, and that the child’s habitual residence changed after the removal to Ireland so that the child was habitually resident in Ireland prior to March 2013 and the continued retention of the child in Ireland was not wrongful.

35.    In the context of the matter relating to the return procedure before it, the Supreme Court has referred three questions on the interpretation of Regulation No 2201/2003 to the Court (see point 39 below).

36.    On 18 December 2013, the father applied to the Master of the High Court of Ireland, pursuant to Article 28 of Regulation No 2201/2003 for enforcement of the order of 5 March 2013 by the Court of Appeal of Bordeaux. The application was successful and the order was served on the mother on 20 December 2013.

37.    The mother in turn applied for a stay on the enforcement proceedings. The application was listed on 9 May 2014 before the High Court in Ireland. The outcome of that procedure is unknown at present.

38.    On 7 January 2014, an appeal (pourvoi en cassation) was initiated before the Cour de Cassation in France by the mother against the decision of the Court of Appeal of Bordeaux of 5 March 2013. A hearing was scheduled on 25 June 2014. The outcome of that procedure is equally unknown at present.

IV - Questions referred to the Court

39.    By order of 31 July 2014, received at the Court on 7 August 2014, the Supreme Court referred the following questions for a preliminary ruling:

‘(1)      Does the existence of the French proceedings relating to the custody of the child preclude, in the circumstances of this case, the establishment of habitual residence of the child in Ireland?

(2)      Does either the father or the French courts continue to maintain custody rights in relation to the child so as to render wrongful the retention of the child in Ireland?

(3)      Are the Irish courts entitled to consider the question of habitual residence of the child in the circumstances where she has resided in Ireland since July 2012, at which time her removal to Ireland was not in breach of French law?’

V -    Urgent procedure

40.    By the same order of 31 July 2014, the referring court requested that this reference for a preliminary ruling be dealt with under the urgent procedure provided for in Article 107 of the Court’s Rules of Procedure. The reason stated by the referring court is that it is recognised in recital 17 to Regulation No 2201/2003 that, in case of wrongful removal or retention of a child, the return of the child should be obtained without delay.

41.    The Third Chamber of the Court decided, on 14 August 2014, on the proposal of the Judge-Rapporteur and after hearing the Advocate General, to grant the referring court’s request that the reference for a preliminary ruling be dealt with under the urgent procedure. The applicant and respondent in the main proceedings and the European Commission submitted written observations. The same parties, together with the French Republic took part in the hearing on 22 September 2014.

VI - Assessment

A -    Preliminary remarks

42.    The referring court, in its order for a preliminary ruling, makes reference to multiple provisions of Regulation No 2201/2003. It specifically seeks an interpretation of Articles 2, 12, 19 and 24 of Regulation No 2201/2003 and, in addition, appears to base its reasoning on Articles 8, 9, 10, 13, 16, 17 and 23 thereof. Moreover, it appears from the order for a preliminary ruling that the referring court assumes that Article 19(2) of Regulation No 2201/2003 on lis pendens applies.

43.    Against this background, a few issues should be clarified before I proceed to propose answers to the three questions referred.

1.      Admissibility of questions

44.    At the outset, it should be noted that the referring court is seised in the context of an application for return under the 1980 Hague convention, as mentioned in Article 11 of Regulation No 2201/2003.

45.    This calls for a brief clarification of the legal relationship between the 1980 Hague Convention and Article 11 of Regulation No 2201/2003, a relationship which should be seen in its historical perspective.

46.    Initially, both the Brussels II Convention (9) and the Brussels II Regulation, (10) the precursor to Regulation No 2201/2003, sought to keep apart the 1980 Hague Convention and Community rules on jurisdiction and recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility. Thus, Article 4 of the Brussels II Regulation merely contained a reference to the 1980 Hague Convention. (11) Besides this reference, there was no other interaction with the 1980 Hague Convention. In the legislative process leading to the adoption of Regulation No 2201/2003, the Commission in a draft Chapter III initially proposed an intra-Community system for a return procedure. (12) Even though this system was not to replace the 1980 Hague Convention entirely, (13) it would essentially have ‘communitarised’ the return procedure. The proposal was not accepted and, instead, a compromise was chosen: the return procedure continues to be based on the 1980 Hague Convention, but is complemented by Article 11 of Regulation No 2201/2003. (14)

47.    According to Article 11(1) of Regulation No 2201/2003, where a person having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the 1980 Hague convention, 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 of that Article 11 apply.

48.    It is immediately apparent from the wording of Article 11(1) of Regulation No 2201/2003 that this provision does not directly determine which court has jurisdiction to examine the question of the child’s return. (15) On the contrary, it refers to ‘the competent authorities (16) in a Member State [to whom an application is to be made] to deliver a judgment on the basis of the 1980 Hague convention’. Article 11(1) does not, therefore, per se constitute a legal basis for issuing a return order. (17) Such a legal basis stems from other provisions of national or international law.

49.    It follows that a procedure pursuant to the 1980 Hague Convention must take place in order for Article 11 of Regulation No 2201/2003 to apply. This procedure is essentially laid down in Articles 12 and 13, in combination with Article 3, of the 1980 Hague Convention. In essence, the national judge has to ascertain whether there has been a wrongful removal or retention of the child from its place of habitual residence.

50.    Article 11 of Regulation No 2201/2003 then complements (18) the return procedure of the 1980 Hague Convention in the following way: paragraphs 2 and 5 require the child to be heard in the procedure, paragraph 3 obliges courts seised to act expeditiously and paragraph 4 underlines that once adequate arrangements have been made to secure the protection of the child after return, such a return cannot be refused on the basis of Article 13b of the 1980 Hague Convention. However, the main function of Article 11 of Regulation No 2201/2003 is to be found in paragraph 6 et seq. In the event that a court issues an order on non-return pursuant to Article 13 of the 1980 Hague Convention, then the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention have the last word as to the return. (19) Such an enhancement of the procedure of the 1980 Hague Convention is ultimately explained by a higher degree of cooperation and trust between the Member States of the European Union. (20)

51.    Obviously, insofar as Article 11 of Regulation No 2201/2003 overlaps with the 1980 Hague Convention, Article 11 takes precedence, (21) while the convention continues to have effect in relation to matters not covered by the Regulation. (22)

52.    The fact that it is primarily the 1980 Hague Convention that determines the procedure of the present case raises the question whether the questions submitted to the Court are at all admissible, in other words whether the Court has jurisdiction to interpret the 1980 Hague Convention, as mentioned in Article 11(1) of Regulation No 2201/2003. (23)

53.    In this context, it should be noted that while the Union is a member to the Hague Conference on Private International Law, (24) but not a party to the 1980 Hague Convention, all the Union’s Member States are parties to that Convention. (25)

54.    Regulation No 2201/2003 in a number of instances contains wording similar to that of the Convention. In the present case, this is true in particular of the legal definitions in Article 2 of Regulation No 2201/2003 on the one hand and the terms used in Articles 3 and 12 of the 1980 Hague Convention on the other. Moreover, Article 11 of Regulation No 2201/2003 by referring to the 1980 Hague Convention reproduces some of its terminology.

55.    In such a situation, an interpretation by the Court, even in the context of the 1980 Hague Convention, is surely helpful in order to secure a parallel and coherent application with the regulation, to ensure a uniform application of Regulation No 2201/2003 and to contribute to a coherent interpretation of the 1980 Hague Convention as far as the Union’s 28 Member States are concerned. (26)

56.    The Court tends to take a liberal approach when it comes to interpreting the return procedure under the 1980 Hague Convention and Article 11 of Regulation No 2201/2003. In McB., (27) in which Irish law required a national court to interpret the 1980 Hague Convention in the same way as Regulation No 2201/2003, the Court considered a question on the 1980 Hague Convention to be admissible. (28) In the same judgment, the Court also found that, since abductions of children from one Member State to another were now subject to a body of rules consisting of the provisions of the 1980 Hague Convention as complemented by those of Regulation No 2201/2003, though the latter takes precedence on matters within the scope of that regulation, it was not obvious that the interpretation sought by the referring court was of no relevance to the decision that that court was called upon to make. (29)

57.    In conclusion, there appear to me to be valid reasons for replying to the questions at issue in order to guide the referring court in its decision on how to decide on the application for return of the child.

2.      No situation of lis pendens

58.    In the context of Article 19(2) of Regulation No 2201/2003, there is a situation of lis pendens where proceedings concerning parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States. The objective of this provision is to prevent decisions which are incompatible. (30)

59.    This is not true of the case at issue. All procedures before the French courts have as their subject-matter the question of parental responsibility, and more precisely the determination of the rights of custody and access in relation to the child. By contrast, there is no procedure before the Irish courts on substance in matters of parental responsibility. There are two sets of proceedings before the Irish courts. First, the proceedings of the present case where the father applied to the Irish courts, seeking the return of the child to France, (31) pursuant to Article 12 of the 1980 Hague Convention, in combination with Article 11(1) of Regulation No 2201/2003. Secondly, a procedure for enforcement of the order of the Court of Appeal of Bordeaux of 5 March 2013, pursuant to Article 28 of Regulation No 2201/2003.

60.    Given that the proceedings in Ireland in the present case have a subject-matter distinct from the one of the proceedings in France, there is no situation of lis pendens. It is therefore immaterial whether the French courts were still ‘seised of the matter’. (32)

3.      No jurisdiction to cede

61.    It is furthermore apparent from the order for reference that the referring court seeks a reply from the Court in order to ascertain whether it is ‘necessary for the Irish courts to cede jurisdiction (33) to the French courts pursuant to Regulation No 2201/2003’. In this context, the referring court also states that ‘the Irish courts will, applying the Regulation, save in most exceptional circumstances cede jurisdiction to the court first seised which retains jurisdiction. (Article 19(3) of the Regulation)’.

62.    Given that, as explained above, in the present matter the Irish courts are not seised to rule on the substance of parental responsibility but are only seised with an application for return of the child, the issue of ceding jurisdiction does not arise. A decision on the merits of the case can only take place once it has been decided that the child is not to be returned under the 1980 Hague Convention and Article 11 of Regulation No 2201/2003. (34)

4.      Provisions without relevance for the present proceedings

63.    From the above considerations, it therefore emerges that what the referring court needs to know in reality is how to apply the 1980 Hague Convention and Article 11 of Regulation No 2201/2003 while drawing on the legal definitions in Article 2 of Regulation No 2201/2003. It does not need to apply to the case before it, and therefore does not need any interpretation of, Articles 8, 9, 10, 12, 23 and 24 of Regulation No 2201/2003, as I shall attempt briefly to outline in the lines that follow.

64.    Article 8 is the general rule on jurisdiction on matters relating to parental responsibility. It stipulates that the courts of a Member State have jurisdiction in matters of parental authority over a child who is habitually resident in that Member State at the time the court is seised. Given that the case at issue is not one related to the substance of parental responsibility, Article 8 can be excluded outright.

65.    By way of exception to Article 8, Article 9 provides that 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 residence 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. Such access rights are defined in Article 2(10) of Regulation No 2201/2003 as including, in particular the right to take a child to a place other than his or her habitual residence for a limited period of time.

66.    Clearly, the present case is not about access rights but about something wholly different: (35) the father seeks neither to take the child to a place other than her habitual residence, (36) nor to do so for a limited period of time. The father wishes to obtain custody of the child on a permanent basis via an application for a return order pursuant to the 1980 Hague Convention.

67.    In the same vein, Article 10 of Regulation No 2201/2003 cannot apply to the case at issue. By virtue of that provision, 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 retain jurisdiction until the child has acquired a habitual residence in another Member State if a number of further conditions are satisfied. Again, this provision deals with the substance of parental responsibility and not, as here, with a return order.

68.    The same reasoning applies to the non-application of Article 12 on prorogation of jurisdiction to the case at issue. (37)

69.    Articles 23 (38) and 24 (39) of Regulation No 2201/2003 are not of interest in the present case, given that they relate to the recognition of judgments, which is not the issue here.

B -    First question

70.    By the first question, the referring court essentially seeks an interpretation of the terms ‘habitually resident’ in Article 3 of the 1980 Hague Convention and Article 11(1) of Regulation No 2201/2003. It appears to have doubts as to whether there was any possibility of the child acquiring a habitual residence outside France, in view of the proceedings on custody rights in France.

71.    In order to decide on the application for return on the basis of the 1980 Hague Convention as mentioned in Article 11(1) of Regulation No 2201/2003, only the habitual residence of the child immediately before the alleged wrongful retention or removal is relevant. (40)

72.    In this context it should be stressed that, contrary to Articles 8, 9, 10 and 12, for the purposes of Article 11(1) of Regulation No 2201/2003, the concept of habitual residence is not a connecting factor for determining jurisdiction, given that, as explained above, this article is not about conferring jurisdiction but about triggering the application of the return procedure.

73.    That said, the Court’s case-law on habitual residence in the context of Articles 8 and 10 of Regulation No 2201/2003 can serve as a guide for the question at issue. I may be brief here, since the referring court appears well acquainted with the relevant case-law of the Court of Justice, and develops the concept of habitual residence by referring to the two cases of A (41) and Mercredi. (42)

74.    There is no definition of habitual residence in Regulation No 2201/2003. It merely follows from the use of the adjective ‘habitual’ that the residence must have a certain permanence or regularity. (43) As the Court has stressed, (44) habitual residence is linked to the best interests of the child and in particular the criterion of proximity. (45)

75.    In determining habitual residence, the Court resorts to elements of fact.

76.    It is established case-law that the concept of ‘habitual residence’ corresponds to the place that reflects some degree of integration of the child in a social and family environment. To that end, in particular 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 must be taken into consideration. (46) Moreover, habitual residence must have a certain duration which reflects an adequate degree of permanence. (47) The child’s age must be taken into account as well as the fact that, as a general rule, the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of. (48)

77.    Crucially, it is for the national courts to establish the habitual residence of the child, taking account of all the circumstances of fact specific to each individual case. (49)

78.    It is therefore apparent from the case-law cited that habitual residence is to be understood as a factual concept. This interpretation is supported by the Explanatory Report to the 1980 Hague Convention, which is adamant in this respect. In the terms of this report ‘the notion of habitual residence [is] a well-established concept in the Hague Conference which regards it as a question of pure fact, differing in that respect from domicile’. (50)

79.    Moreover, academic legal writing on the 1980 Hague Convention also looks at habitual residence as a factual concept. (51) The same is true of academic legal writing on Regulation No 2201/2003 and its precursors (52) or on private international law in general. (53) What is crucial is where the child as a matter of fact has the centre of its life. (54)

80.    Given that the habitual residence is a factual concept, it follows that it is independent of any question of whether or not it is lawfully established. Otherwise Article 10 of Regulation No 2201/2203 would be devoid of purpose, as this provision allows for habitual residence to be acquired, notwithstanding that a removal is wrongful. In other words, the acquisition of habitual residence has nothing to do with the lawfulness of a move. Habitual residence can, in principle, be acquired as a result of an unlawful move.

81.    It should furthermore be made clear that even if the Family Court of Angoulême employed the terms ‘habitual residence’ of the child in order to rule that the child is to stay at the domicile of the mother, this has no bearing on the question whether in fact the child has acquired habitual residence in Ireland within the meaning of the provisions of the 1980 Hague Convention and Regulation No 2201/2003.

82.    The referring court, in the order for reference, appears to have some sympathy for an interpretation which makes habitual residence conditional on the absence of judicial proceedings, in the sense that the ongoing proceedings in France in relation to custody rights prevent the place of habitual residence of the child changing from France to Ireland. (55)

83.    In my opinion, there is no reason to depart from the overwhelmingly accepted classification of habitual residence as a factual concept. There is no need to overlay this concept with legal constructs. Legal certainty calls for a concept that can easily be applied. If it were accepted that the habitual residence of a child cannot change because of the existence of pending proceedings, this would effectively lead to the acquisition of habitual residence being impeded for an uncertain period of time. It would also mean that in cases such as the present the mere existence of an appeal would outweigh all the other matters of fact referred to above. This cannot have been the intention of the drafters of the 1980 Hague Convention or the legislature in Regulation No 2201/2003.

84.    Habitual residence should therefore continue to be interpreted as a factual concept. A (national) court should be in a position to determine expeditiously, on the basis of evidence as to the facts presented to it, where a child is habitually resident. With the criteria mentioned above this should be a manageable exercise. A national court cannot be expected to explore the litigation history of two parties in another country, merely to establish the habitual residence of their child.

85.    I therefore propose that the Court should reply to question 1 that in a case such as that in the main proceedings where a child has been moved from one Member State to another with a parent who, at that time, had rights of custody in relation to the child and was permitted by a court of the Member State of origin to move to the other Member State, the child can in principle acquire habitual residence in the other Member State. The fact that proceedings relating to the child’s custody are still pending in the Member State of origin does not alter this finding, as habitual residence is a factual concept and is not dependent on whether or not there are legal proceedings.

C -    Second question

86.    By the second question, the referring court would like to know whether the father or the French courts (56) continue to maintain custody rights in relation to the child so as to render wrongful the retention of the child in Ireland. This means that, in essence, the referring court needs an interpretation of the Hague Convention as mentioned in Article 11(1) of Regulation No 2201/2003 in order to establish whether or not the child’s presence in Ireland constitutes a wrongful retention on the part of the mother.

87.    It should be recalled that the mother left with the child for Ireland on 12 July 2012 and has stayed there ever since. This move was taken on the basis of the judgment of the Angoulême court of 2 April 2012. On 5 March 2013, the Court of Appeal of Bordeaux ordered that the child should be brought back to France.

88.    The move on 12 July 2012 was lawful. At that moment, the mother was not in breach of any custody rights. (57)

89.    The referring court alludes to the possibility of a wrongful retention ‘as and from the first breach of the access orders fixed by the Family Court in Angoulême on 2^nd June 2012’. (58) This is based on the assumption ‘that the French courts themselves assert they continued to have “parental responsibility” for the child despite her presence in Ireland’. (59)

90.    Such reasoning cannot be maintained.

91.    Both the 1980 Hague Convention and Regulation No 2201/2003 refer to a breach of custody and not of access rights. Insofar as the 1980 Hague Convention is concerned, this wording clearly reflects the will of the drafters of the convention. (60)

92.    It is therefore inconceivable that the mother wrongfully removed or retained the child on 12 July 2012 or in the months that immediately followed. (61)

93.    But what about the period after 5 March 2013?

94.    In this respect the father contends that the child has been wrongfully retained in Ireland as from the order of the Court of Appeal of Bordeaux. (62) In other words, the question is whether in the present case a lawful removal turned into a wrongful retention.

95.    I have some doubts whether it was in the intention of the contracting parties to the 1980 Hague Convention to bring such a situation within the ambit of wrongful retention. According to the Explanatory Report to the 1980 Hague Convention, the situations envisaged by this convention are those which derive from the use of force to establish artificial jurisdictional links on an international level, with a view to obtaining custody of a child. (63) According to the Explanatory Report, what matters is that the child is taken out of the family and social environment in which its life has developed. (64) Such a situation cannot be identified here. At the moment of the judgment of the Bordeaux Court of Appeal, the child had already been present in Ireland for more than seven months. She was not, therefore, suddenly taken out of her family and social environment, at that moment.

96.    I do not, therefore, see how in the circumstances of the present case a lawful removal could have turned into a wrongful retention. (65)

97.    The reasoning at this point is very much in line with that on the question of habitual residence above.

98.    Such a finding is, in my opinion, in line with the rationale of the 1980 Hague Convention and Regulation No 2201/2003. We are only examining whether the criteria for a return order on the basis of the 1980 Hague Convention as mentioned in Article 11 of Regulation No 2201/2003 are fulfilled.

99.    This question is distinct from that of recognition and enforcement of decisions made by the French courts on custody rights. The regulation provides for a procedure of recognition and enforcement in this respect, pursuant to Chapter III of the regulation.

100. It follows that the reply to the second question should be that in a case such as that in the main proceedings where a child has been moved from one Member State to another with a parent who, at that time, had rights of custody in relation to the child and was permitted by a court of the Member State of origin to move to the other Member State, a change in custody rights through an appeal judgment in the Member State of origin does not render a retention wrongful.

D -    Third question

101. By the third question, the referring court wishes to know whether it is entitled to consider the question of habitual residence.

102. The answer to this question is ‘yes’.

103. I should like to repeat and stress, however, that it is for the Irish courts to determine the habitual residence of the child merely for the purposes of the 1980 Hague Convention, as mentioned in Article 11 of Regulation No 2201/2003, i.e. merely for determining whether there has been a wrongful retention.

104. The question of jurisdiction in custody matters is distinct and is to be determined on the basis of Articles 8, 10 and 12 of Regulation No 2201/2003, which are not at issue in the present proceedings.

105. I therefore propose as the answer to the third question that a court of a Member State to which an application for a return order is made under the 1980 Hague Convention, as mentioned in Article 11(1) of Regulation No 2201/2003, is entitled to consider the question of the habitual residence of the child immediately before the alleged wrongful removal or retention.

VII - Conclusion

106. In the light of all of the foregoing considerations, I propose that the Court answer the questions referred by the Supreme Court (Ireland) as follows:

1)         For the purposes of a decision on an application for a return order under the Hague Convention of 25 October 1980 on the civil aspects of international child abduction, as mentioned in Article 11(1) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, in a case such as that in the main proceedings where a child has been moved from one Member State to another with a parent who, at that time, had rights of custody in relation to the child and was permitted by a court of the Member State of origin to move to the other Member State, the child can in principle acquire habitual residence in the other Member State. The fact that proceedings relating to the child’s custody are still pending in the Member State of origin does not alter this finding, as habitual residence is a factual concept and is not dependent on whether or not there are legal proceedings.

2)         For the purposes of a decision on an application for a return order under the Hague Convention, as mentioned in Article 11(1) of Regulation No 2201/2003, in a case such as that in the main proceedings where a child has been moved from one Member State to another with a parent who, at that time, had rights of custody in relation to the child and was permitted by a court of the Member State of origin to move to the other Member State, a change in custody rights through an appeal judgment in the Member State of origin does not render a retention wrongful.

3)         A court of a Member State to which an application for a return order is made under the Hague Convention, as mentioned in Article 11(1) of Regulation No 2201/2003, is entitled to consider the question of the habitual residence of the child immediately before the alleged wrongful removal or retention.

1 - Original language: English.

2 - Regulation 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 (OJ 2003 L 338, p. 1).

3 - Available at: http://www.hcch.net/upload/conventions/txt28en.pdf.

4 - Available at: http://www.irishstatutebook.ie/1991/en/act/pub/0006/.

5 - Available at: http://www.irishstatutebook.ie/2005/en/si/0112.html.

6 - Insofar as litigation took place before the divorce, it will not be reproduced here, as it is of no relevance to the case at issue.

7 - The relevant terms of the judgment read as follows: ‘Fixe la résidence habituelle de l’enfant au domicile de la mère à compter du 7 juillet 2012’.

8 - It is stated in the order for a preliminary reference that the High Court of Ireland ruled both on an application for a return order and on an application for a (so-called) ‘declaration’ of wrongful retention. Should this application for a ‘declaration’ constitute, as the referring court seems to assume, an application for ‘decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention’ referred to in Article 15 of the 1980 Hague Convention, then this would strike me as odd. An order for return on the basis of Article 12 of the 1980 Hague Convention and a ‘decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention’ referred to in Article 15 of the 1980 Hague Convention are two completely different matters. In my reading of the 1980 Hague Convention, one cannot apply for both within the same jurisdiction. Indeed, the ‘decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention’ is to be obtained from an authority within a jurisdiction which has not been seised in the context of a return order under Article 12 of the 1980 Hague Convention.

9 - See Council Act of 28 May 1998 drawing up, on basis of Article K.3 of the Treaty on European Union, the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters, OJ 1998 C 221, p. 1. This convention never entered into force, as it was superseded by the ‘Brussels II’ Regulation, following the ‘communitarisation’ of judicial cooperation in civil matters through the move of the relevant chapter from the former third pillar to the first pillar (part III, title IV, EC Treaty) with the entry into force of the Treaty of Amsterdam on 1 May 1999.

10 - 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.

11 -      The Article was entitled ‘Child abduction’ and read as follows: ‘The courts with jurisdiction within the meaning of Article 3 shall exercise their jurisdiction in conformity with the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, and in particular Articles 3 and 16 thereof’.

12 - See Proposal for a Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility repealing Regulation (EC) No 1347/2000 and amending Regulation (EC) No 44/2001 in matters relating to maintenance, COM(2002) 222 final/2, OJ 2002 C 203 E/155.

13 - See Article 61(e) of the proposal, op. cit.

14 - See in detail P. McEleavy, ‘The new child abduction regime in the European Union: symbiotic relationship or forced partnership?’, 1 Journal of Private International Law, pp. 5-34, in particular pp. 8-14.

15 - See, among many, J. Rieck, ‘Kindesentführung und die Konkurrenz zwischen dem HKÜ und der EheEuGVVO 2003 (Brüssel IIa)’, Neue Juristische Wochenschrift, 2008, pp. 182-185, in particular p. 184.

16 - My emphasis.

17 - This is accurately pointed out by M. Frank, in: M. Gebauer, T. Wiedmann, Zivilrecht unter europäischem Einfluss, 2^nd edition, Stuttgart et al., 2010, Chapter 29, paragraph 42.

18 - See recital 17 of Regulation No 2201/2003.

19 - This is termed as a ‘significant realignment in child abduction methodology’ by P.R. Beaumont, P.E. McEleavy, Private International Law, A.E. Anton 3^rd edition, Edinburgh 2011, paragraph 17.100, p. 838.

20 - See T. Rauscher, ‘Parental Responsibility Cases under the new Council Regulation “Brussels IIA”’, 5 The European Legal Forum, 2005, pp. I-37-46, in particular p. 43.

21 - See Article 60(e) of Regulation No 2201/2003.

22 - See Article 62(1) of Regulation No 2201/2003.

23 - For a detailed analysis of the general question of the Court’s jurisdiction in interpreting international agreements, see Opinion of Advocate General Kokott in TNT Express Nederland (C-533/08, EU:C:2010:50, point 45 et seq.).

24 - See Council decision of 5 October 2006 on the accession of the Community to the Hague Conference on Private International Law (2006/719/EC), OJ 2006 L 297, p. 1.

25 - See status table of the 1980 Hague Convention, available at: http://www.hcch.net/index_en.php?act=conventions.status&cid= 24.

26 - This is particularly the case in a situation in which it is difficult to establish which parts of Article 11 of Regulation No 2201/2003 merely refer to the 1980 Hague Convention and which parts actually complement it, though such a distinction is possible, as I have tried to demonstrate above.

27 - McB. (C-400/10 PPU, EU:C:2010:582).

28 - See McB. (EU:C:2010:582, paragraph 35) where the Court held that ‘In the present case, the referring court considers that it needs an interpretation of Regulation No 2201/2003, and in particular Article 2(11), in order to give a ruling on the application before it, which seeks from that court a decision or a determination declaring that the removal or retention of the children concerned in the dispute in the main proceedings was wrongful. It is evident moreover from the relevant national legislation, namely Section 15 of the Child Abduction and Enforcement of Custody Orders Act 1991, as amended by the European Communities (Judgments in Matrimonial Matters and Matters of Parental Responsibility) Regulations 2005, that, in cases of removal of a child to another Member State, the issue on which the national court must rule, when an applicant requests that it deliver such a decision or determination in accordance with Article 15 of the 1980 Hague Convention, is whether the removal is lawful under Article 2 of Regulation No 2201/2003.’

29 - See McB. (EU:C:2010:582, paragraphs 36 and 37).

30 - See Purrucker (C-296/10, EU:C:2010:665, paragraph 67).

31 - Regarding the ‘declaration’ of wrongful retention, see my comments above, footnote 8.

32 - This expression is used by the referring court.

33 - My emphasis.

34 - This is also made clear in Article 16 of the 1980 Hague Convention.

35 - This element appears to me to have been overlooked by the High Court in its judgment of 13 August 2013, op cit. See, in particular, paragraphs 35 and 52 of that judgment, available at http://www.bailii.org/ie/cases/IEHC/2013/H460.html.

36 - The father claims the habitual residence is in France.

37 - In any event, once a competent court is seised, in principle it retains jurisdiction even if the child acquires habitual residence in another Member State during the course of the court proceeding. This is known as the principle of perpetuatio fori. See K. Weitz, ‘Jurysdykcja krajowa w sprawach małżeńskich oraz w sprawach dotyczących odpowiedzialności rodzicielskiej w prawie wspólnotowym’, in: 16 Kwartalnik prawa prywatnego, 2007, pp. 81-154, in particular p. 126, who more accurately describes this principle as the principle of perpetuatio iurisdictionis. As a consequence of this principle, a change of habitual residence of the child while a proceeding is pending does therefore not itself entail a change of jurisdiction. See, in this connection, European Commission, Practice Guide for the application of the new Brussels II Regulation, Brussels 2005, p. 15, available at: http://ec.europa.eu/civiljustice/publications/docs/guide_new_brussels_ii_en.pdf.

38 - Grounds of non-recognition for judgments relating to parental responsibility.

39 - Prohibition of review of jurisdiction of the court of origin.

40 - And not, as in Article 8 of Regulation No 2201/2003 the habitual residence of the child at the time the court is seised.

41 - A (C-523/07, EU:C:2009:225).

42 - Mercredi (C-497/10 PPU, EU:C:2010:829).

43 - See Mercredi (EU:C:2010:829, paragraph 44).

44 - See Mercredi (EU:C:2010:829, paragraph 46).

45 - See recital 12 to Regulation No 2201/2003.

46 - See A (EU:C:2009:225, paragraph 44).

47 - See Mercredi (EU:C:2010:829, paragraph 51).

48 - See Mercredi (EU:C:2010:829, paragraph 54).

49 - See Mercredi (EU:C:2010:829, paragraph 56). In this judgment the Court furthermore put an emphasis on the intention of the person with parental responsibility to permanently settle with the child in another Member State, manifested by certain tangible steps such as the purchase or rental of accommodation as an indicator of the transfer of habitual residence. While in the present case the intention of the mother should certainly be appropriately taken into account as a factual element, it should nevertheless be stressed that this emphasis of the Court on the intention is to be seen against the background of the facts of the Mercredi case where the duration of the mother’s stay in the other Member State had been very short. Indeed as R. Lamont, ‘Habitual residence and Brussels IIbis: developing concepts for European private international family law’, 3 Journal of Private International Law, 2007, pp. 261-281, in particular p. 263, points out: ‘The desire to establish habitual residence after a very short period of time has meant that the individual’s intentions in being resident have become relevant to whether they are habitually resident’.

50 - See Explanatory Report by Elisa Pérez-Vera, Madrid, April 1981, paragraph 66, available at: http://www.hcch.net/upload/expl28.pdf.

51 - P.R. Beaumont, P.E. McEleavy, op.cit., paragraph 7.67, p. 178: ‘Factual connections lie at the heart of the connecting factor and in this it can be contrasted with domicile’; T. Rauscher, Internationales Privatrecht, 3^rd edition, Heidelberg 2009, paragraph 273, p. 65.

52 - See e.g. R. Lamont, op. cit., p. 263 who accurately describes the concept as ‘simple to apply and flexible, changing as the circumstances of an individual, or family, changes over time’.

53 - See e.g. G. Kegel, K. Schurig, Internationales Privatrecht, München 2004, p. 471. See also Świerczyński, in: M. Pazdan (ed.), System prawa prywatnego. Prawo prywatne międzynarodowe, tom 20A, Warszawa 2014, paragraph 113, p. 233.

54 - The terms in German legal doctrine of ‘Daseinsmittelpunkt’ (point of centre of existence) (T. Rauscher, op.cit., paragraph 274, p. 65) or ‘Lebensmittelpunkt’ (point of centre of life) (B. Heß, Europäisches Zivilprozeßrecht, Heidelberg 2010, § 7, point 55, p. 408) describe the matter very accurately. For an extensive analysis of the ‘Lebensmittelpunkt’ as the place of social ties of a person, see G. Kegel, ‘Was ist gewöhnlicher Aufenthalt?’, Recht im Wandel seines sozialen und technischen Umfeldes - Festschrift für Manfred Rehbinder, München/Bern 2002, pp. 699-706, in particular p. 701.

55 - One might add that the mother moved with the child to Ireland in the knowledge that an appeal before the Court of Appeal of Bordeaux had been lodged. It has been described above that the father lodged the appeal on 23 April 2012, while the mother moved to Ireland on 12 July 2012.

56 - As was clarified by the French Republic at the hearing, in France courts cannot maintain such rights.

57 - As shown above, this is beyond dispute.

58 - It should read ‘2 April 2012’.

59 - The reference by the referring court in the order for a preliminary reference to Health Service Executive (C-92/12 PPU, EU:C:2012:255, paragraph 59) to establish that the French courts had a ‘parental responsibility’ in relation to the child is immaterial. All the Court does in that judgment is to reproduce the legal definitions of Article 2(7), (8) and (9) of Regulation No 2201/2003.

60 - See Explanatory Report by Elisa Pérez-Vera, Madrid, April 1981, paragraph 65, available at: http://www.hcch.net/upload/expl28.pdf: ‘Although the problems which can arise from a breach of access rights, especially where the child is taken abroad by its custodian, were raised during the Fourteenth Session, the majority view was that such situations could not be put in the same category as the wrongful removal which it is sought to prevent.’

61 - This also seems to be admitted by the referring court and not disputed by the father.

62 - I recall that the Court of Appeal of Bordeaux on 5 March 2013 ordered the joint exercise of parental authority, and that the child should reside with the father with specified access and accommodation rights for the mother. The order for a preliminary reference states that the father alleges wrongful retention as of that date, whereas the ‘mother successfully contended in the High Court in Ireland that, immediately before the 5^th March, 2013, H was habitually resident in Ireland and thus the French courts were no longer seised of the matter’. I should like to point out once more that whether or not there is a wrongful retention is independent of the question whether the French courts ‘were seised of the matter’. As outlined above, this is immaterial, given that the subject-matters of proceedings in France and Ireland are different.

63 - See Explanatory Report, op. cit., paragraph 11.

64 - Ibid.

65 - This does not mean that I would establish a general rule under which a lawful removal can never turn into a wrongful retention. See also Explanatory Report, op. cit., paragraph 12.

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