PIL instrument(s)

Case number and/or case name

X v Y - 08/12903/A - Civ. (réf.) Bruxelles, 9 January 2009

Details of the court

Belgium, First Instance

Articles referred to by the court

Date of the judgement

08 January 2009

Appeal history

CJEU's case law cited by the court

Summary

The parties were married on 20 February 1998 in Lublin, Poland and have four children, all of them born in Lublin (A/Z, B, C and D). Mr X seeks the immediate return of the two eldest, Z and B. On 9 July 2007, the Belgian central authority seised the Polish central authority pursuing the return to Belgium of the four children. The regional court of Lukow refused the return on 22 November 2007, based on Arts 12, §2 and 13(1)(b) of the Hague Abduction Convention. The decision was confirmed on appeal by the district court of Lublin III. On 26 June 2008, the decision was transferred by the central authority of Poland to the central authority of Belgium, in accordance with Art 11(6) Brussels IIa. Mr X was notified of the decision on 17 July 2008 (cf. Art 11(7)). On 26 September 2008, Mr X seised the president of the Court of First Instance of Brussels, challenging the decision of the Polish courts concerning the eldest children B and Z. Indeed, only in their case was the decision based on Art 13 Hague Abduction Convention, which is a requirement for the application of Art 11(6)-(8) Brussels IIa. Pursuant to Art 42(2)(c), the judge of origin who delivered the judgment referred to in Article 40(1)(b) shall issue the certificate referred to in paragraph 1 only if the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention. The district court of Lublin III found that the children would be exposed to harm on their return. In this case, the Polish courts did not take any action, via the central authorities (either Belgian or Polish) to assure themselves of the measures in place in Belgium, in particular proceedings before the Youth Court of Brussels, as required by Art 11(4) Brussels IIa. The order on non-return therefore defies the letter and spirit of the Regulation. However, the president of the Court of First Instance of Brussels must still take into account the evidence presented before the Polish courts. […] The Court of the place of habitual residence of the children does not have jurisdiction to decide on their return, however, it is competent to rule on the question of custody and this decision may imply their return. The president of the Court needs to balance the interests of the child. He considers that in this case, on the whole it is in the best interests of the children to return to their father – even if this entails that they will have to learn a new language and be separated from their siblings. Upon their return, a file will be opened with the aim to protect and assist them. The president of the Court delivers the certificate in accordance with Art 42 Brussels IIa. He considers that the children do not have the required degree of maturity to be heard, given their young age and the fact that they have been subject to manipulation by their mother’s family (cf. Art 42(a)). Short critique This is a good example of the second chance procedure.