EUPillar S.B.B. v. M.G. - Brussels, 17 June 2010

Summary

Mr G and Ms BB met while they were both working for the European Commission in Brussels. They have one child, L. When Ms BB lost her job, she went back to Spain over the Christmas holidays in December 2008. On 19 January 2009, Ms BB, who had come back to Belgium for a few days without L, asked for L to be struck from the population register. On 22 January 2009, Mr G lodged a complaint against Ms B for wrongful retention of L, and quickly thereafter commenced proceedings for the immediate return of the child. On 20 April 2009, the Court of First Instance no. 10 of La Corogne in Spain dismissed Mr G’s claim. On 8 May 2009, the Belgian central authority requested a copy of the court order on non-return. Mr G seised the president of the Brussels Court of First Instance, pursuant to Art 11(7) Brussels IIa. The president of the Court of First Instance granted his requests by order of 20 October 2009. This decision was appealed by Ms BB on 24 December 2009. On appeal, Ms BB asks the court to stay the proceedings until the end of ongoing criminal proceedings for failure to present a child, and until two further cases between the parties are joined to the present case. In the alternative, she contests the international jurisdiction of the Belgian courts and therefore the order of the president of the Court of First Instance should be rescinded. The parties initiated multiple proceedings before both the Belgian and the Spanish courts, several of which are still ongoing. i. On the international jurisdiction of the court By deciding on the custody of the child, the court may either confirm or rescind the order on non-return issued by the court seised in accordance with the Hague Abduction Convention. The Court of Appeal finds that the Spanish court clearly motivated its decision by referring to the two first grounds listed in Art 13(a) Hague Convention, in particular that the father was not actually exercising the custody rights at the time of removal or retention. Moreover, even if the Spanish decision were founded on Art 3 Hague Convention – which seems hard since it is Art 13 which refines Art 3 and not the other way around –, Ms B’s argument could not be withheld without ultimately rendering the mechanism of Art 11 Brussels IIa ineffective and the principle of immediate return of the child remaining a dead letter. ii. On the request to stay the proceedings The adage “le criminal tient le civil en état” should make way for the rapidity required by proceedings initiated on the basis of Art 11 Brussels IIa. iii. On the rights of custody of L The court examines the question of the custody of L, in accordance with Art 11(7) Brussels IIa. The determining factor when ruling on the merits of the case, is the best interest of the child. The Court of Appeal decides that the circumstances have changed since the decision of the first judge. Ms BB has married and has a second child with her new husband. Therefore, she would no longer be able to return permanently to Belgium with L The return of L would entail separation from her mother at a very young age. Also, Mr G has never taken care of L on his own. The initial removal of L by her mother was wrongful, but the Court considers that it cannot sanction this reprehensible behaviour at the expense of the best interests of the child. Mr G's claims for primary custody of the child are unfounded. The child should not return to Belgium. The Court of Appeal rescinds the decision of the first judge. The Court adds, for the sake of completeness, that the Spanish courts are better placed to decide on the access rights of Mr G., pursuant to Art 15 Brussels IIa. It does not actually request such a transfer because Mr G did not actually lodge any claims on access rights. Since the Court does not grant Mr G's claims, the request for a certificate within the meaning of Art 42 Brussels IIa must also be dismissed. The Belgian Supreme Court confirmed this decision in its judgment of 4 March 2013.