Cour de cassation (France), Première chambre civile

Cour de cassation (France), Première chambre civile

France

20 March 2013

Mme X... et M. Y....

No 11-24.388; ECLI:FR:CCASS:2013:C100308

Supreme / Highest Court

Article 53(1)

Not provided

Code de procédure civile, Code civil

Not provided

The case concerned a Swiss couple. Following their separation, a Swiss court approved an agreement in 2004 establishing the father's contribution to their daughter's education. The mother subsequently moved to France with the child, and the father brought proceedings before a French court seeking a modification of the maintenance payments and the organisation of his contact and residence rights. Despite the mother's challenge to jurisdiction, the French court adopted several measures concerning the child, including provisional arrangements relating to the father’s contact rights, and affirmed its jurisdiction, in a ruling dated 9 March 2010. After appealing the French court’s jurisdiction, the mother returned to Switzerland on 1 September 2010, claiming that, pursuant to the 1996 Hague Convention, jurisdiction had shifted to the Swiss courts following the change in the child’s habitual residence. The Court of Appeal, in a ruling dated 19 April 2011, dismissed this argument, holding that the measures taken by the French court predated the Convention’s entry into force in France on 1 February 2011 and were therefore not subject to its provisions. The mother appealed to the Supreme Court, arguing that the initial measures had not become final and that, under the Convention, jurisdiction lies with the authorities of the State of the child’s new habitual residence. The Supreme Court dismissed the appeal, ruling that the 1996 Hague Convention, pursuant to Article 53(1), applies only to measures taken after its entry into force. Since the French courts had already adopted measures concerning the child before 1 February 2011, the mother could not rely on the Convention to challenge French jurisdiction. The fact that she had transferred the child’s residence to Switzerland during the proceedings did not alter this conclusion. The Court therefore confirmed that the French courts retained jurisdiction and upheld the decisions concerning the father’s contact and residence rights.

The Supreme Court of France clarified the temporal conditions governing the applicability of the 1996 Hague Convention in determining the jurisdiction of the French courts. It held that the Convention applies only to measures taken after its entry into force in the relevant States, in accordance with Article 53(1).