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.