The Concept of "Habitual Residence" as a Jurisdictional Basis in International Parental Responsibility Disputes: The Cypriot Approach

Written By Giorgos Kazoleas, Lawyer at Legal Experts Cyprus

In modern private international law, determining the Forum Conveniens (the appropriate court) for resolving parental responsibility disputes is a critical issue for ensuring the best interests of the child.


Within the Cypriot legal order, the jurisdiction of Family Courts in cases involving international elements—such as those involving third-country nationals—is primarily established through the concept of "habitual residence."

1. The Legal Framework: The 1996 Hague Convention and National Law

The establishment of jurisdiction for Cypriot Courts arises from the combined application of international and national rules:

1996 Hague Convention[1]: According to Article 5, the judicial or administrative authorities of the Contracting State of the child’s habitual residence have jurisdiction to take measures directed at the protection of the child’s person or property.

The Family Courts Law (Law 23/1990): Article 11(2)(e) provides that Cypriot courts have power provided that the parties (or at least one of them) reside in the Republic. Subsection (3) clarifies that "residence" is defined as a period exceeding three (3) months.

2. Interpreting "Habitual Residence"

Despite its central importance, "habitual residence" is not explicitly defined in international conventions. The jurisprudence of the Court of Justice of the European Union (CJEU) has filled this gap, defining it as an autonomous and factual concept.

In the landmark case C-523/07[2], the CJEU ruled that habitual residence corresponds to the place that expresses the child's integration into a social and family environment.

Integration Criteria according to the CJEU:

  • To determine residence, a court must evaluate:
  • Duration and Regularity: The length of time spent within the territory of the State.
  • Conditions and Reasons: The motives behind the family’s relocation.
  • Educational Integration: The place and conditions of school attendance.
  • Social Ties: Linguistic knowledge and family/social relationships.
  • Nationality: While considered, it does not override actual residence.

As the CJEU clarifies, if the evidence points toward more than one State, the judicial authority must prioritize the factors demonstrating the child's strongest center of life.

3. Application within the Cypriot Legal Order

Cypriot legislation introduces a quantitative criterion of three months as a minimum threshold for establishing jurisdiction. However, this application is qualitative rather than mechanical.

When a child:

  • Resides in Cyprus for a period exceeding 3 months;
  • Attends a Cypriot educational institution;
  • Has parents who work and reside permanently in the Republic;

Then the Cypriot Courts become internationally competent (Forum Conveniens). In these instances, the child's actual connection to Cyprus prevails over nationality, as the court of habitual residence is best positioned to judge the child's interest due to its proximity to evidence and the minor's daily reality.

A Landmark Cypriot Case

The established position of the Supreme Court in Giannopoulos v. Giannopoulou (2010) 1 A.A.D. 1917 [3] remains the cornerstone of the Cypriot approach. It clarifies that the three-month residence requirement in Law 23/1990 does not function automatically but must always be subordinate to the international criterion of "habitual residence."

The Court clarified:

"The term 'habitual residence' is not a technical term but is determined based on the facts of each case. Habitual residence is contrasted with temporary or occasional residence. Factors influencing this include professional employment, participation in cultural or social events, and the existence of a permanent or habitual home."

Regarding children, the Court added that physical presence must be accompanied by evidence that it is permanent rather than temporary or intermittent. There must be "clear indications of integration into the social and family environment." Referencing the aforementioned CJEU decision, the Cypriot court considers the duration of stay, the reasons for relocation, the children's nationality, schooling conditions, language, and overall social relations.

Conclusion

Habitual residence is a "living" concept that focuses on substance—the actual permanent residence of the children—rather than formalistic criteria such as nationality. The challenge lies in proving the child's substantial integration into the local community. When combined with the three-month period provided by Law 23/1990, this integration confirms the jurisdiction of domestic courts over any foreign authority.

Giorgos Kazoleas is Lawyer qualified in Cyprus, Managing Partner at Legal Experts Cyprus, tel. +357 22507666, email: gkazoleas@legalexpertscy.com, website: www.legalexpertscy.com

[1]  Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (Ratification Law N. 24(III)/2004).

[2] Court of Justice of the EU - Case C-523/07, A, 2 April 2009, paragraphs 37-39. [3] Family Court of Second Instance of Cyprus, Giannopoulos v. Giannopoulou, Appeal No. 33/2009, Decision dated 8.12.2010, published on cylaw.org.


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