EUPillar M.V. v. Public prosecutor

Summary

FACTS OF THE CASE In a judgment of 24 June 2003, the Brussels Court of Appeal granted custody of the child, M.R. and her sister J., to their mother, M.V., who lived in Spain at the time. The father, Y.M., retained rights of access to see his children. It was ordered that they would return to see him regularly. M.V. and her new partner allegedly tried to murder Y.M. and then lived underground until their arrest three years later. The children showed signs of abuse and malnutrition. M.R. and J. were sent to a specialised institution after the Spanish child protection services intervened. Their father visited them six times in three months. M.V. was held in a Belgian prison, in Mons, but refused to give her consent to the return of the children to Belgium. The Belgian public prosecutor, cooperating with the Belgian and Spanish Central Authorities and the Spanish public authorities, then initiated proceedings to obtain their return. In its decision of 31 July 2006, the first judge decided that the child, M.R., would have to repatriated and temporarily placed outside of the family home to ensure her treatment, education and professional training. The mother and the legal counsel of the child lodged an appeal, first of all contesting the international jurisdiction of the Belgian courts. DECISION OF THE COURT The Court of Appeal applies the provisions on the wrongful retention of children of the Brussels IIbis Regulation. The last habitual residence of the children was in Belgium, before the Brussels Court of Appeal allowed them in 2003 to go to Spain, under certain conditions such as they would still see their father – conditions that were never met. The conditions described in Art. 10(b)(i)-(iv) aren’t fulfilled. The first judge implicitly but certainly took its decision on the basis of Art. 11(4) Brussels IIbis (“A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.”). The Brussels IIbis Regulation goes one step further than the Hague Convention, since the return of the child cannot be refused if it is established that adequate arrangements have been made. It isn’t enough that theoretical arrangements for protection are in place, but that actual steps have been taken and the arrangements are made. The seising of the youth assistance counsellor and of the Juvenile Court itself, on the basis of Decree of the French Community on Youth Assistance of 4 March 1991, is the means to prove to the Spanish courts that adequate arrangements are in place. Only the Spanish courts have jurisdiction to order the return of the children. Short critique: See decision of the Court of Cassation of 9 May 2007