PIL instrument(s)

Case number and/or case name

O.C. v H.A. - 06/475/C - Civ. (réf.) Bruxelles, 13 February 2007

Details of the court

Belgium, First Instance

Articles referred to by the court

Date of the judgement

12 February 2007

Appeal history

CJEU's case law cited by the court

Summary

In a previous decision of 31 July 2006, the judge had allowed the mother to live in Germany and the father to live in Sweden. The Court gave permission for the mother to take the two children with her. The children live in Germany, where they go to school, and they don’t speak the language of the proceedings. The judge offered that the parties could request a transfer of the case to the courts in Germany on the basis of Art. 15 Brussels IIbis. Both parents were heavily opposed to the suggestion. In those circumstances, without the consent of either party, the Court is unable to transfer the case. The mother suggested that the children would come to court on 2 March 2007, accompanied by a translator, to be heard. In the meantime, the parties requested the judge to rule on the planning during the spring and Easter holidays. They also request the issue of a certificate pursuant to Art. 41 Brussels IIa. The Court can only issue such a certificate if the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity. In matters of parental responsibility, the recognition and enforcement of a judgment can be refused if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought (cf. Art. 23(b) Brussels IIa). This exception in case of urgency isn’t mentioned in Art. 41, but it useful to extend it to the issue of a certificate by analogy. In this case, the spring holidays will be there too soon for the parties to obtain a declaration of enforceability of the judgment in the State of enforcement. There is no time either to hear the children. In these circumstances, the Court decides to issue the certificate. Short critique This decision is only limited in scope. It concerns the planning of the Christmas holidays of a family where the parents recently split up. The Court issues a certificate ex officio. The Court does not hear the children because of practical reasons (unrelated to their age or degree of maturity). The Court applies the exception of urgency provided in Art. 23(b) Brussels IIa, by analogy, to the deliverance of a certificate.