Referring court and Member State
Belgium, Second Instance, Cour d'appel de Bruxelles
Summary
A child born in Poland in December 2011 to a Polish mother and a British father moved to Belgium with his mother in July 2012 and the parents resided there separately. In October 2013, the mother informed the father that she was taking the child on holiday to Poland. Shortly thereafter, the father brought an action before a Belgian court (the tribunal de la jeunesse de Bruxelles) seeking a ruling on the how parental authority over the child was to be exercised and accommodation rights with respect to the child. He also applied for secondary accommodation rights in respect of the child to be granted to him as a matter of urgency. When the father realised that the mother was not intending to return to Belgium with the child, he amended both applications and sought the exclusive parental authority, primary accommodation rights in respect of the child and an order prohibiting the mother from leaving Belgium with the child. The mother argued that Belgian courts did not have jurisdiction to hear the case and sought the transfer of the case to Poland pursuant to Article 15 of the Regulation, on the basis of the child’s residence in Poland and a particular connection between the child and the jurisdiction of the Polish courts. The judge hearing applications for interim measures considered that he had jurisdiction and, provisionally, upheld the father’s application. The tribunal de la jeunesse de Bruxelles confirmed that the Belgian courts had jurisdiction and held that parental authority should be exercised jointly by the parents, granted to the mother primary accommodation rights in respect of the child and temporarily granted to the father secondary accommodation rights on alternate week-ends, it being his responsibility to travel to Poland. The father appealed as he felt that the judgment approved the wrongful removal of the child to Poland. He also brought an application for the return of the child in Poland under the 1980 Hague Abduction Convention. The relevant Polish court acknowledged that the removal of the child from Belgium had been wrongful and that the child had had its habitual residence in Belgium prior to the removal; however, it refused the return application on the basis of Art 13(1)(b) of the Hague Convention. The non-return order was transmitted to the Belgian authorities pursuant to Art 11(6) of the Regulation. In accordance with Belgian law, the case was allocated to a family court. These proceedings continued in parallel to the first set of proceedings until the family court transferred the case to the court of appeal to which the father had appealed in the other proceedings. The court of appeal then stayed the proceedings and asked the CJEU whether Article 11(7) and (8) of Brussels IIa precluded a Member State from assigning jurisdiction to a specialist court to consider situations of parental child abduction, where a court or tribunal was already seised in substantive proceedings regarding parental responsibility with respect to the child. The Court noted that the Regulation did not seek to establish uniform substantive and procedural rules. Nevertheless, it was vital that such national rules did not impair the effectiveness of the Regulation and were compatible with the child’s fundamental rights contained in Art 24 of the Charter (in particular, the right of the child to maintain on a regular basis personal relationships and direct contact with both of his or her parents), and the objective that procedures should be expeditious. Accordingly, the Court held that Article 11(7) and (8) ‘must be interpreted as not precluding, as a general rule, a Member State from allocating to a specialised court the jurisdiction to examine questions of return or custody with respect to a child in the context of the procedure set out in those provisions, even where proceedings on the substance of parental responsibility with respect to the child have already, separately, been brought before a court or tribunal.’