HC/E/FR 1005
FRANCE
Cour d'appel de Reims, Chambre civile, Section Famille
Appellate Court
NETHERLANDS - KINGDOM IN EUROPE
FRANCE
4 July 2006
Upheld on appeal
Habitual Residence - Art. 3 | Rights of Custody - Art. 3
Appeal allowed, return ordered
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The Court observed that the Moroccan decision did not specify the residence of the child. It added that, until the divorce, the residence of the child was, under the Netherlands Civil Code, determined as the family home in the Netherlands, even if the mother's employment situation was unstable there and even if the mother frequently and for long periods of time visited her family in France accompanied by the child and with the consent of the father.
The Court recognised that the judge at first instance had considered that it was not possible to establish with which parent the child had his habitual residence but found that after the divorce the mother had asked the father for permission to take the child with her for three weeks provided that she drive the child back to the Netherlands at the end of this trip.
The mother had subsequently refused to do so and had told the French police that she wished to keep the child. The Court found that the primary habitual residence of the child was in the Netherlands.
The mother referred to the Moroccan divorce decree of January 8, 2005, and maintained that she had custody of the child under Moroccan law. She cited Article 99 of the Dahir of December 18, 1957, and Article 171 of the Family Code of February 3, 2004, providing that, in the event of divorce, custody is first granted to the mother.
However, the Court observed that it was not established that Moroccan law was applicable to the child and, furthermore, that the Moroccan divorce decree, which indicated that the father would pay child support until his son reached the age of majority, did not award sole custody to the mother.
In order to determine the custody of the child, the Court first settled the question of the habitual residence of the child. The habitual residence being the Netherlands, the Court cited Article 251 of the Netherlands Civil Code according to which the parents, married at the time the child was born, have joint parental authority following divorce.
The Court added that the Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003) was applicable and that, under Article 2, the rights of custody included all rights and duties relating to the person of a child (particularly his or her residence) and in reality dealt with the concept of parental authority.
Observing that the father had not consented to the child moving to France and that no legal decision had ruled on custody, the Court concluded that the removal of the child to France and his retention were wrongful within the meaning of the Convention.