Recherche de décisions

This case concerned a child of French nationality, who was born in Belgrade, Serbia but lived in France with their parents. Following the parents’ separation, the mother left France with the child and relocated to Serbia in May 2016. On 20 August 2016, the father brought the child back to France.

The mother filed a return application under the 1980 Convention with the Serbian Central Authority. The public prosecutor (procureur de la République), on 17 March 2017, brought proceedings against the father before the District Family Court (juge aux affaires familiales du tribunal judiciaire) of Amiens to obtain the return of the child to Serbia.

The case went before the Court of Appeal (cour d’appel) of Amiens, which declared the removal of the child wrongful and ordered the return of the child. The father appealed this decision before the Supreme Court (Cour de Cassation).

Appeal dismissed. The Supreme Court upheld the ruling of the Court of Appeal that the child’s removal was wrongful and ordered the child’s return.

Habitual Residence - Art. 3

The father claimed that the child was habitually resident in France before going to Serbia in May 2016 and that the child did not acquire a new habitual residence in Serbia between May and August 2016.

The Supreme Court cited the case law from the Court of Justice of the European Union (CJEU), including Mercredi C-497/10 PPU of 22 December 2010, to recall that the child's habitual residence was determined by taking into account several factors that may indicate that their presence in a State is not merely temporary or occasional but that it reflects a certain degree of integration into a social and family environment. Among those factors, the Court recalled that there was the intention of at least one of the parents to settle with the child in another State, expressed by certain tangible measures such as the purchase or rental of accommodation in that State.

In this case, the Supreme Court agreed with the Court of Appeal’s finding that the child’s stay in France was only temporary and that their habitual residence was in Serbia at the time of the removal. The Supreme Court upheld the Court of Appeal’s view that the child’s French nationality was not in and of itself determinative of  their habitual residence, nor was their vaccination and enrolment in a nursery school, which took place after the date of the removal. The Supreme Court also took into consideration correspondence with various government agencies, the mother’s temporary residence permit in France as well as the fact that a health insurance card showed that the child’s stay in France was only occasional. In addition, the Supreme Court took note that the mother had secured her own accommodation in Serbia from July 2016 on.

The Supreme Court upheld the Court of Appeal’s analysis, concluding that the mother’s intention to establish the child’s habitual residence in Serbia had been proven. The child’s habitual residence was therefore found to be in Serbia at the time of the removal.

Rights of Custody - Art. 3

The father challenged the Court of Appeal’s consideration that the mother was the sole holder of rights of custody over the child at the time of the removal.

The Supreme Court upheld the Court of Appeal’s decision that the removal of the child was in breach of the mother’s rights of custody and, as such, was wrongful, citing Article 77 of the Serbian Family law of 24 February 2005, which stipulates that when a parent lives alone with the child without the court having yet ruled on the custody rights, the exercise of parental responsibilities falls exclusively to that parent (in this case, to the mother living alone with the child in Serbia since May 2016).

Author: Camille Druilhet