EUPillar Joined cases 2011/1033/C and 2011/1422/C - M. v. D.

Summary

Mrs D. has Belgian nationality and Mr M. has dual French-Algerian nationality. They were married in London on 22 August 2008 and had a child in 2010. Since their marriage, the family has divided its time between Algeria, London and Brussels. The child has always been registered at his mother’s domicile in Belgium. Several proceedings have been initiated in both the UK and Belgium. In the UK, a first procedure was initiated on 21 March 2011. Mrs D. said there was a risk of wrongful removal of the child by his father, who planned to take him to Algeria. The High Court of Justice of London recognised the urgency of the matter and the same day took a protective measure on the basis of Art 20 Brussels IIa: both parties were ordered to hand in their passports until the next hearing on 1 April 2011. On 5 May 2011, Mr M. brought divorce proceedings before the English courts. However, on 18 April 2011, Mrs D. had already brought an application for divorce before the courts of Brussels. The English Justice Coleridge decided in its decision of 5 May 2011 to stay the proceedings in favour of the Belgian court. Mr M. appealed on 25 May 2011. In the present proceedings, Mrs D. seeks to obtain a divorce, as well as provisional measures during the proceedings. The president of Court of First Instance of Brussels declared it has jurisdiction and that Belgian law is applicable in an order of 11 January 2012. The substance of the case would be treated at a later hearing. The case turned worse when the father picked up the child on 2 March 2012, but failed to return the child on the agreed date of 4 and then 8 March. On 9 March 2012, Mr M. appealed the order of 11 January. Mr M. argues that the first judge should have declined its jurisdiction in favour of the English courts, where proceedings relating to parental responsibility were already pending (cf. Art 19(2)-(3) Brussels IIa). The Court refers to ECJ C-296/10. The Court of Appeal notes that the cause of action of both procedures is not the same: the proceedings in the UK aimed solely to obtain provisional measures, while the parties are still married, while the proceedings in Belgium are concerned with an application for divorce. There is no lis pendens between proceedings relating to parental responsibility before and after the divorce. Moreover, in its decision of 5 May 2011, the English court had already decided to stay the proceedings until the Belgian court would have rendered a decision on its jurisdiction and therefore implicitly considered itself as the court second seised. The general rule of jurisdiction for cases relating to parental responsibility is found in Art 8 Brussels IIa. The Court must determine the habitual residence of the child at the time the court was seised. In C-523/07 the ECJ defined the habitual residence of the child. In its assessment, the Court of Appeal considers that in 2011, the child was barely 1 year old and that its habitual residence will therefore depend in large part on his parents’ place of residence. This was further explained by the ECJ in C-497/10. The mother of the child went often back and forth between Brussels and London, but the Court of Appeal decides that on the facts of the case it appears that she only returned to Brussels for medical and administrative affairs, and that the life of the couple was based in London. Therefore, the English courts have jurisdiction and the Court of Appeal rescinds the disputed decision of the first judge. However, even if the child was habitually resident in London at the time the court was seised, on 18 April 2011, the Court of Appeal considers that in the meantime, the habitual residence of the child has changed to Brussels, since the English decision of 5 May 2011 allowed the mother to take the child with her to Brussels on the condition that the father may see the child every other weekend in London. Therefore, the Court of Appeal requests the English court to assume jurisdiction pursuant to Art 15.