Case number and/or case name
P v V - Bruxelles, 25 October 2012
Summary
Mrs V., an Italian national, and Mr P., a Portuguese national, met in February 2010 in Brussels while they were both working for the European institutions. They married in 2011 in Portugal and shortly thereafter they moved in together in Brussels and Mrs V. gave birth to their child, L. Mr P. left the matrimonial home in December 2011. In May 2012, Mrs V. left with the child for Italy and refuses to return.
On 1 June 2012, she brought an application for legal separation before the courts of Cassino in Italy and simultaneously commenced criminal proceedings against her husband for mistreatment of his family and child.
Mr P., who was not aware of these proceedings, brought urgent divorce proceedings before the president of the Court of First Instance of Brussels on 20 June 2012. When Mrs V. informed him of the steps she had taken in Italy, he changed his request to include the order to return the child and to grant him primary custody of the child.
The first judge decided to stay the proceedings on the basis of Art 19(2) Brussels IIa until the Italian courts would render their decision. Mr P. appealed this decision on 25 July 2012.
On 13 July 2012, Mr P. applied to the Central Authority to obtain the return of the child, in application of the provisions of the Hague Child Abduction Convention. The hearing in this case is scheduled for 29 October 2012.
DECISION OF THE COURT
1. Habitual residence of the child
It appears from all the factual elements of the case that before Mrs V. went to Italy, the child was habitually resident in Brussels.
It is clear that the Belgian courts have jurisdiction on the basis of Art 8 Brussels IIa and Art 10 in conjunction with Art 11.
2. Art 19
It must be examined whether the procedures before the Italian and Belgian courts respectively, have the “same cause of action”. The Court decides that this is the case. The object of the actions (measures relating to parental responsibility and custody) and the cause of these actions (the separation of the parents) are the same.
The Italian court is the first seised, on 1 June 2012, therefore the second court must decline jurisdiction in favour of the Italian court – even if Mr P. was notified only on 6 November 2012.
3. Art 20 Brussels II
Art 20 allows the courts of the Member State where one of the parents of a child resides to take provisional measures in case of urgency, especially where the child has been unlawfully displaced and the parent is prevented from having contact with the child. In Case C-403/10, the ECJ decided that “a provisional measure in matters of parental responsibility ordering a change of custody of a child is taken not only in respect of the child but also in respect of the parent to whom custody of the child is now granted and of the other parent who, following the adoption of the measure, is deprived of that custody”.
The Court of Appeal decides that the condition of urgency is fulfilled, since at present there are no legal measures in place which allow the father to see his child. The Italian court in Cassino fixed the date of the first hearing six months after the proceedings were initiated, which is incompatible with the urgency of the situation. Moreover, the Italian court must stay the proceedings until there is a decision in the case brought under the Hague Convention.
It cannot be admitted that the Belgian Court, too, must stay the summary proceedings for provisional measures. It must be allowed to take provisional measures – otherwise, the unlawful situation created by the mother of the child would be allowed to persist for months, which cannot be in accordance with the will of legislator.
4. Art 15 Brussels IIa
The Court of Appeal decides that this provision cannot be applied to measures taken on the basis of Art 20, since that would be contrary to the urgent character of the situation and that more fundamentally, Art 15 should never be used to cover and legitimise a situation of child abduction