Posts tagged ‘EU Family Law’
Habitual Residence in the EU?
Habitual residence faces considerable uncertainty in the EU. Regulation 2201/2003—also known as Brussels IIbis (“BIIbis”)—establishes jurisdiction in parental responsibility disputes among EU Member States. (Here is an overview of EC Regulation 2201/2003). Habitual residence is the key factor in determining jurisdiction. This post analyzes a recent ECJ case and then contrasts its holdings with two subsequent UK cases.
a. Habitual Residence in the ECJ
The ECJ has endorsed a fact-based habitual residence test for cases under BIIbis in one decision so far. The case, A (C-523/07), involved a parental responsibility dispute between a mother and a public child welfare agency. Three children who lived with their mother and stepfather in Sweden since 2001 traveled as a family to Finland in the summer of 2005 to spend their summer holiday. While still in Finland in October 2005, they applied for public housing.
In November, a local welfare agency removed the children to a childcare unit. The mother unsuccessfully challenged this action in a Finnish court. On appeal, a Finnish appellate court submitted four questions to the ECJ.
In the central question, the Finnish asked how to determine the children’s habitual residence, considering their peripatetic lifestyle in Finland. The Advocate General’s (“AG”) opinion framed the issue with the need for a precise definition of habitual residence in light of the spirit and…
