PIL instrument(s)

Case number and/or case name

Public prosecutor v. N.T. - Bruxelles, 28 November 2006

Details of the court

Belgium, Second Instance

Articles referred to by the court

Date of the judgement

27 November 2006

Appeal history

CJEU's case law cited by the court

Summary

Mrs. N.T. (born in 1969) declared before a notary on 4 October 2005 that she would accept the unofficial guardianship of her sister (born in 1992) in accordance with Arts. 475bis-475septies Belgian Civil Code. On 4 November 2005, she initiated proceedings before the Brussels Juvenile Court to obtain the homologation of that agreement. The public prosecutor handed down a negative advice in the matter, but the first judge homologated the agreement anyway. The public prosecutor appealed. As to the jurisdiction of the Belgian courts, the Court of Appeal considers the following elements: the child currently lives in Morocco with her father; her mother passed away a few years ago; the father is in bad health and can’t take charge of his daughter, therefore he gave the guardianship to Mrs. N. T. by “kafala”; Mrs. N.T. couldn’t obtain the recognition of the “kafala” in Belgium. The Belgian courts have jurisdiction to recognise the unofficial guardianship agreement pursuant to Art. 12(3) Brussels IIa. That provision stipulates that “The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where: (a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State; and (b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.” The Court of Appeal decides that the child has a substantial connection with Belgium, since her father entrusted her to her sister, Mrs. N.T., who has Belgian nationality and lives in Belgium for over 10 years. The jurisdiction of the Belgian courts has been accepted expressly or at least in an unequivocal manner. Finally, the jurisdiction of the Belgian courts is in the best interests of the child since no other court could efficiently intervene in this matter.