2016/12/20 - 21 Cdo 2850/2016 (summary)

Judgement of the Supreme Court dated 20 December 2016, file number 21 Cdo 2850/2016

(habitual residence, international child abduction)



The mother of a minor moved with her son to Austria and signed a written agreement with the child's father on the relationship with the child where the father consented to the stay of the child outside the territory of the Czech Republic. The agreement was concluded for a period of one year and its extension was explicitly conditional on compliance with the conditions of contact between the father and the child. As a disagreement between the parents appeared, the mother sought to adjust the father's contact with the minor and to determine the place of residence of the minor by a petition to the District Court in the Czech Republic. This court, as well as the court of appeal, concluded that at the time of the proceedings, the minor had already been socially integrated in Austria. His residence on the territory of Austria therefore fulfils the conditions of "habitual residence" within the meaning of Council Regulation (EC) No 2201/2003 ("Brussels II bis" Regulation). The proceedings were therefore terminated as the Czech court had no jurisdiction.

The Supreme Court, in response to the appeal, found that the decisive factor for the decision of the appellate court was a determination whether the child's habitual residence could be relocated to another Member State of the European Union where the child resided from the outset under a conditional parental agreement. The appellate court concluded that the decisive moment for the determination of the international jurisdiction of the court is the moment when the proceedings are initiated. The facts relevant to habitual residence must therefore be assessed on that date and not retroactively. In view of the settled case-law of the Court of Justice of the European Union on the interpretation of 'habitual residence', it is necessary to take into account not only the physical presence of the child and the degree of integration, but also the fact whether this presence is not only temporary or occasional. The case-law of the signatory states of the Hague Convention on the Civil Aspects of International Child Abduction in the event of a temporary transfer abroad admits that habitual residence will be retained in the original Member State, even for a longer period of time. The court therefore annulled the judgment of the appellate court and remanded the case to the court of first instance for further proceedings.