EUPillar K. v. E. - Bruxelles, 5 May 2009

Summary

Mr E requested joint parental authority in relation to the child, N., and agreed to grant main custody to the mother, who lives in Poland. He did want a right to contact his child at least twice a week and a regular right of access. Mrs K objects to the jurisdiction of the Belgian courts. The first judge accepted jurisdiction. Mrs K appealed against this judgment. Mr E has dual French-Moroccan nationality while Mrs K has Polish nationality. On 1 August 2007, Mrs K left for Poland with the child. Mr E kept contact with this child through Skype and also visited 9-10 times per year. Later, the relationship between the parties turned sour anyway and Mr E seised the Belgian courts. Mrs K also seised the Polish courts in February 2008, but they stayed the proceedings in conformity with Art 19(2) Brussels IIa. DECISION OF THE COURT Pursuant to Art 12 of the Belgian Code on Private International Law and Art 17 Brussels IIa, the Court must examine its jurisdiction of its own motion as soon as the dispute has an international element. The European legislator chose to establish jurisdiction with the court of the habitual residence of the child (Art 8 Brussels IIa). This choice was made in the best interests of the child, since that court is best placed to take decisions on parental responsibility. To determine the habitual residence of the child, two criteria are relevant: the intention and the duration. In the case at hand, N. was born in Poland in 2006. He lived in Belgium from 1 January 2007 until 1 August 2007. At the time the court was seised, on 3 December 2007, the child was resident in Poland and he remains there to this day. Manifestly, the habitual residence of the child is in Poland. Mr E doesn’t contest that. He argues that the Belgian courts have jurisdiction on the basis of Art 10 Brussels IIa. It is established that before 1 August 2007, the spouses and the child were habitually resident in Belgium. Neither Mr E nor Mrs K had the right to unilaterally change the child’s habitual residence, whether under Polish or Belgian law. It is not contested that the child went to Poland with the agreement of the father, on 1 August 2007. He even bought the child’s plane ticket. Mr E argues however that this stay was supposed to be temporary. This is proven by the e-mails exchanged between the parties in August and September 2007. He repeatedly asked when Mrs K would return to Belgium, and she said she didn’t know. It is clear that she never asked for Mr E’s permission to stay in Poland with the child for such an amount of timE Even if Mrs K may not have done so consciously, she did commit a “wrongful retention” in the sense of Art 2(11) Brussels IIa. Mrs K submits two written declarations signed by Mr E, who attests that he agrees that Mrs K can have custody of the child and that she can choose its place of residencE The documents date from 23 February 2008 and 16 August 2008. It is true that also in the document instituting the proceedings in Belgium, Mr E doesn’t request the return of the child to Belgium. He hasn’t initiated return proceedings on the basis of the 1980 Hague Child Abduction Convention either. He agrees to visit the child regularly in Poland. It is true that Mr E was confronted with a fait accompli created by Mrs K, and that he has proven remarkably calm and conciliatory. Still, the Belgian courts lost jurisdiction when he acquiesced in the retention of the child. Mrs K’s appeal is well-founded. For the sake of completeness, the Court notes that the conditions of Art 10(b)(i) Brussels IIa are also satisfied. Finally, the Court decides that it does not have jurisdiction to take provisional measures pursuant to Art 20 Brussels IIa since the child isn’t present on Belgian territory. The Court correctly applies the Brussels IIa Regulation. This case is in line with other Belgian case law which considers the presence of the child to be a condition to establish jurisdiction to order provisional measures (see report).