EUPillar X v. S.G. - Liège, 29 June 2010

Summary

The father, appellant, has French nationality and the mother, defendant, has Belgian nationality. The spouses have one child, S., who was born in 2006 and has French nationality. In July 2009, the parties come to Belgium. The mother and S. are registered at the municipality of Plombières, Belgium on 17 July 2009. On 19 July 2009, the father leaves Belgium with the child without informing the mother. The defendant commences proceedings before the courts of summary jurisdiction of Verviers on 24 July 2009 in order to obtain the immediate return of S. and rights of custody. The first judge grants the defendant’s claims. The child returned to the mother on 10 December 2009. On appeal, the appellant contests the jurisdiction of the Belgian courts. The Court of Appeal applies the Brussels IIa Regulation. The question is in which Member State S. was habitually resident at the time of his removal. The appellant argues that the parties came to Belgium on holiday to stay with the family of the mother, without the intention to definitively stay there. The defendant maintains the opposite. Until July 2009, S. was domiciled in Dax, France, was enrolled in a school there and had always lived in France. It appears from the documents the mother took the initiative to register the child in Plombières, Belgium on her own (even if this registration really only should have been accepted on joint demand of both parents). It does not seem that the father consented – and he himself did not register in Belgium. The concept of “habitual residence” is not defined in the Brussels IIa Regulation, so the Court of Appeal refers to the Borras report which includes a definition given by the ECJ on multiple occasions: “the place where the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account for the purpose of determining such residence.” This definition is not concerned with the habitual residence of the child in particular. The Court considers that relevant facts that should be taken into account are the place where the child lives, the place where he undertakes school and extra-curricular activities. On the facts of the case, the Court decides that there is no proof of the parties’ intention to establish themselves permanently in Belgium and that therefore the habitual residence of the child is in France. The Belgian courts lack jurisdiction. On the other hand, in urgent cases, the provisions of the Brussels IIa Regulation shall not prevent the courts of a Member State from taking provisional and protective measures (cf. Art. 20). The Court of Appeal decides that the case at hand was indubitably urgent, since the father had taken the child with him without informing the mother. The Court decides that in the current state of affairs, it is best to confide primary custody to the mother since the child has been integrated in his new environment for the past six months. The parties agree that the child can stay with his father during the month of July. This agreement will last until the competent courts in France hand down a judgment on the substance of the case. Short critique The Court refers to Art. 11 Brussels IIa even if the parties did not ask for the application of the 1980 Hague Abduction Convention. The father had brought separate divorce proceedings before the French courts. The French court ordered to stay the proceedings on 24 November 2009, awaiting the decision of the Belgian courts on their jurisdiction, in accordance with Art. 19 Brussels IIa Regulation.