EUPillar T. v. M. - Bruxelles, 16 mai 2012

Summary

Mr. M. T. is of Malian origin and later obtained Belgian nationality so that he now has dual nationality. In Bamako, Mali he married Mrs. M. M. – of Burundian origin – so that she acquired Malian nationality through marriage. They have three children: M., born in Kinshasa, A., born in Bamako and T., born in Etterbeek, Belgium in 2008. The parties initially lived with Mr. T.’s family in Mali, but moved to Belgium in 2007. Mr. T. works as a doctor and was posted in Niger in November 2008. Until the summer of 2010, he came back to Belgium for about two weeks every six months. The relationship between the parties worsened and on 25 July 2010, Mr. T. took the children with him to Niger without Mrs. M. being aware of this. On 16 August 2010, Mr. T. commenced divorce proceedings in Bamako. On 16 January 2011, the court in Bamako pronounced the divorce and confided custody of the children to their father. On 12 April 2011, Mrs. M. seised the Youth Court in Brussels. Mr. T. failed to enter an appearance. The Youth Court granted exclusive parental authority over the children to their mother and gave her primary custody. Mr. T. appealed this decision of the court. On appeal, he asks for the recognition of the judgment of the court in Bamako. DECISION OF THE COURT (i) Preliminary remark During the proceedings before the Youth Court, Mrs. M. had communicated to the Court only Mr. T.’s address in Belgium instead of his address in Niger. Also, she did not submit the judgment of the court in Bamako during the proceedings in Belgium. The Court of Appeal admits that Art. 18 of the Brussels IIa Regulation has not been observed, but not nevertheless this does not mean that the proceedings in first instance are inadmissible. The Court of Appeal considers that the rights of the defense have been respected during the appeal proceedings. (ii) International jurisdiction and applicable law At the hearing, the appellant declared that he does not contest the jurisdiction of the Belgian courts. However, pursuant to Art. 17 Brussels IIa Regulation, the Court must examine its jurisdiction of its own motion. At the moment the Brussels court was seised, the children were habitually resident in Niger, where they had been living for eight months and went to school. No court of a Member State has jurisdiction pursuant to Art. 8 to 13, therefore the jurisdiction must be determined by the Belgian Code on Private International Law (cf. Art. 14 Brussels IIa Regulation). The father was still registered in the registers of the population and thus domiciled in Belgium. The Belgian courts have jurisdiction. The parties expressly agreed that Belgian law would be applicable to their case. Short critique This is a child abduction case where the European and international legal instruments do not offer a solution to the conflict of laws.