EUPillar C.B. v A.D. - 2008/KR/303 - Bruxelles, 15 December 2008

Summary

The parties have one child, K., born in 2003. They separated in October 2006. In 2007, the Juvenile Court of Charleroi agreed to certify an agreement reached by the parties on the custody of the child. Later, the mother met her new partner, who lives in France. She planned on joining him on 15 July 2008. Therefore, she applied for a new judicial decision on the exercise of parental responsibility to the Juvenile Court of Nivelles on 10 June 2008. The hearing in that case is set for 19 January 2009. Awaiting that hearing, the parents seised by voluntary appearance the President of the Court of First Instance of Nivelles to obtain provisional measures on 11 September 2008, on the basis of Art. 584 of the Belgian Code of Civil Procedure. The President of the Court granted custody to the mother with rights of access for the father. The father lodged an appeal against that decision. The Court of Appeal agrees that the case is urgent, since the mother has unilaterally decided to move to France with the child on 10 July 2008. However, the Court notes that the father has chosen not to institute return proceedings under the 1980 Hague Child Abduction Convention and Art. 11 Brussels IIbis Regulation and initiated summary proceedings before the Belgian courts instead. The return proceedings are subject to strict deadlines, while national proceedings aren’t. This has helped to bring about the factual situation caused by the mother. The Court refuses to grant the requested measures, because they might destabilise the child, who has been living with his mother and brothers and sisters (from a previous marriage) and has been going to school in France since September. Short critique