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ItalianoCASE STUDY 1.1
The minor, Cecilia, was born in Spain in 2007. Right after her birth, her parents moved to Portugal where they established their residence because the father’s family roots were Portuguese. In particular, Cecilia and her parents moved to O Alto Douro Vinhateiro, in northern Portugal. In this country, the father ran the family’s business dedicated to the Port wine (“Vinho do Porto”), famous around the world.
Cecilia’s mother devoted herself to the family although as time went by, she started feeling anxious as a consequence of not investing her time in a qualified job. In fact, she held a PhD in social science and she felt as if she was wasting her life because she was not working in her specialized field. On top of that, the couple felt like their marriage was simply standing still. In other words, the couple fell into a routine that ended up in January 2014 with their divorce by mutual consent. In their settlement agreement, both parents regulated the parental responsibility in the following way: “The custody over Cecilia is conferred on Cecilia’s mother”. In the same agreement, both parents granted the father rights of access. The settlement agreement was homologated by a Portuguese judgment.
On the 14th September 2016, Cecilia’s mother moved to Barcelona (Spain) with her daughter in order to find a job in her specialized field. Her decision to move to Barcelona was motivated by the fact that in this country she would have the support of her family, as she was a Spanish citizen.
In parallel, Cecilia’s mother sent a letter to her ex-husband notifying him of her displacement to Spain in order to settle down there with their common daughter. Her ex-husband received the letter on the 16th September 2016.
In February 2017, Cecilia’s father brought an action against Cecilia’s mother for the prompt return of the child before Spanish courts.
(Drawn from Supremo Tribunal de Justiça, Secçao Cível, 10.10.2013)
– Does a child abduction situation exist? Which conditions should be complied with for a child abduction to exist?
Questions to be analysed: concept and conditions of child abduction, compatibility of legal instruments on child abduction; concept of custody rights; entitlement or custody rights; evidence of foreign law.
Applicable legislation:
- Precedence of Brussels IIa Regulation over 1996 Hague Convention: Art. 61 of the Brussels IIa Regulation
- 11 and 60 and recital 17 of the Brussels IIa Regulation: Brussels IIa Regulation complements the 1980 Hague Convention
- Conditions of child abduction: Art. 2(11) Brussels IIa Regulation: and Art. 3 of the 1980 Hague Child Abduction Convention:
- breach of custody rights;
- the holder’s custody rights must be 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.
- the rights of custody were to be exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
- Breach of custody rights: Art. 9 of the Brussels IIa Regulation: concept of custody rights
- Entitlement source of custody rights: law of the competent authority (Article 15) or the law of the child’s habitual residence (Article 16) 1996 Hague Child Protection Convention.
– Legislation: internal law and conflict of law rules of the child’s habitual residence. Applicability of the law of the competent authority or the law of the child’s habitual residence (Art. 15 and 16 of the 1996 Hague Convention)
– In case the State has different legal systems: Art. 31 and 32 of the 1980 Hague Child Abduction Convention
– Evidence of foreign law or judgment issued by the court of origin: Art. 14 and 15 of the 1980 Hague Child Abduction Convention; certificate provided by Central Authorities according to Art. 8.3 1980 Hague Convention; International Hague Network of Judges
- The rights of custody should have actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention: Brussels IIa Regulation and the 1980 Hague Convention: tacit presumption that the person who takes care of the child actually exercises custody over her/him
By contrast, Article 13 of the same 1980 Hague Convention: conditions at the abductor disposal to raise against the return of the child
CJEU case law:
C-400/10 PPU, McB (5 October 2010) autonomous concept of “custody rights”, but the determination of who holds such rights of custody depends on the law of the child’s place of residence before the removal or the retention t (para. 41-43).
CASE STUDY 1.2
An unmarried couple with three children had lived for some time in Australia before moving back to the father’s State of nationality, Ireland. Since then onwards, all the members of the family had their habitual residence in Ireland. In 2015 the relationship between the parents began to deteriorate. As the couple grew farther apart, the mother started thinking about going back to England, given that she was of British nationality.
Consequently, in the beginning of 2017 she took all three children to United Kingdom.
In April 2017, the father lodged an application before the High Court of Justice of England and Wales (Family Division) initiating proceedings whereby he asked that court to order the return of the children to Ireland, in accordance with the United Kingdom legislation implementing the 1980 Hague Convention and the Brussels IIa Regulation.
(Drawn from the European Court of Justice judgment held on 5.10.2010, C-400/10 PPU, J. McB. v L. E.)
– Does a child abduction situation exist? Which conditions should be complied with for a child abduction to exist?
Questions to be analysed: conditions for a child abduction to exist in case of a natural father; concept of custody rights without a settlement agreement between the partners
Applicable legislation: see answer to question 1
CJEU case-law: ECJ judgment held in the Case-400/10 PPU (para. 48), but taking into account the last developments in Irish law, recognising some additional rights to the natural father.