EUPillar B. and D. v. C. - 2007/JR/10 - Bruxelles (jeun.), 4 April 2007

Summary

The appellants, Mr D and his wife Mrs B., have three children. The respondent, Mrs C., is the maternal grandmother. She claims a right of access to see her grandchildren, on the basis of Art 375bis Belgian Civil Code. The parents contest the jurisdiction of the Belgian courts because they have since moved to France. The first judge withheld its jurisdiction. Now, on appeal, the parents again submit their objections as to jurisdiction. The Court of Appeal decides that, since the case relates to parental responsibility and rights of access, it falls within the scope of the Brussels IIa Regulation. The Court then examines its jurisdiction on the basis of Art 8 Brussels IIa: jurisdiction lies with the courts of the Member State where the child was habitually resident at the time the court was seised. The first judge was seised on 16 March 2006. The parents argue that they moved to France on 14 March 2006 and that the children were habitually resident there since 15 March. The Court considers that to determine the habitual residence of the children, it must look at two elements: the intention of the parties and a durability factor. It must take into account all the facts and indications. The mere fact that the children have moved or their enrolment in the population register are not sufficient on their own. The Court withholds the following elements: - On 16 March 2006, the children had been enrolled in the population register of their Belgian municipality for a mere 10 days. - The parents confirm that their move to France was inspired by the need to distance themselves from their present lives and in particular from Mrs C. - The children were not immediately enrolled in a new school in France but were kept in school in Belgium. The parents submitted sick notes to the school to justify the absence of their daughter. - It appears from the documents submitted to the court that the children and their parents were in fact present in France in March 2006, but the elements of evidence which are able to prove that the parties actually meant to stay in France for the long term – such as the opening of a bank account – dates from April 2006 The Court concludes that on 16 March 2006, the children’s habitual residence was still in Belgium. They were still closely connected to their Belgian “network” (consisting of school, friends and family) and it can’t be expected that they forged social links with the country where they had just arrived the previous day. However, the Court suggests to transfer the procedure to the French courts pursuant to Art 15(3)(a) Brussels IIa. The Court sends a request to the Tribunal de Grande Instance of Rodez, France and awaits its answer, which it should receive within six weeks (cf. Art 15(5) Brussels IIa). This decision makes a circumstantial analysis of the “habitual residence” of the child at a time when there was no case law of the ECJ yet. The Court applies two cumulative criteria: intent and durability of the stay. It looks at all the facts and looks for social links between the children and their new place of residence. It also takes into account practical criteria, such as the court that is best placed to collect evidence, order social investigations and rule on the issue. The overriding criterion can be found in the best interests of the child. These considerations lead it to request a transfer to the French courts. The Court uses the Judicial Atlas to find the competent French court. It should further be noted that the judge in first instance had assumed jurisdiction on the basis of Art 44 of the Belgian Youth Protection Law of 8 April 1965. The Appeals court correctly applies Brussels IIa. This decision should be compared to a decision of the Brussels Court of First Instance (Tribunal de première instance) of 25 April 2006, where the Court of First Instance decided it did not have the power to request such a transfer when hearing a case on appeal.