Jeremy D. Morley
www.international-divorce.com
The Court of Justice of the European Union has issued
a fascinating opinion (ECLI:EU:C:2017:436)
concerning the definition of the term “habitual residence” as employed
in both the Hague Abduction Convention and the governing European Union
regulations. The contrast between the European approach to interpretation of
this key term, and the various conflicting and confusing approaches taken by
courts in the United States, could hardly be stronger.
The case concerned an Italian father and a Greek
mother who lived together in Italy until the wife, while pregnant and with the
father’s agreement, went to Greece to give birth to their child. Their plan was
that she would return to Italy with the baby after some undefined period of
time with her family in Greece. Five months after the baby’s birth, and upon
the mother’s refusal to return to Italy, the father brought a case in Italy for
divorce and custody and a case in Greece for the return of the allegedly
abducted child.
The Greek court then asked the E.U. Court of Justice
for an urgent preliminary ruling on whether the child was habitually resident
in Greece.
The E.U. Court ruled as follows:
1.
The concept of habitual residence is an autonomous one
of EU law.
2.
Its meaning must be uniform.
3.
The habitual residence of a child corresponds to the
place which reflects some degree of integration by the child in a social and
family environment.
4.
The child’s presence should not in any way be temporary
or intermittent.
5.
The relevant factors to consider include the
duration, regularity, conditions and reasons for the child’s stay in the
country and the child’s nationality.
6.
If the child is an infant, its environment is
essentially a family environment, and it necessarily shares the social and
family environment of the person(s) who care for the child.
7.
The intention of the parents to settle permanently with
the child in a country can also be taken into account, if shown by certain
tangible steps such as the purchase or lease of a residence.
8.
Parental intention cannot as a general rule by itself
be crucial to the determination of the habitual residence. It is only an ‘indicator’
that can complement other consistent evidence. A general and abstract rule that
the initial shared parental intention is decisive would “transcend the concept”
of habitual residence, would contravene the structure, effectiveness and the
objectives of the return procedure, and “would be detrimental to the
effectiveness of the return procedure and to legal certainty.”
9.
A return procedure is, inherently, an expedited
procedure, since its aim is to ensure the prompt return of the child. The EU
legislature has given concrete expression to that imperative, in
Article 11(3) of Regulation No 2201/2003, by requiring courts seized
of applications for return to issue their judgments, save in exceptional
circumstances, no later than six weeks after the application is lodged.
10.
An application for return must therefore be based on
information that is quickly and readily verifiable and, so far as possible,
unequivocal.
11.
Yet, it may be difficult, if not impossible, in a case
such as the pending case, to establish beyond all reasonable doubt, for
example, the date initially envisaged by the parents for the mother’s return,
and whether her decision not to do so is the cause or, on the contrary, the
consequence of the father’s divorce proceedings.
12.
To interpret, in such a context, the concept of
habitual residence in such a way that the initial intention of the parents as
to the place which ‘ought to have been’ the place of that residence would
constitute the fundamental factor, would be likely to compel the national
courts either to gather a substantial quantity of evidence and testimony in
order to determine with certainty that intention, which would be difficult to
reconcile with the requirement that a return procedure should be expeditious,
or to issue their judgments while not in possession of all the relevant
information, which would result in legal uncertainty.
13.
The aim of the return procedure is to put the child
back in the environment with which the child is most familiar and, thereby, to
restore the continuity of the child’s living conditions and the conditions in
which the child can develop.
14.
However, the alleged wrongful conduct of one parent
cannot in itself justify ordering the removal of the child from the country
where the child was born and has lawfully and continuously lived to a country
with which the child is not familiar.
15.
Consequently, when a child has been born and has lived
continuously with her mother for several months, in accordance with the joint
wishes of her parents, in a country other than that where those parents were
habitually resident before her birth, the initial intention of the parents with
respect to the return of the mother, together with the child, to the latter
country cannot allow the conclusion that that child was “habitually resident”
there, within the meaning of that regulation.
16.
The child was habitually resident in Greece.
Accordingly, the child should not be returned to Italy under the Hague
Convention (as brought into European Union) and the Greek court should
determine matters concerning the child’s custody.
In extremely sharp contrast, the courts in most U.S. federal circuits
have elevated the last shared intention of the parents to a dominant position
in the interpretation of habitual residence. Making matters worse, some courts
adopt an interpretation that is closer to the European approach, some courts
adopt a middle ground between the two extremes, and many courts follow shifting
principles concerning such issues as whether the intentional abandonment of a
prior habitual residence must be established before a new habitual residence
can be acquired, and whether and when so-called “acclimatization” trumps
intent.
Moreover, except for giving calendar priority to Hague cases,
U.S. courts have failed to address the need to tailor judicial procedures in
such cases to reflect the need for expeditious resolution.
As a result, when the issue of habitual evidence is
contested, they generally allow – and, indeed, encourage – the presentation of voluminous
evidence at trial concerning the last shared intention of the parents, which
requires proof of the intimate details of such matters as shipping of specific
kinds of clothing and other items, the substance of speeches at alleged
farewell parties, the meaning of text message phrases of farewell or bon
voyage, the passing remarks made to real estate agents, and an unlimited stream
of other information addressing in any way the issue of exactly what was in the
minds of each parent as they drove to the airport.
Furthermore, while the courts in most countries rely
primarily on written submissions in Hague cases, courts in the United States usually
require evidence in the form of live testimony and they often authorize
extensive pretrial sworn depositions and other discovery.
The result is that Hague Convention cases in the United
States, especially in those circuits that have followed the majority
interpretation of habitual residence, can consume weeks and months of attorneys’
preparation time, and weeks of trial time, leading to transcripts of thousands
of pages of testimony, extraordinary delays in securing initial decisions and cases
that may languish on appeal for months and even years.
Adding insult to injury is the uniquely American rule that a
losing respondent in a Hague case – but not a losing petitioner – must normally
be ordered to pay all of the legal fees and related expenses of the petitioner
(including the often extraordinary attorneys’ fees of petitioner’s pro bono
counsel calculated at their full hourly rates). While it may be appropriate to
sanction a brazen international child abductor, the issues in Hague cases are
often close and unpredictable and they are rendered much more so in the United
States by virtue of the contradictory case law concerning such loose terms as
“last shared parental intention” and “grave risk of harm.”
Indeed, it is simply shocking that the United States Supreme
Court has refused numerous applications for certiorari to address the issue of
the interpretation of habitual residence, despite (a) the existence of a clear
split among the federal circuits, (b) the express treaty requirement of uniform
international interpretation, as well as prompt results, (c) the clear
divergence between the majority U.S. approach interpretation and that which has
been adopted by most other countries, (d)
the extraordinary waste of judicial and attorneys’ effort that results
from confusion concerning the interpretation of the term, and from the
interpretation of the majority of the circuits that focuses on the mindsets of
the parents, and (e) the resulting fantastically high legal fees incurred by parents
on both sides of these cases who are often simply trying to do the best to
protect and nurture their children.
The Old World still has a few things to teach us, I submit.