CYIL Vol. 7, 2016

DALIBOR JÍLEK – JANA MICHALIČKOVÁ CYIL 7 ȍ2016Ȏ The Court retained the factual content of the concept of habitual residence. Moreover, it adjudicated a flexible character to it. 128 The Court explained the substance of the concept of habitual residence in the Proceedings brought by A by the means of a descriptive definition: Therefore, the answer to the second question is that the concept of ‘ habitual residence’ under Article 8(1) of the Regulation must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. The definition comprises a constituent ‘some degree of integration by the child in a social and family environment’. Integration into an urban community, i.e. into its social and religious life, was bound to the component (factum) of the Roman concept of domicile of choice. Following to the opinion of Advocate General Kokott in the case Proceedings brought by A , the constituent quoted above gains the character of common factual criterion. 129 Besides this common criterion the Court points to the indispensable application of specific factual criteria. Their enumeration is not exhaustive. Application of criteria must be holistic in nature. All known circumstances of a single case must be taken into account. 130 In this respect both the Court of Justice and the Court of First Instance applied the concept of habitual residence consistently since in the first cases mentioning it. Specific circumstances of the Mercredi case, a two month old baby, prompted the Court of Justice to consider further criteria. 131 The Court articulated its legal opinion as for animus of the person holding parental responsibility. The Roman concept of domicile was built on the binary structure factum and animus . However, the Court does not handle intent as one of the components of a legal concept but as a factual criterion. The Court in this respect considered a temporary question of the 128 LENAERTS, Koen. The Best Interests of the Child Always Come First: The Brussels II bis Regulation and the European Court of Justice. J urisprudence , 2013, Vol. 20, No. 4, p. 1306. 129 Opinion of Advocate General Kokott delivered on 29 January 2009, Case C-523/07, paragraph 48: “The familial situation is characterised by the persons with whom a child lives at the place of residence or is in regular contact, in other words parents, siblings, grandparents or other close relatives. For social integration, circumstances such as school, friends, leisure activities and, above all, command of language are important.” 130 Judgment of the Court (Third Chamber), 2 April 2009, Proceedings brought by A , C-523/07, paragraph 37: “The ‘habitual residence’ of a child, within the meaning of Article 8(1) of the Regulation, must be established on the basis of all the circumstances specific to each individual case.” 131 Judgment of the Court (First Chamber), 22 December 2010, Barbara Mercredi v Richard Chaffe , C-497/10 PPU, paragraph 50.


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