EUPillar S.F. v. M.G. - 2008/RK/212 - Gent, 6 November 2008

Summary

The father abducted the child to Italy, where he confided the child with this sister. Both parents are Italian. The child's mother is resident in Belgium. The father is still in Belgium but claims he will leave permanently for Italy. The mother – appellant – initially commenced unilateral proceedings on 1 July 2008 to obtain the immediate return of the child. The first judge dismissed the mother’s claim because it was not clear why she needed to conduct unilateral proceedings. On 4 July 2008, she served the father with a writ of summons to obtain the return of the child, joint parental authority and sole custody of the child; as well as a certificate to ascertain the enforceability of the judgment abroad (Arts. 40 et seq. Brussels IIa). The father, on his part, seeks exclusive parental authority and main custody of the child, with rights of access for the mother once every two weeks. He claims the mother left for Italy on 18 April 2008 to start a new life with her new boyfriend, and that she has not cared for their daughter ever since. In first instance, the President of the Court of Bruges found the father’s version of events was more credible and that the case lacked urgency (which is need to conduct summary proceedings) since there was no reason to believe that the father would permanently establish himself with the child in Italy. On 26 August 2008, the appellant addressed the Belgian Central Authority in order to obtain the return of her child in conformity with the Hague Child Abduction Convention as completed by the Brussels IIa Regulation. DECISION OF THE COURT The father claims that the Belgian courts no longer have jurisdiction now that the child resides in Italy (with his sister). He enrolled himself and the child in the population registers in Italy on 14 August 2008 and also commenced legal proceedings in Italy. The Court makes a distinction between the jurisdiction as to the return of the child, on the one hand, and as to the measures sought regarding parental authority and custody, on the other. Regarding the return of the child, the procedure which was initiated within the framework of the Hague Convention in conjunction with certain provisions, such as Art. 11, of the Brussels IIa Regulation, should further run its course. The Court finds that the jurisdiction of the court as to the parental responsibility is firmly established on the basis of Art. 8(1) Brussels IIa. The Court which had jurisdiction at the time it was seised, maintain that jurisdiction even if the residence of the child was changed to a different country during the proceedings. On 4 July 2008, the child, G.M., was definitely habitually resident in Belgium. She had been enrolled in the population registers since 28 August 2006. There is no official document of an Italian authority that can confirm that her official residence was changed to Italy. Only the application for a change of address is submitted to the court. The 5-year old also went to primary school in Bruges. The exceptions to Art. 8 provided in Arts. 9, 10 and 12 are not applicable here. Art. 9 is applicable only where a child lawfully moves from one Member State to another. In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State (cf. Art. 10(1)). Art. 12 is not applicable because of the lack of agreement between the parents. The Court rescinds the decision of the President of the Court of First Instance of Bruges and takes new measures regarding parental authority and rights of custody. The Court issues a certificate in conformity with Art. 41 Brussels IIa. Short critique: the court correctly applies Brussels IIa.