EUPillar R. v. B. - Bruxelles, 11 March 2013

Summary

(Decision by the Brussels Court of Appeal) Mr. R., the applicant, is a Belgian national, while the defendant, Mrs. B., is Spanish. The defendant was employed by the European Commission in Brussels. On 10 November 2011, the applicant seised the Brussels Juvenile Court to obtain measures relating to the exercise of his parental responsibility over the parties’ common child, access rights and maintenance. In a first judgment of 14 March 2012, the first judge enacted measures including a right of access for the father every Saturday, Tuesday and Thursday. Soon after this judgment, the mother announced she would move to Luxembourg and take their daughter with her. The first judge authorised the move and fixed new measures in his judgment of 12 June 2012, against which the father filed an appeal. The mother argues that the Court of Appeal does not have jurisdiction, since the child lawfully had moved from one Member State (Belgium) to another (Luxembourg) almost five months before the appeal had been filed (on 23 November 2011) (cf. Arts. 8 and 9 Brussels IIa Regulation). The Court of Appeal disagrees. The request for measures on access rights had been brought before the first judge before the move of the mother with the child. The procedure before the Court of Appeal is not a new procedure, but is a mere extension of the first one. The international jurisdiction acquired by the first judge cannot be questioned or revoked now. A different interpretation would refuse the father’s right to appeal. Art. 9 does not change this either, since that provision contains a specific ground of jurisdiction which serves to examine the jurisdiction of the courts on the day it is seised. In the case at hand, the Belgian courts had been seised before the lawful move of the child and therefore this provision is not applicable. On the other hand, the only provision in the Brussels IIa Regulation that could warrant a transfer to another court is Art. 15, which allows the courts of a Member State having jurisdiction as to the substance of the matter to transfer the case to a court of another Member State which would be better placed to hear the case, when, for example, that Member State has become the habitual residence of the child after the first court was seised. However, the Court of Appeal decides that the child has not acquired its habitual residence in Luxembourg, even after a stay of eight months. The move may have been lawful, that decision is currently under appeal and it is clear that the father is opposed to the move and still seeks the permanent residence of the child in Belgium. Therefore, Mr. R.’s appeal must necessarily be examined by the Belgian courts.