EUPillar Public prosecutor v. D. and S.

Summary

Mr. D. has Belgian nationality, whereas Mrs. S. has dual Belgian-Hungarian nationality. They have three children, of Belgian nationality. The couple split up in 2003. Mr. D. agreed with the return of Mrs. S. to Hungary, with the children. Mr. D. visited the children several times, but had trouble seeing them or saw them in bad circumstances. On 13 December 2005, Mr. D. initiated divorce proceedings as well as summary proceedings to obtain provisional measures. The first judge took the decision that the children could stay with the father for the first week of the Christmas holidays. The public prosecutor lodged an appeal against this judgment, on the grounds that the first judge didn’t observe the rules of the Brussels IIa Regulation, especially Art. 12. DECISION OF THE COURT Pursuant to Art. 138, §6 of the Belgian Judicial Code, the public prosecutor has the right to intervene in civil matters when public policy requires him to do so. He has the right to appeal even when the parties don’t do so. In the case at hand, the public prosecutor maintains that the first judge took a decision without first establishing jurisdiction pursuant to the Brussels IIa Regulation. This goes against the public order of the European Communities and impinges on the jurisdiction of the Hungarian courts. It is not sufficient that a rule of public policy, such as the Brussels IIa Regulation, has been violated. For the public prosecutor to intervene, the judicial decision must be intolerable for the public order. This does not seem to be the case here, since the mother of the children, who has dual Hungarian-Belgian nationality, deliberately entered an appearance before the first judge and submitted legal briefs without challenging the jurisdiction of the court. It seems that the first judge could implicitly establish jurisdiction on the basis of Art. 12 Brussels IIa. Manifestly, at least one of the spouses has parental responsibility in relation to the child (Art. 12(a)), and the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses (Art. 12(b)). Finally, it is not contrary to the superior interests of the children to grant jurisdiction to the Belgian courts when the father and the children themselves are Belgian (Art. 12(b)). The decision of the first judge did not endanger the international and diplomatic interests of Belgium.