A Place to Call Home: The Habitual Residence of the Child Before the CJEU

The CJEU defines the habitual residence of the child as the place where their centre of life is de facto located. Given the comprehensive nature of such a concept, the national courts enjoy a margin of discretion in the analysis of all the factual elements pertaining to each individual case. However, the CJEU has recently held that the physical presence of the child in the Member State in which he/she is allegedly integrated is a conditio sine qua non for identifying the habitual residence of the child. This requirement applies in all cases and accepts no derogation. This article argues a differentiated approach for infants born fortuitously or by force majeure outside the Member State in which the parent(s) upon which he/she is dependent are habitually resident is necessary, in order avoid legal uncertainty, and the production of a detrimental effect on the best interests of the child and the overall effectiveness of Brussels II a.