EUPillar F.B. v. K.F. - 2011/AR/3129

Summary

Mr. F. B. and Mrs. K. F. were married in The Netherlands on 31 May 2003. The couple lived together in The Netherlands. They have two children, F. and S., who were born in The Netherlands in 2004 and 2006 respectively. The mother has been staying in Belgium with the children since 2010. On 2 August 2011, the Public Prosecutor, acting as agent of Mr. F. B., requested the immediate return of the children before the court of First Instance of Brussels. The Court of First Instance refuses the father’s request to return the children to the Netherlands. Pursuant to Art. 11(6) Brussels IIbis, the courts of the habitual residence of the child before the abduction have the power of the last word. Also, recital 17 of the Brussels IIbis provides that such a decision [on non-return] could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Therefore, it is not possible to appeal a decision on non-return taken on the basis of Art. 11(6) Brussels IIbis founded on Art. 13 Hague Abduction Convention. This is confirmed by Art. 1322sexies of the Belgian Judicial Code. However, it is possible to lodge an appeal when the court rules that there is no “wrongful removal or retention” within the meaning of the Brussels II Regulation, in which case there is no transmission of the decision to the courts of the State of origin. It must be noted that in this case, the order on non-return had not been transmitted to the courts in The Netherlands (where the children were habitually resident immediately before the abduction). Art. 2(11) Brussels IIbis defines the term “wrongful removal or retention”. The first judge considered that the application of the Public Prosecutor was manifestly unfounded because Mr. B. had explicitly given his permission to register the children in Belgium – thus, that there was no wrongful removal or retention. On appeal, it is argued that Mr. B. never gave such permission. Art. 3 Hague Abduction Convention determines when the removal or the retention of a child is to be considered wrongful. Art. 5 Hague Abduction Convention defines "rights of custody" as rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence. It is uncontested that before the removal to Belgium, the children were habitually resident in The Nederlands. Therefore, Dutch law is applicable on the question of custody over minor children. Under Dutch law, Mr. B. and Mrs. F. jointly exercised parental authority over the children (cf. Art. 251, §1 Dutch Civil Code). Also under Dutch law, decisions on the place of residence of the children entirely fall within the scope of the exercise of parental authority. Mr. B. claims that he knew the children went to Belgium during the summer holidays in 2010 to visit their maternal grand-parents. Only at the end of the summer, it became clear that the mother did not want to return to The Netherlands with the children. At that point, Mr. B. argues that he gave his permission for the children to go to school in Belgium, but only temporarily while he tried to repair his relationship with their mother and bring the family back together. The Court agrees with this interpretation of the facts. The mother, on the other hand, initiated criminal proceedings against the father for sexual abuse of their daughters. However, the alleged sexual abuse was never corroborated by any psychological report. Finally, the Court of Appeal rescinds the judgment of the Court of First Instance, finding that the father did not give permission for the permanent move to Belgium. The requirements of the grounds for refusal of Arts. 12 and 13 Hague Abduction Convention are not fulfilled. The Court rules that the children must immediately be returned to the Netherlands.