An action for child support in a country of wrongful parental abduction
The topic of today’s article relates to the landmark judgment handed down by the Court of Justice of the European Union on May 12, 2022, in the case pending under case number C-644/20.
The case originated in a Polish court. The siblings, who were both Polish and British citizens, brought an action against their father for maintenance, which was to be paid monthly. Initially, the children lived with their parents, who were Polish citizens in the United Kingdom, but in 2017 the mother decided to return with the minors to Poland, to which the children’s father did not agree. The court of first instance, based on the provisions of Polish law, awarded alimony to the minors, from the judgment of which the children’s father appealed to the District Court in Poznań. As a result of this situation, the Regional Court expressed doubts as to the legitimacy of the above-mentioned case and referred the matter to the Court of Justice for a preliminary ruling on the following question: “Can a maintenance creditor who is a child, for the purposes of determining the law applicable to a maintenance claim, obtain a new habitual residence in the State in which he was unlawfully retained, in the event that the court orders the creditor to return to the State in which he was habitually resident immediately before his unlawful retention? “, and also ordered the mother to surrender the children, claiming that they had been unlawfully detained on Polish territory.
In its judgment, the Court of Justice indicated that, for the purposes of determining the law applicable to a maintenance claim concerning a minor child abducted by one parent in the territory of a Member State, the fact that a court of that Member State has ordered, in separate proceedings, the return of that child to the State in which the child was habitually resident immediately before his or her abduction is not sufficient to prevent that child from becoming habitually resident in the territory of that Member State.
Next, the Court goes on to analyse and explain the concept of the habitual residence of the maintenance creditor on the ground that the Hague Convention does not define it. As a result of its considerations, the Court comes to the conclusion that the habitual residence of a maintenance creditor is the place where he actually has his center of habitual life, having regard to his family and social environment, in particular, where the creditor is a minor child, because of the need to take account of his best interests.
According to the Court, it is for the national court seised to determine the country in which the maintenance creditor is habitually resident. In order to determine the applicable law, that court must base its decision on the time when the judgment is to be delivered. With regard to the wrongfulness of the retention of the child (maintenance creditor), the Court states that it would be contrary to the child’s interests to hold that the existence of a judgment ordering the return of the child to the territory of another Member State precludes the child from being regarded as habitually resident in the territory of that State.
In conclusion, it should be stressed that in determining the applicable law, the national court may have to take into account the unlawful detention of the minor and it is for that court to examine whether his or her stay in the country of abduction is in fact permanent.
If you need more information we invite you to contact our lawyer Catherine:
Tel: +48 502 775 164
Email: k.lewicka@lzw-law.com