On 12 May 2022, the Court of Justice handed down the judgement in the WJ case (C-644/20) interpreting the Hague Protocol of 2007 on the law applicable to maintenance. The case revolved around the determination of the habitual residence of a creditor in the context of a child abduction.
AP and WJ are Polish nationals who were residing in the UK, where their two children were born. In 2017 AP went to Poland together with children. Later she has informed WJ that she wanted to remain with children in Poland. WJ did not agree. In 2018 the children, represented by AP, claimed monthly maintenance payments from WJ before the Polish court. WJ appeared before this court without objecting to its jurisdiction. That court ordered him to pay to each of his children a monthly maintenance payment in accordance with Polish law. WJ brought an appeal against the judgment before the regional court. In the meantime, the same court ordered the return of the children to the UK, pursuant to the Hague Child Abduction Convention, was as they have been retained unlawfully in Poland and that their habitual residence immediately before that retention was in the UK. EJ appealed the maintenance order.
In accordance with Article 3(1) of the Hague Protocol, maintenance obligations are governed by the law of the State of the habitual residence of the creditor. However, pursuant to Article 3(2) Hague Protocol, in the case of a change in the habitual residence of the creditor, the law of the State of the new habitual residence shall apply as from the moment when the change occurs.
The Polish court had doubts as to whether a child might be considered for the purpose of applying Article 3 of the Protocol as being habitually resident in Poland, a country in which the child was wrongfully retained as confirmed by the decision ordering child’s return to the UK. Hence, it decided to consult the Court of Justice of the EU on that matter.
It is worth noting that the creditor in this case, in accordance with domestic rules on civil procedure, is a child represented by one of parents, namely the mother. Similarly, for the purpose of Article 3(1) of the Protocol, the habitual residence of a child was being discussed. The question who is a creditor in case of a minor child is not uniformly understood in all EU Member States (for details see: the recent position paper of the EAPIL Working Group on Maintenance prepared at the request of the HCCH Special Commission on Maintenance, para. 15-17).
Reasoning of the Court of Justice
The Court of Justice made some general remarks on the notion of habitual residence serving as a connecting factor in many EU and HCCH instruments, as well as referring to its previous judgments (for example, in Mölk case, C‑214/17). Then, the Court decided to rely on the explanatory report to the Hague Protocol. Point 37 of this report, which was cited by the Court of Justice of the EU, reads as follows
This connection offers several advantages. The main one is that it allows a determination of the existence and amount of the maintenance obligation with regard to the legal and factual conditions of the social environment in the country where the creditor lives and engages in most of his or her activities. As rightly noted by the Verwilghen Report, “[the creditor] will use his maintenance to enable him to live”. Accordingly, “it is wise to appreciate the concrete problem arising in connection with a concrete society: that in which the petitioner lives and will live”.
Hence, in the view of the Court of Justice, the assessment of the habitual residence of a child must consider factual circumstances. Assuming that a return decision handed down pursuant to HCCH Child Abduction Convention might be an obstacle to the conclusion that a child is habitually resident in a state to which the child was abducted, would be contrary to the aim of Article 3 Hague Protocol, as well as principle of the best interest of a child.
Given the above the Court of Justice has rightly decided that a child may acquire a new habitual residence in the state in which the child was wrongfully retained, even if the court of that state orders the return of the child to the state in which the child habitually resided immediately prior to the wrongful retention.