EUPillar T. v. P. - Civ. (réf.) Bruxelles, 15 June 2006

Summary

The father, Mr T., seises the president of the Court of First Instance of Brussels in summary proceedings, to obtain provisional measures granting him the primary custody of his two children, Y. T. and N. T., after separating from their mother. The mother, Ms P., took the children with her to France. From the beginning of 2005, the parties regularly stayed in Belgium. In September 2005, they moved in with the parents of Mr T. in Belgium. From January 2006, Ms P. regularly returns to France with one of the children. On 23 April 2006, she signed a document promising that N. T. would return to her habitual residence on 3 May 2006. On that date, nor Ms P nor N. T. returned to Belgium. On 4 May 2006, Mr T. seised the president of the Court of First Instance of Brussels by way of a unilateral application of extreme urgency. The next day, the president of the Court issued an order to return the children to their father within 24 hours of the notification of the decision. The decision was transmitted to Ms P. on 15 May 2006. On 11 May 2006, Ms P. had picked up Y. T. from school and also taken him with her to France. DECISION OF THE COURT Ms P. believes that the question of the habitual residence of the child must be resolved by the court competent to hear the substance of the case, and that the Belgian courts are competent to decide merely on urgent and provisional measures within the meaning of Art 20 of the Brussels II. The president of the Court cannot follow this argument. Art 20 presupposes a real territorial link and is therefore not applicable now that the children are not present on Belgian territory any longer. In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State. However, Art 10 Brussels II confers jurisdiction over the question of custody only and not over the question of the return of the child in case of wrongful removal. The question of wrongful removal is governed by Art 11 Brussels II which refers to the Hague Abduction Convention, all while completing it. Art 12 Hague Abduction Convention provides that the application for return of the child must be lodged before the judicial or administrative authority of the Contracting State where the child is. Only where this Contracting State (the requested State) refuses the return of the child that the jurisdiction of the Contracting State of origin must deliver a final decision on the abduction. These courts have “the power of the last word” over the rights of custody and, indirectly, over the (non-)return of the child. Therefore, at this moment, the president of the Court does not have jurisdiction to rule on the request of Mr T. for return of the children. The president of the Court then examines whether the habitual residence of the children before the abduction was indeed in Belgium. He concludes that this is the case (they went to school and to kindergarten in Belgium, while they only spent holidays in France). The Belgian court is the first seised within the meaning of Art 19 Brussels II. The president of the Court grants primary custody to the mother, but provides a broad right of secondary custody to the father amounting to 10 days per month. Since the president of the Court is not competent to rule on the return of the children, he does not determine the place where the custody shall take place and does not fix the domicile of the children. The situation will be revised in September in light of the other court decisions which are bound to intervene in the meantime.