EUPillar P. v. S. - Bruxelles, 15 mai 2012

Summary

(Decision by the Brussels Court of Appeal) The parties have one child, G. S., born in Ixelles, Belgium in 2009. On 22 November 2010, Mrs. T. P. left for Costa Rica with G. to visit family, with Mr. Q. S.’s agreement – however, she failed to return on the agreed date. On 21 March 2011, she told Mr. S. she did not plan to return. Mr. S. commenced proceedings based on Art. 18 of the 1980 Hague Convention on 25 March 2011, and on 4 May he applied to the Brussels Juvenile Court, asking for joint parental responsibility over the child, but primary custody if the mother would stay in Costa Rica, and joint custody if she decides to return to Belgium. The Brussels Juvenile Court grants Mr. S.’s claim in its judgment of 18 July 2011. On appeal, Mrs. P. seeks primary custody of the child. The Court of Appeal examines its jurisdiction as required by Art. 17 Brussels IIa. At the time the Court was seised, the child was habitually resident in Belgium. The mere removal of the child does not change its habitual residence: the Court must take into account all the factual elements of the case. The Court considers that the father initiated proceedings for the return of the child a mere four days after its removal. The Court accepts its jurisdiction on the basis of Art. 8 Brussels IIa. Belgian law is applicable pursuant to Art. 35 of the Belgian Code on Private International Law. The Court of Appeal confirms the decision of the first judge.