PIL instrument(s)

Case number and/or case name

T.M. v W.R. - P.07.1193.F - Cass., 21 November 2007

Details of the court

Belgium, Third Instance

Articles referred to by the court

Date of the judgement

20 November 2007

Appeal history

CJEU's case law cited by the court

Summary

According to Art. 2(7) Brussels IIbis, the term "parental responsibility" shall mean all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term shall include rights of custody and rights of access. It follows from Art. 1(1) and (2) Brussels IIbis that the fact that a specific issue of parental responsibility is part of public law in the Member State concerned does not preempt the application of the Regulation. Thus, the Regulation applies to legal aid for youth instituted by the “décret du 20 mars 1995 du Conseil de la Communauté germanophone” (“Decree of 20 March 1995 of the Council of the German-speaking Community”) when the measure taken is to entrust is the youth to one of his parents. Under the Brussels IIbis Regulation jurisdiction is based on the habitual residence of the child. Art. 9(1) Brussels IIbis provides that where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the courts of the Member State of the child's former habitual residence shall, by way of exception to Article 8, retain jurisdiction during a three-month period following the move for the purpose of modifying a judgment on access rights issued in that Member State before the child moved, where the holder of access rights pursuant to the judgment on access rights continues to have his or her habitual residence in the Member State of the child's former habitual residence. When a court is seised, it retains its jurisdiction even if the child acquires a habitual residence in another Member State during the proceedings. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, and where this is in the best interests of the child, request a court of another Member State to assume jurisdiction, in accordance with the conditions of Art. 15 Brussels IIbis. The change of habitual residence of the child does not cause an automatic transfer of jurisdiction. The first judge of the Youth Court of Eupen had been seised by the public prosecutor on 9 March 2005. On 20 December 2006, the Youth Court had entrusted the exclusive custody of the child with the father for a period of two years. During a new decision in the same case of 23 May 2007, the Youth Court found that the child had been habitually resident with the defendant (the father) in Germany for over three months and referred the case to the Familiengericht of the Amtsgericht of Königswinter. The Court of Appeal of Liège, erroneously, confirmed that decisions. The court could not decline jurisdiction on the basis that the child was now habitually resident in Germany. The court should have applied Art. 15 Brussels IIbis. Therefore, the Court of Cassation rescinds the decision of the Court of Appeal. SHORT CRITIQUE The Belgian Supreme Court correctly spells out the mechanism of art. 15 of the Brussels IIbis Regulation.