PIL instrument(s)

Case number and/or case name

Public prosecutor v. B.D., B.M and C.A. - Gent, 5 September 2005

Details of the court

Belgium, Second Instance

Articles referred to by the court

Date of the judgement

04 September 2005

Appeal history

CJEU's case law cited by the court

Summary

This procedure is a claim for interim measures as a part of a child protection program. The applicability of Regulation 2201/2003 is at issue. The case relates to a matter of public law. However, the placement of the child in a foster family or in institutional care also falls within the scope of Brussels IIa (Art 1(2)(d)). There is a criminal investigation going on against the parents for selling the child. Art. 1(3)(g) excludes measures taken as a result of criminal offences committed by children from the scope of the Regulation. Art. 1(3)g) does not mention youth protection measures. Moreover, measures to protect the child are included (Recital 5). The habitual residence of the child (B.D.) was and still is in The Netherlands. That is not disputed. The Dutch courts have jurisdiction on the basis of Art. 8 Brussels IIa. This appears clearly from the letter sent by the Dutch Juvenile Court of Utrecht on 28 June 2005, whereby it asks the Belgian Juvenile Court of Oudenaarde to accept the case pursuant to Art. 15 Brussels IIa. As appears from the wording of Art. 15, the court wouldn’t be able to transfer the case without accepting jurisdiction first. (The Court of Appeal notes that the earlier decisions taken by the Utrecht Juvenile Court and the Utrecht summary court (“Voorzieningenrechter”) of 25 May 2005 and 15 July 2005 respectively were merely provisional decisions taken on the basis of Art. 20 Brussels IIa.) Art. 9(1) cannot be applied since the three-month period has been exceeded. B.D. moved to the Netherlands on 1 March 2005. The proceedings were initiated by the public prosecutor on 24 June 2005. Art. 10 cannot be applied because there is no “wrongful removal” of the child. The parents B.M. and C.A. agreed to the removal of the child, because they agreed to sell the child. That might be a criminal offence, but they still agreed. Arts. 12 and 13 are not applicable because the case is unrelated to divorce proceedings. Art. 20 is not applicable because the child is not present on Belgian territory. The Court needs to decline its jurisdiction of its own motion pursuant to Art. 17. Art. 19(2) contains a rule on lis pendens. The Dutch court of Utrecht was the first seised and took its first decision on 28 May 2005. It decided to transfer the case on the basis of Art. 15. However, none of the parties consented to the transfer. The Brussels IIa Regulation is mandatory, it is a matter of public policy. Therefore the reference was not valid and the jurisdiction remains with the Dutch court. The Dutch court will not be able to transfer the case back to Belgium, it will have to accept its jurisdiction (cf. the “Practical Guide for the application of the new Brussels II regulation” published by the European Commission). Short critique