The Court of Justice of the European Union has been asked by the Poznan Regional Court to determine the law applicable to the determination of maintenance for young children (Case C-644/20).
A Polish couple had two children in the UK. The mother took her children to Poland and has remained there permanently ever since, against the wishes of the father who remained in the UK. She is claiming child support and has won her case in the Polish Courts. The father, who did not contest the jurisdiction of the Polish Court, obtained an order from the Polish Court for the mother to return the children to him on the basis that the children were unlawfully detained in Poland and that their habitual residence immediately prior to detention was the United Kingdom. The mother did not comply within the time limit.
In the course of the proceedings before the Court, the Polish Supreme Court partially annulled the order finding the children illegally detained.
Pursuant to the 2007 Hague Protocol on the law applicable to maintenance obligations, approved by EU Council Decision 2009/941, the law of the State of the creditor’s habitual residence, i.e. the children, applies.
The Hague Protocol does not define the concept of “habitual residence”. According to the Court, this notion corresponds to the habitual centre of the creditor’s life, taking into account his or her family and social environment, especially if it concerns a young child. Due consideration should be given to the best interests of the child, who should be provided with sufficient resources. And, in order to assess the place of habitual residence, the Court must look at the time when the claim for maintenance is made.
Furthermore, the Court held that it would be contrary to the best interests of the child to consider that a judicial decision of a Member State finding the detention of a child to be unlawful precludes, as a matter of principle, the finding that the child is habitually resident in the territory of that Member State. But the Court seized may take this into account in assessing all the circumstances of the case.
See the judgment (in French): https://aeur.eu/f/1m3 (Original version in French by Mathieu Bion)