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This case concerned a child born on 18 August 2018 in Germany. A declaration of joint parental responsibility has been made by the parents before the German civil registry office. On 8 August 2019, the mother brought the child to France. She did not return to Germany on 23 August 2019 as planned, and despite the father’s opposition to her remaining in France with the child. On 2 September 2019, the father filed a request for return before the German Central Authority. The public prosecutor (procureur de la République) brought proceedings against the mother before the Family Affairs Judge of the Judicial Court (juge aux affaires familiales du tribunal judiciaire) of Toulouse on 27 February 2020, in order to obtain the return of the child to Germany in accordance with the provisions of the 1980 Convention and the Council Regulation (EC) No 2201/2003 of 27 November 2003.

On 6 March 2020, the Family Court of Königstein-am-Taunus temporarily transferred the primary custody of the child to the mother.

The proceedings were brought before the Court of Appeal (cour d’appel) of Toulouse, which ordered the return of the child. The mother appealed this decision before the Supreme Court (Cour de Cassation).

Appeal dismissed. The French Supreme Court upheld the decision of the Court of Appeal that concluded that the retention of the child in France was wrongful.

Rights of Custody - Art. 3

In her appeal before the Supreme Court, the mother argued that the German court decision, dated 6 March 2020, temporarily gave her primary custody over the child and that this decision should have been taken into account to refuse to order the return of the child to Germany, especially in light of the provisions of the Council Regulation (EC) No 2201/2003 on the recognition and enforcement of decisions within Member States. The mother also alleged that, after the German decision was issued, the father did not have the right to determine the child’s place of residence and therefore could not request the return of the child in accordance with Articles 3 and 5 of the 1980 Convention.

The Supreme Court cited Articles 3 and 17 of the 1980 Convention, then recalled that the habitual residence of the child was in Germany, that both parents exercised rights of custody over the child under German law and that the mother remained in France after the holidays despite the father’s opposition. The Supreme Court therefore upheld the Court of Appeal’s decision that the retention of the child in France was wrongful, within the meaning of Article 3 of the 1980 Convention.

Author: Camille Druilhet