EUPillar M.G. v. S.B.B. - 09/9117/A - Civ. (réf.) Bruxelles, 20 October 2009

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 B lost her job at the European Commission, 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 in Spain 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, arguing that pursuant to Art 13(a) of the Hague Abduction Convention the judicial authority of the requested State is not bound to order the return of the child if the person, which opposes its return establishes that the person having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, and that the displacement was known and agreed to by the Mr G On 8 May 2009, the Belgian central authority requested a copy of the court order on non-return. On 7 August 2009, Mr G seised the president of the Court of First Instance of Brussels, pursuant to Art 11(7) Brussels IIbis. Ms BB argues that Arts. 11(6)-(8) Brussels IIa are not applicable in this case, since the Spanish judge founded its decision on Art 3 of the Hague Convention and not on Art 13. The president of the Court of First Instance does not follow Ms BB’s argument. It is Art 13 which allows to define Art 3 and not the other way around. Art 3 merely defines the scope of the Convention, while Art 13 is concerned with the “return of children”. Moreover, the Spanish judge explicitly referred to Art 13(a) and the (lack of) custody rights of the father. Ms BB then argues that Mr G did not have rights of custody. She admits that at the time of the removal of the child to Spain, the child was habitually resident in Belgium, but that since she was born in Spain, Spanish law is applicable. The president of the Court of First Instance finds that “custody” within the meaning of the Hague Abduction Convention must receive an autonomous interpretation. Art 5 Hague 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. Under Belgian law, the right to determine the child’s place of residence is part of the rights of parental authority. Finally, pursuant to Art 11(8) Brussels II Regulation, the president of the Court of First Instance must pronounce a decision on the substance of the custody rights, a decision which may go against the order of non-return of the Spanish court. The president of the Court of First Instance grants the requests of Mr G, the parental authority will be exercised jointly by the parties, pursuant to Art 374 Belgian Civil Code. The president of the Court decides it is in the best interests of the child to return with her father in Belgium. For a short critique see the last decision in this case of the Court of Cassation of 4 March 2013.