PIL instrument(s)

Case number and/or case name

M.M. v. I.G - 05/16/C - Civ. (réf.) Bruxelles, 6 February 2007

Details of the court

Belgium, First Instance

Articles referred to by the court

Date of the judgement

05 February 2007

Appeal history

CJEU's case law cited by the court

Summary

The parties have French nationality. They married in 1998 and they have three children. They separated in 2004. The mother went back to France with the children. Return proceedings under the 1980 Hague Child Abduction Convention were launched in France. The French courts ordered the return of the children. The order was executed on 7 January 2005. Mrs. G. initiated proceedings in France, notably she had requested Mr. M.M. to appear before the courts for a conciliation attempt, by application of 9 July 2004. After several interlocutory judgments and appeals, the French court (the “juge des Affaires familiales du Tribunal de Grande Instance de Paris”) finally confirmed, on 24 October 2006, that the conciliation was unsuccessful, but declined jurisdiction for the aspects of the case relating to parental authority. An appeal against that decision is still pending. Mr. M.M. had filed an application in Belgium on 30 November 2004 for provisional measures to govern the parties’ situation during the divorce proceedings (on the basis of Art. 1280 Belgian Judicial Code). On 18 January 2005, the president of the Court of First Instance had already granted, as an urgent measure in summary proceedings, main custody to the father and rights of access to the mother. Mrs. G. wants joint parental authority. The scope of the present decision is limited to the custody of the children during the spring holidays. The children are habitually resident in Belgium. Therefore, the Belgian courts have jurisdiction (cf. Arts. 1 and 8 Brussels IIa). The Belgian president of the Court of First Instance considers that the Brussels IIa Regulation is applicable to judgments that have been handed down after 1 March 2005, if the proceedings were initiated before that date but after the entry into force of the Brussels II Regulation (no. 1347/2000). Short critique The Court also issues a certificate pursuant to Arts. 40 and 41 Brussels IIa. It decides not to hear the children because there is no sufficient time and the decision is only limited in scope. The decision concerns only the custody of the children during the upcoming 1-week spring holiday. Even though the court's reasoning is understandable, urgency is not one of the exceptions in Art. 41(2)(c) and cannot justify not hearing the children.