Advocate General Saugmandsgaard Øe delivered yesterday his opinion in case C‑393/18 PPU (UD v XB), which is about Brussels II bis.
“(1) The habitual residence of a child, within the meaning of Article 8(1) of Council Regulation (EC) No 2201/2003 […] corresponds to the place where that child has its de facto centre of interests. That place must be determined in the light of all the circumstances of each individual case. In certain exceptional situations, the global assessment of all the circumstances may lead to the view that the child has, de facto, the centre of its interests in a place in which it has never been physically present. The physical presence of the child is therefore not a prerequisite for the purpose of establishing the child’s habitual residence there.
(2) The circumstance that the mother of an infant, who has actual custody of that infant, was compelled by the father to give birth in a third State and to remain there with the infant after its birth, placing them, where that is the case, in a situation contrary to the fundamental rights enshrined in Articles 4 and 6 of the Charter of Fundamental Rights of the European Union, constitutes a relevant factor for the purposes of determining the child’s habitual residence within the meaning of Article 8(1) of Regulation No 2201/2003.
In such a situation, the infant can, however, be habitually resident in a Member State, notwithstanding the fact that it has never been physically present there, only in so far as its mother has her de facto centre of interests there, this being a matter which it is for the referring court to ascertain. In this regard, particular importance attaches to any indicia demonstrating that the mother has family, social and cultural connections in that Member State, as well as to any tangible manifestations of the mother’s intention to live there with the child following its birth”